411 F.Supp.3d 333 (Foreign Intel.Surv.Ct. 2019), Misc. 19-02, In re Accuracy Concerns Regarding FBI Matters Submitted to the Fisc

• Docket Nº: No. Misc. 19-02
• Citation: 411 F.Supp.3d 333
• Opinion Judge: ROSEMARY M. COLLYER, Presiding Judge
• Party Name: IN RE ACCURACY CONCERNS REGARDING FBI MATTERS SUBMITTED TO the FISC
• Case Date: December 17, 2019

Page 333

411 F.Supp.3d 333 (Foreign Intel.Surv.Ct. 2019)

IN RE ACCURACY CONCERNS REGARDING FBI MATTERS SUBMITTED TO the FISC

No. Misc. 19-02

United States Foreign Intelligence Surveillance Court, Washington, D.C.

December 17, 2019

Page 334

ORDER

ROSEMARY M. COLLYER, Presiding Judge.

This order responds to reports that personnel of the Federal Bureau of Investigation (FBI) provided false information to the National Security Division (NSD) of the Department of Justice, and withheld material information from NSD which was detrimental to the FBI’s case, in connection

Page 335

with four applications to the Foreign Intelligence Surveillance Court (FISC) for authority to conduct electronic surveillance of a U.S. citizen named Carter W. Page.¹ When FBI personnel mislead NSD in the ways described above, they equally mislead the FISC.

In order to appreciate the seriousness of that misconduct and its implications, it is useful to understand certain procedural and substantive requirements that apply to the government’s conduct of electronic surveillance for foreign intelligence purposes. Title I of the Foreign Intelligence Surveillance Act (FISA), codified as amended at 50 U.S.C. § § 1801-1813, governs such electronic surveillance. It requires the government to apply for and receive an order from the FISC approving a proposed electronic surveillance. When deciding whether to grant such an application, a FISC judge must determine, among other things, whether it provides probable cause to believe that the proposed surveillance target is a "foreign power" or an "agent of a foreign power." See § 1805(a)(2)(A). Those terms are defined by FISA. See § 1801(a)-(b). A finding of probable cause to believe that a U.S. citizen (or other "United States person" as defined at Section 1803(i)) is an agent of a foreign power cannot be solely based on activities protected by the First Amendment. See § 1805(a)(2)(A).

An electronic surveillance application must "be made by a Federal officer in writing upon oath or affirmation." § 1804(a).² When it is the FBI that seeks to conduct the surveillance, the Federal officer who makes the application is an FBI agent, who swears to the facts in the application. The FISC judge makes the required probable cause determination "on the basis of the facts submitted by the applicant. " § 1805(a)(2) (emphasis added); see also § 1804(c) (a FISC judge "may require the applicant to furnish such other information as may be necessary to make the determinations required by" Section 1805) (emphasis added). Those statutory provisions reflect the reality that, in the first instance, it is the applicant agency that possesses information relevant to the probable cause determination, as well as the means to potentially acquire additional information.

Notwithstanding that the FISC assesses probable cause based on information provided by the applicant, "Congress intended the...