13 Things To Look For In The Inspector General FISA Abuse Report By Margot Cleveland for The Federalist
Today, Department of Justice Inspector General Michael Horowitz will reportedly issue his findings on the U.S. Department of Justice and FBI’s compliance (or lack thereof) with the legal requirements and internal policies and procedures related to the Carter Page Foreign Intelligence Surveillance Act (FISA) applications. Horowitz’s report follows a 20-month investigation into possible FISA abuse, as well as an inquiry into the DOJ and FBI’s relationship and communications with dossier author Christopher Steele, triggered by requests from then-Attorney General Jeff Sessions and members of Congress.
Horowitz’s investigation was limited in scope and thus will leave unanswered many of the questions surrounding the FBI’s targeting of the Trump campaign in the spring and summer of 2016—concerns hopefully addressed soon by Attorney General William Barr and the federal prosecutor he assigned to investigate those matters, Connecticut U.S. Attorney John Durham. But, given the breadth of the already released details indicating substantial abuse of the FISA process, the IG’s report should address a plethora of problems, some identified by then-House Intelligence Committee chairman, Devin Nunes, and many more discovered as additional facts became known while the Russia collusion hoax unraveled over the last two years.
1. Concerns about Federal Surveillance of Carter Page
Before looking at a list of concerns Horowitz’s forthcoming report should address, here are the basics concerning the Page FISA warrants. According to the response memo Rep. Adam Schiff (D-CA) released to counter Nunes’ memo, the “DOJ first applied to the [FISA court] on October 21, 2016 for a warrant to permit the FBI to initiate electronic surveillance and physical search of Page for 90 days, . . .The Court approved three renewals—in early January 2017, early April 2017, and late June 2017—which authorized the FBI to maintain surveillance on Page until late September 2017.”
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We also know from “Nunes’ HPSCI memo that former FBI director James Comey certified three of the FISA applications and former deputy director Andrew McCabe certified the fourth, while former deputy attorney general Sally Yates approved the initial October 21, 2016, application and the January 2017 renewal, and then-Acting Deputy Attorney General Dana Boente and Deputy Attorney General Rod Rosenstein signed the June 2017 and September 2017 renewals.”
Horowitz should have addressed the initial question of whether, before the DOJ sought and obtained the first FISA surveillance order in October 2016 for Page, federal prosecutors filed an earlier FISA application the FISA court denied. If so, the question quickly turns to: What changed?
Then, the foremost question the IG’s report should address concerns the DOJ’s basis for believing that probable cause supported the Page FISA applications. Because Page is a U.S. citizen, to obtain a surveillance order under FISA, “the DOJ needed to establish probable cause that Page was ‘an agent of a foreign power’ and was engaged in ‘activities [that] involve or may involve a violation of the criminal statutes of the United States.’” And “probable cause needed to exist for the initial October 21, 2016 warrant and for each subsequent renewal.”
