The F.B.I.s investigation of the former Trump campaign adviser Carter Page, we can now say with assurance, was a train wreck. In his report, Justice Department Inspector General Michael Horowitz cataloged a damning list of egregious errors, omissions or misrepresentations in filings to the secretive Foreign Intelligence Surveillance Court, which approved nearly a years worth of wiretaps on Mr. Page.
Many Republicans have taken this as proof that the investigation was hopelessly contaminated by anti-Trump political bias. That would be the optimistic scenario. Unfortunately, its probably much worse than that.
If the F.B.I. botched its applications for Foreign Intelligence Surveillance Act warrants against Mr. Page because of political bias, after all, problems of the sort Mr. Horowitz identified are most likely unique to this case. The bureau obtains about 1,500 FISA warrants each year, and an overwhelming majority have no connection to domestic politics. The solution is also similarly simple: Toss out the bad apples who acted on political motives and add a few layers of safeguards for the tiny fraction of cases that are designated sensitive investigative matters because they do intersect with politics.
That might be a reasonable response if we were confident the Page investigation represented an outlier or aberration. The chilling reality, however, is that we have no idea whether thats the case.
At a Senate Judiciary Committee hearing last week, Senator Marsha Blackburn, Republican of Tennessee, zeroed in on this point. When she asked Mr. Horowitz whether finding mistakes in a FISA application was a fairly unusual occurrence, he responded, I would hope so.
Americans deserve a stronger assurance than hope that their Fourth Amendment rights are being respected. The sheer quantity of serious defects in the FISA applications targeting Mr. Page which officials consistently told Mr. Horowitz received far more review than normal, because agents understood the applications would doubtless attract controversy and scrutiny raises an obvious and disturbing question: If theyre this sloppy with a target involved in a presidential campaign, how bad is it in ordinary cases, which the public will never learn about and which are unlikely to ever be the topic of congressional hearings?
We neednt worry so much about that, of course, if the defects of the Page warrants were products of political animus against the Trump campaign. But the report provides very little reason to think thats the case. The case for supposing bias is the culprit here leans heavily on the former F.B.I. agent Peter Strzok, now notorious for a voluminous history of text messages denigrating Mr. Trump and suggesting that he would not become president because we will stop it. But while Mr. Strzok played a supervisory role in the earliest stage of the Page investigation, its hard to tie him to the specific problems Mr. Horowitz identifies. As the report notes, Mr. Strzok was not the primary or sole decision maker on any investigative step and at one point opposed FISA monitoring of another Trump campaign staff member that case agents proposed. Moreover, the problems Mr. Horowitz documented in the initial FISA application filed under Mr. Strzoks watch were significantly less serious than the outrageous omissions and misrepresentations to the court that occurred in the subsequent applications to renew the wiretap, after Mr. Strzoks role in the investigation had ended.
With one significant exception an F.B.I. lawyer responsible for improperly altering an email related to the final renewal application Mr. Horowitz didnt find signs of Mr. Strzoks intense animus among others who worked on the FISA warrants. The report notes that among the huge quantity of internal communications reviewed, the inspector general identified a small number of text messages and instant messages in which members of the investigation team discussed political issues and candidates, but that these did not raise significant questions of potential bias or improper motivation.
If theres an explanation for the errors Mr. Horowitz documents suggested by his reports, its not political bias. Its confirmation bias.
The F.B.I.s interest in Mr. Page and its suspicions that he might be a Russian intelligence asset predated his involvement in presidential politics. He had reportedly been the target of a FISA warrant in 2014 and was the focus of yet another counterintelligence investigation opened in April 2016 by the F.B.I.s notoriously Trump-friendly New York field office, months before the bureau started an inquiry into potential links between the Trump campaign and Russias election interference operation. When investigators got wind of Christopher Steeles notorious dossier, which made Mr. Page a pivotal figure in a well-developed conspiracy of cooperation between Mr. Trump and the Kremlin, it would have seemed like confirmation of what they already suspected.
Having adopted this theory, investigators began to exhibit classic signs of confirmation bias, readily absorbing new information that fit the model theyd built, while overlooking or explaining away facts that didnt fit. The worst misrepresentations to the court that Mr. Horowitz uncovered are sins of omission new information the bureau obtained as the investigation progressed that should have led it to question previous representations it had made to the court.
The many layers of review FISA applications go through laid out in a set of rules known as the Woods Procedures were ill equipped to detect this sort of problem, because the Woods Procedures focus on confirming that facts in the application match documents in the F.B.I.s case file. But you cant fact check a claim that doesnt exist which means the process is bad at detecting important information that has been left out. Officials who reviewed later applications also told Mr. Horowitz that they typically focused on the new information in each submission. That means assertions theyd made early on ended up effectively being taken for granted: Nobody was revisiting early assumptions to see whether they still held up in the face of new data.
If this explains why the Page investigation went increasingly off the rails, its an explanation that has little to do with partisan politics at its heart. But that would mean theres little reason to think the Page investigation is special in this respect. Theres an urgent need, then, for the inspector general to do more such deep dives and figure out just how pervasive the problem really is.
Fortunately, the inspector general is already taking a first step in this direction, having begun a review that will examine the F.B.I.s compliance with the Woods Procedures in FISA applications that target U.S. persons. But in itself, thats not enough: While Mr. Horowitz found violations of the Woods Procedures in the Page case, they werent the most serious distortions. Those occurred precisely because the Woods Procedures arent well calibrated to catch material facts that get left out. To do that, youd need to do the kind of intensive and comprehensive case-by-case review conducted in the Horowitz review, not just run Woods vetting a second time to see whether the results tally.
Doing this sort of deep dive for a representative sample of FISA applications will, of course, be both expensive and extremely time consuming. But its well worth it to find out just how badly our surveillance state is broken.
Link:
The Chilling Reality of Bias at the F.B.I. - The New York Times