The 412-page disclosure of four FISA applications and corresponding court orders authorizing surveillance on former Trump advisor Carter Page released Saturday is unprecedented. Never before has a FISA warrant been made public.
The documents reveal that the government presented extensive evidence to the court to justify the FISA warrant on Carter Page beyond the opposition research dossier compiled by former British spy Christopher Steele. However, much of it lay behind extensive redactions.
The warrants claim that Page has “established relationships with Russian government officials, including Russian intelligence officers” and that he “has been collaborating and conspiring with the Russian government.”
Page denies conspiring with the Russian government. Appearing on CNN’s State of the Union Sunday, Page said, “I’ve never been an agent of a foreign power in any — by any stretch of the imagination.”
While the redactions obscure much of the information that led investigators to believe that Page might be in cahoots with Moscow, the amount of material suggests that there was a great deal more to support the FBI’s assertion than we currently know.
Why the FBI Sought a FISA Warrant
First, it’s important to understand what this warrant was about in the first place. The FBI sought a warrant in the FISA court as part of a counterintelligence investigation into Russia’s efforts to interfere in the 2016 election. Its purpose was first and foremost to understand what Russian intelligence agencies were up to in terms of meddling in the U.S. election.
By law, the surveillance of Carter Page could not have been authorized unless the FBI demonstrated to the court that it was likely to serve this goal. Further, surveillance on Carter Page could not have been reauthorized three times unless the government was able to show that it was yielding useful information that revealed the activities of Russian intelligence operatives. Unless we assume that all four FISA court judges who approved the authorization of these warrants were ignoring the law, the FBI’s surveillance on Carter Page was likely justified.
The documents confirm that the FISA warrants were approved by Judges Rosemary Collyer, Michael Mosman, Anne C. Conway and Raymond J. Dearie. While I don’t agree with the premise that who appointed the judges should matter, since some people believe it does, it bears noting all four were appointed by Republicans.
Beneath the Redactions
The release of the FISA warrant applications won’t settle the raging debates about whether the FBI acted appropriately in seeking it. The documents are heavily redacted, obscuring the full scope of the evidence on which the court based its approval of the warrants.
This leaves room for speculation about what lies beneath the blacked-out sections. Proponents of theories that the FBI obtained the warrant in bad faith can imagine that the blacked out sections hide evidence of malfeasance or over-reliance on unverified sources of information such as the Steele dossier. While those, like me, who assume the FBI acted appropriately can surmise that the redactions include independently verified evidence that provided further justification for the surveillance.
What we are able to see is primarily information that is already available publicly in other forms. This mostly includes the parts that refer to the Steele dossier and information from press reports. Critics of the FBI’s handling of the matter, such as the National Review’s Andrew C. McCarthy, a former Federal Prosecutor, argue that the large proportion of the visible information confirms their belief that the court relied primarily on the Dossier when it decided to approve the FISA warrant. “When you read this thing…it’s as if they took the Dossier, slapped a District Court caption on it and handed it to the judge,” McCarthy said on Fox and Friends on Sunday morning.
Yet, the warrant only references two pieces of information from the Dossier: the claim that during a trip to Moscow in July 2016 Page met with Igor Sechin, the Chairman of Russian Energy giant Gazprom and a close Putin ally, and Igor Divyekin, a former Russian intelligence officer who is currently deputy chief of internal policy. Page denies that he met with either of these officials, but has acknowledged that he did meet with other Russian officials during the trip.
From even a cursory scan of the documents, it is apparent that there was far more evidence beyond the Dossier that was provided to the court. For example, the section discussing the Dossier’s claim that Carter Page met with Divyekin is followed by two pages of redacted classified material. This likely included information from US intelligence sources that may have independently confirmed Page’s contacts with Divyekin or other Russian officials.
The initial warrant also included extensive discussion of Page’s denial of contacts with Russian officials followed by five and a half pages of redacted material that likely further explains what the FBI knows about Page’s contacts with Russians.
We don’t know what information was included in the redacted pages, but we can infer that the FISA warrant yielded more relevant information over time. FISA warrant reauthorizations require that the government demonstrate that the information they were finding through the authorized surveillance supports that there continues to be probable cause that the target is an agent of a foreign power. Because the redacted sections discussing Page’s contacts with the Russian officials grew in each succeeding FISA warrant application, it seems reasonable to conclude that the government’s surveillance of Page was yielding further evidence that he was in touch with Russians.
The first FISA warrant application on Oct 20, 2016, totaled 66 pages; the application to reauthorize the warrant in Jan. 2017 grew to 79 pages; the next application for reauthorization in Apr 2017 was 91 pages; and, the final reauthorization in Jun 2017 was 101 pages.
We can also infer some things from the exemptions cited to justify the redaction. Of particular interest are:
- Exemption 1 – protects classified information.
- Exemption 7(D) – protects the identity/identities of confidential sources.
The large amount of information redacted under exemptions 1 and 7(D) suggests that significant additional evidence too sensitive to reveal publicly informed the court’s decision to approve the FISA warrant. This may include things like signals intelligence intercepts of foreign spies, or human intelligence sources and other confidential informants.
Was Page Really a Russian Spy?
We still don’t know if Page really was, in the end, an agent of a foreign power. He has yet to be charged with a crime. But, the primary purpose of a FISA warrant is to unravel the intelligence activities of a foreign power rather than to gather evidence to prosecute a crime, so whether or not Page is charged is not strictly relevant.
It is also possible that Page’s contacts with Russians turned out to be innocent. He may have simply been an unwitting pawn of Russian intelligence. But, even if this were the case, the surveillance would still be lawful and appropriate if the government had probable cause to believe that Page was involved with Russia’s schemes. The preponderance of evidence suggests that this was indeed the case.
The FISA warrant applications stated that ”[t]he F.B.I. believes Page has been the subject of targeted recruitment by the Russian government.” That’s not unreasonable. Page had previously been a target of recruitment by Russian spies. In 2013, wiretaps revealed Russian intelligence officers discussing their efforts to cultivate Page. Notwithstanding what the FBI may have known from intelligence sources, given Page’s continuing contacts with Russian officials and role on the Trump campaign, it seems reasonable to believe that Russian intelligence would have made another run at him.
It is also possible that the government has not levied charges against Page because they plan to do so at a later stage of the investigation, perhaps because divulging the evidence gathered against him might interfere with aspects of the case that they are still investigating. We simply do not know.
The Nunes Memo
One thing that does seem clear, however, is that the memo released earlier this year by House Intelligence Committee Chairmen Devin Nunes omitted key pieces of information that contradict the accusations it leveled against the FBI. When placed in context, many of these accusations appear to be highly misleading.
Among the key claims of the Nunes memo is that the FISA application included information from the dossier compiled by former British intelligence officer Christopher Steele while failing to disclose the political motivations behind it.
Yet, the application states that Steele, referred to as Source #1, was not told who was ultimately paying for the memo. Nevertheless, the memo notes that “the FBI speculates that” Steele was likely hired to find “information that could be used to discredit Candidate #1’s (Trump’s) campaign.”
Defenders of the Nunes memo argue that this was too vague. But vague or not, it’s hard to see how suggesting the FBI hid partisan motivations behind the dossier without acknowledging that they had indeed done so as anything other than dishonest.
The Nunes memos correctly pointed out that the warrant never specifically mentions by name the parties involved in finding Steele’s research, specifically the Clinton campaign and the DNC. But, this too is a canard. First, according to the warrants, Steele didn’t have this information so presumably, the FBI did not either. Second, in order to protect privacy, FISA warrant applications generally do not mention the names of US persons other than those that are the targets of the proposed surveillance. For example, Trump is referred to as Candidate #1.
In the end, the FISA warrant application won’t end the debate about whether the FBI acted properly in obtaining a FISA warrant application on Carter Page. But, it doesn’t provide any reason to believe that the surveillance on Page was intended to spy on the Trump campaign as the President and his supporters have long suggested. Page had parted ways with the Trump campaign by the time it was approved, and the Trump campaign strenuously denied that Page had anything to do with the campaign at that point. Nor does it provide any support for Trump’s tweet more than a year ago claiming that Obama tapped his phones during the campaign.
The FISA applications overwhelmingly support the conclusion that the FBI’s decision to seek a surveillance on Page was reasonable and appropriate. Still, partisans will continue to see whatever they choose to see in the documents. It is a feature of our current political moment that this would probably be true no matter what the documents said.