Rosemary Collyer is the presiding judge of the Foreign Intelligence Surveillance Court (the “FISC”). FISC is the judicial body that issues surveillance warrants to our intelligence agencies, principally the FBI, authorizing the interception of electronic communications of people located in the United States who are agents of foreign governments or who have connections to foreign terrorist organizations.
On December 17, Judge Collyer issued a FISC opinion that was highly unusual because it was unclassified and made public. The Horowitz report said that the FBI intentionally misled the court by using incomplete and bogus information as the basis for it to issue FISA warrants against one-time Trump campaign advisor Carter Page.
Collyer’s opinion demonstrates a powerful command of the obvious. It says that the FBI’s duty in preparing applications for search warrants cannot be based solely on actions protected by the First Amendment (such as political campaigning). It goes on to say that the FBI has a heightened duty of candor in making its applications for a warrant, and that its handling of information on the Page warrants was antithetical to that duty.
Collyer’s opinion imposes a duty on the FBI to file by January 10th, under oath, a statement of what it has done and what it plans to do to ensure that future FISC warrant applications accurately and completely disclose all information relevant to those applications.
Collyer’s opinion and order are almost two years late and, as we’ll see below, may be far from adequate to prevent misconduct by the FBI in the future.
Thanks to Rep. Devin Nunes (R-CA) we have known since February 2, 2018, that the FBI defrauded the FISC to spy on President Trump’s 2016 campaign. Nunes, then chairman of the House Permanent Select Committee on Intelligence, and his staff wrote a classified memorandum to the committee members on the FBI’s abuses of power in obtaining FISA warrants on Page during the 2016 campaign.
The Nunes memo, which was declassified by order of President Trump and published on that February 2, 2018, detailed how the FISC was misled by the FBI in obtaining surveillance warrants against Carter Page.
The Nunes memo states that then-deputy FBI director Andrew McCabe told the HPSCI that without the now-infamous “Steele dossier,” no surveillance warrants would have been sought from the FISC.
In seeking those warrants, the FBI never told the FISC that:
The FBI — including the agents whose sworn affidavits the FISC relied on in issuing the warrants and those in the FBI and Justice Department who approved the applications — never included any of that information in the FISA warrant applications despite the obvious fact that the information was highly relevant to the FISC’s decision whether to issue the warrants.
The FBI and senior DoJ officials who signed off on those applications included James Comey, Andrew McCabe, Rod Rosenstein, and Sally Yates. Each of them is guilty of, at least, making false official statements under Title 18 US Code Section 1001.
Judge Collyer and the other judges on the FISC did nothing in response to the revelations in the Nunes memorandum. The court only began to react when the IG report reached it on December 9.
Attorney General William Barr is on record disagreeing with the IG’s conclusion that there was a sufficient evidentiary predicate for the FBI to open the investigation of Trump’s campaign. He has called the investigation “a travesty” because — remember Judge Collyer’s opinion —it was investigating a political campaign, which Barr said was a core First Amendment activity.
The IG found no bias in the FBI’s actions against Page or the Trump campaign. That is absurd when we consider just how far the FBI’s misconduct went and how long it lasted.
We know, from leaks he engineered, that Comey wrote memos of a meeting with Trump and then leaked them to a friend so that the emails could be leaked to the media. Comey’s reported intent was to cause the appointment of a special counsel. Deputy AG Rod Rosenstein then appointed Robert Mueller to investigate the supposed collusion between Trump’s campaign and the Russian government.
One of the FBI lawyers seconded to the Mueller investigation was Kevin Clinesmith. The IG report shows how Clinesmith asked one of the FBI’s liaisons with the CIA to confirm that Page had not been a source for another federal agency at the time he was — according to the FISA warrant application — working as a Russian agent.
Clinesmith asked the CIA liaison to the FBI to confirm that fact. When the CIA person told Clinesmith by email that Page had been a CIA source at the relevant time, Clinesmith altered that email to say that Page had not been a source, and forwarded the email to the FBI agent who relied on it in his sworn affidavit supporting the warrant application.
Clinesmith is reportedly under criminal investigation for his conduct. The FISC has ordered a review of all the FISA warrants in which Clinesmith was involved in preparing applications.
His conduct, along with Comey’s, McCabe’s, Strzok’s, and that of many others, created a situation in which the FISC can no longer trust the FBI.
Collyer’s opinion and order are not likely to solve that problem because the FISC is entirely dependent on the sworn statements of the FBI, NSA, and CIA in determining whether to issue a warrant. The court has no independent means to verify what the intelligence agencies tell it. The most it can do is to require that the agencies answer questions and defend the facts they state in their warrant applications.
But when people such as Clinesmith — and Comey, McCabe, Strzok, Bruce Ohr, and their ilk — are prepared to lie to the court, the court has no recourse. It can either grant the applications and issue the warrants or refuse to do so. In either case, national security can be gravely damaged.
FBI Director Christopher Wray generally defends the FBI’s people strongly. However, he evidently is not interested in cleaning up the Bureau by digging in and firing all of the people who have abused their power. Neither is IG Horowitz.
The good news — which goes to the FBI’s misconduct as well as the CIA’s and, possibly, the NSA’s — is that US Attorney John Durham is going after all the people who abused their powers in the CIA-FBI joint “Crossfire Hurricane” investigation of Trump and his campaign. Many are likely to be indicted, including some of the CIA’s prior leadership.
Let’s remember that Obama’s people — his CIA director, John Brennan, his director of national intelligence, James Clapper, and his FBI director, James Comey, as well as then CIA London station chief Gina Haspel (now Trump’s CIA director) — were all cooperating in the “Crossfire Hurricane” investigation of Trump and his campaign. Let’s also remember that they would not — could not — have been conducting that falsely-based investigation against Trump without Obama’s knowledge and approval.
The best news we’ve seen so far is that former NSA director Adm. Mike Rogers is reportedly cooperating with Durham’s investigators. His cooperation gives a big boost to the investigations of Clapper, Brennan, Comey, and others at the top of the list of miscreants.
Durham’s investigation is the only hope that America will again be able to trust the FBI and the other intelligence agencies. Right now, we can’t.