After Durham, It’s Time To Let Congress And The President Oversee The FISA Court And All FISA Warrants. Never Again.

Special Counsel John Durham has finished his voluminous report outlining the Justice Department, State Department, intelligence agencies and FBI’s “confirmation bias” that led to a years-long investigation of former President Donald Trump’s 2016 presidential campaign, transition and then administration falsely alleging that Trump and his campaign were Russian agents who had helped Moscow hack the Democratic National Committee (DNC) and put their emails onto Wikileaks despite the fact that the FBI could not “corroborate a single substantive allegation in the [Christopher] Steele dossier reporting,” which was sourced to the Hillary Clinton campaign and the DNC.

Particularly troubling was the fact that U.S. intelligence had obtained a Russian intelligence analysis that directly laid out a Clinton campaign plan to tie Trump to Russia that was shielded from investigators. It was potentially exculpatory, but it was not on the FBI’s radar. Because they weren’t allowed to see it.

According to Durham, the intelligence was obtained in July 2016: “In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee.”

Durham added, “The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.” It turns out the reason for that is because nobody investigated it.

Will this presidential election be the most important in American history?

Per Durham, “The Office showed portions of the Clinton Plan intelligence to a number of individuals who were actively involved in the Crossfire Hurricane investigation. Most advised they had never seen the intelligence before, and some expressed surprise and dismay upon learning of it. For example, the original Supervisory Special Agent on the Crossfire Hurricane investigation, Supervisory Special Agent-1, reviewed the intelligence during one of his interviews with the Office. After reading it, Supervisory Special Agent-I became visibly upset and emotional, left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised of the Clinton Plan intelligence and had never seen the aforementioned Referral Memo.”

Durham added, “Supervisory Special Agent-1 expressed a sense of betrayal that no one had informed him of the intelligence. When the Office cautioned Supervisory Special Agent-1 that we had not verified or corroborated the accuracy of the intelligence and its assertions regarding the Clinton campaign, Supervisory Special Agent-I responded firmly that regardless of whether its contents were true, he should have been informed of it.”

Of those who did see the intelligence, they didn’t care. Per Durham, “The Office located no evidence that in conducting the Crossfire Hurricane investigation the FBI considered whether and how the Clinton Plan intelligence might impact the investigation. No FBI personnel who were interviewed by the Office recalled Crossfire Hurricane personnel taking any action to vet the Clinton Plan intelligence. For example, [FBI supervisory intelligence analyst] Brian Auten stated that he could not recall anything that the FBI did to analyze, or otherwise consider the Clinton Plan intelligence, stating that it was ‘just one data point.’”

This is a bombshell. The Justice Department and the FBI had intelligence that suggested that the Clinton campaign not only directly responsible for the Trump-Russia allegations, a fact which was later verified, but that they had been responsible for concocting it. The Clinton campaign and the DNC via law firm Perkins Coie had hired Fusion GPS, who in turn hired former British spy Christopher Steele to produce the allegations that there was a “well-developed conspiracy” by Russia and the Trump campaign to hack the DNC and give their emails to Wikileaks.

It was even known at the time, because parts of the sourcing were included in the original Carter Page Foreign Intelligence Surveillance Act (FISA) warrant of Oct. 2016, which told the FISA Court that it started as opposition research by “a U.S.-based law firm” and was “likely looking for information that could be used to discredit Candidate #1’s campaign.” So, FISA Court knew that it was potentially a political hit job and rubber stamped the FISA warrant anyway.

The section stated in full: “Source #1, who now owns a foreign business/financial intelligence firm, was approached by an identified U.S. person, who indicated to Source #1 that a U.S.-based law firm had hired the identified U.S. person to conduct research regarding Candidate #1’s ties to Russia (the identified U.S. person and Source #1 have a long-standing business relationship). The identified U.S. person hired Source #1 to conduct this research into Candidate #1’s ties to Russia. The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #1’s campaign.”

By the time Justice Department Inspector General Michael Horowitz looked into the matter, with his Dec. 2019 report, and interviewed Christopher Steele, it was clear that there was a lot of substance to the Russian intelligence analysis: “We asked Steele when he learned who had retained Fusion GPS to obtain information concerning Trump and the Trump campaign. He told us he could not recall when he first learned that it was the law firm Perkins Coie and the Democratic National Committee (DNC), though he was certain that it was not at the outset of the engagement with Fusion GPS. Steele further stated that, by late July 2016, Steele had met with Simpson and an attorney from Perkins Coie, which represented the DNC, and Steele said that by that time he was aware of the DNC’s role. He stated that he could not remember whether he provided Perkins Coie’s name to the FBI but believed it was probable that he did so, but not in July 2016.”

In other words, all the Justice Department and the FBI had to do was ask Steele about the providence of his employer. By July 2016, months before the FISA warrant was approved against the Trump campaign, Steele had already learned that he had been hired by the DNC and the Clinton campaign, and by this time the U.S. intelligence community had already obtained separate corroboration from a Russian intelligence analysis of this fact. All they needed to do was connect the dots and there might have never been a FISA warrant.

But unbelievably the Clinton campaign’s role in producing the Steele dossier was never investigated. Per Durham, “The FBI leadership essentially disregarded the Clinton Plan intelligence, which it received at almost the exact same time as the Australian Paragraph Five information. This was despite the fact that at precisely the same time as the Clinton Plan intelligence was received (i) the Clinton campaign made public statements tying the DNC computer hack to Russian attempts to help Trump get elected, (ii) the FBI was receiving the Clinton campaign-funded Steele Reports, and (iii) the Clinton campaign-funded Alfa Bank allegations were being prepared for delivery to the media and the FBI.”

Durham generously attributes these and other failures of the Crossfire Hurricane investigation to “confirmation bias”, writing, “people tend to give more credence to information that supports what they already believe. The effects of confirmation bias can be amplified in groups operating in situations of high stress and under time pressures.”

I would add that political bias would be a form of confirmation bias, for example, a belief that my political opponent is a foreign agent of an enemy country because somebody with authority but without evidence suggested it might be true.

They’re fantasies, yes, but compelling fantasies that even the most well-trained investigators in the world are susceptible to if not confronted with contrary facts. In this case, investigators were shielded from contrary information, and instead allowed to indulge in those fantasies. After all, they didn’t like their opponent’s proposed policies related to the enemy country, and so they chose to believe it.

In fact, Trump’s policy proposals related to Russia were laced all throughout the original Page FISA warrant as part of the justification for the surveillance, with allegations that Russia was attempting to convince the Trump campaign to not send weapons to Ukraine and to instead recognize Russia’s annexation of Crimea in Ukraine, telling the FISA Court that the Trump campaign, per the FISA application, “worked behind the scenes to make sure [the Republican] platform would not call for giving weapons to Ukraine to fight Russian and rebel forces” stating Trump “might recognize Crimea as Russian territory and lift punitive U.S. sanctions against Russia,” citing news reports.

The Justice Department also included an Aug. 2016 Politico story highlighting Trump’s positions on Ukraine, including his suggestion the people of Crimea preferred to live in Russia, and his doubts that the territories Russia had seized could be reclaimed suggested without World War III, which Trump was running against on the campaign trail as much as Hillary Clinton.

At a Harrisburg, Pennsylvania, Politico quoted Trump saying a military conflict to take back Crimea would risk nuclear war: “You wanna go back? …You want to have World War III to get it back?” And it quoted Trump on ABC’s “This Week” suggesting the people of Crimea supported Russian annexation: “The people of Crimea, from what I’ve heard, would rather be with Russia than where they were.” This was Trump’s anti-war position in 2016 that helped him secure narrow wins in Pennsylvania, Michigan and Wisconsin and an Electoral College majority against Hillary Clinton, who he often called a war-monger.

These were policy differences between Trump and his opponent, Clinton, that inevitably were transformed into a plot by a foreign adversary to create a Manchurian candidate of sorts. Eventually, the allegations would unravel, thanks in large part to former Special Counsel Robert Mueller’s own work, who found there was no Trump campaign conspiracy with Russia to hack the DNC and give the emails to Wikileaks. According to Mueller’s final report to the Attorney General, “the evidence was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.”

The report added, “In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government — or at its direction, control or request — during the relevant time period.”

Manafort was brought up on unrelated tax and bank fraud charges. Former Trump lawyer Michael Cohen has his own set of problems, but being a Russian agent is not one of them. Per the Mueller report, “Cohen had never traveled to Prague…” even though Steele had Cohen supposedly in Czech Republic in the summer of 2016 meeting with Russian agents. And so, he very well could not have been there meeting with Russian intelligence officials about a plot to put the DNC emails onto Wikileaks.

In fact, the problems to do with the Steele reporting on Cohen were known as early as Jan. 2017 when Buzzfeed published the dossier and Cohen showed his passport saying he had never been to the Czech Republic. As for Page, he was never charged with anything.

A footnote in the Mueller report nonetheless attempted to justify the issuance of the FISA warrants against Page, citing the lower standards of evidence used in obtaining FISA warrants, stating per Mueller, “On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801(b), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) (explaining that probable cause requires only ‘a fair probability,’ and not ‘certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence’).”

Besides the lower standards of evidence used at the FISA court level, even when evidence to the contrary was presented throughout the course of the investigation, it was ignored: “Throughout the duration of Crossfire Hurricane, facts and circumstances that were inconsistent with the premise that Trump and/or persons associated with the Trump campaign were involved in a collusive or conspiratorial relationship with the Russian government were ignored or simply assessed away. Indeed, as set forth in Sections IV A.2 and 3, from even before the opening of Crossfire Hurricane, some of those most directly involved in the subsequent investigation had (i) expressed their open disdain for Trump, (ii) asked about when they would open an investigation on Trump, and (iii) asserted that they would prevent Trump from becoming President. As discussed throughout this report, our investigation revealed that the stated basis for opening a full investigation ‘to determine whether individual(s) associated with the Trump campaign [were] witting of and/or coordinating activities with the Government of Russia’ was seriously flawed. Again, the FBI’s failure to critically analyze information that ran counter to the narrative of a Trump/Russia collusive relationship exhibited throughout Crossfire Hurricane is extremely troublesome.”

Durham added, “The FBI was willing to make use of the completely unvetted and uncorroborated Steele reporting in multiple FISA applications targeting a U.S. citizen, even after the Crossfire Hurricane investigators had determined that there were major conflicts between the reporting of Steele and his primary sub-source, Igor Danchenko – conflicts the FBI incredibly failed to resolve.”

Just consider these facts: The Justice Department had approved electronic surveillance of the Trump campaign in Oct. 2016 based on information that turns out came from Trump’s opponent in the campaign, the Hillary Clinton campaign, the DNC and the law firm Perkins Coie. But in July 2016 it was already known to the U.S. intelligence community, albeit from a Russian intelligence analysis, that it was potentially a plan by the Clinton campaign to discredit Trump. And it was never shared down the food chain with investigators, who never bothered to look into the Clinton campaign’s sourcing of the now discredited Steele dossier. Because they didn’t want to. It was a just a “data point” that didn’t fit the narrative.

As Durham explained, “it seems highly likely that, at a minimum, confirmation bias played a significant role in the FBI’s acceptance of extraordinarily serious allegations derived from uncorroborated information that had not been subjected to the typical exacting analysis employed by the FBI and other members of the Intelligence Community. In short, it is the Office’s assessment that the FBI discounted or willfully ignored material information that did not support the narrative of a collusive relationship between Trump and Russia. Similarly, the FBI Inspection Division Report says that the investigators ‘repeatedly ignore[ d] or explain[ ed] away evidence contrary to the theory the Trump campaign … had conspired with Russia …. It appeared that … there was a pattern of assuming nefarious intent.’ An objective and honest assessment of these strands of information should have caused the FBI to question not only the predication for Crossfire Hurricane, but also to reflect on whether the FBI was being manipulated for political or other purposes. Unfortunately, it did not.”

So, what to do about all of this? Durham towards the end of his report adopts a reform proposal by former NSA General Counsel Stewart Baker to have non-partisan Justice Department official who is tasked to act in an adversarial manner at the FISA Court and after FISA surveillance has been initiated to essentially poke holes in the Justice Department’s case against an individual: “Stewart Baker proposes having a ‘career position for a nonpartisan FBI agent or lawyer to challenge the FISA application and every other stage of the investigation.’ This would be done in investigations that ‘pose partisan risk.’” Durham wrote, “we recommend that the Department seriously consider Baker’s proposal for an official to challenge both a politically sensitive FISA application and other stages of the investigation.”

But is that enough? After this fiasco, why should Congress and the President, the elected representatives of the American people, allow the Justice Department and the FBI to simply police itself without more oversight? This thing was rubberstamped every step of the way, as Durham notes, because of “confirmation bias”. And a single official expressing doubts is supposed to stop a political witch hunt? You know what happens when you say there are no witches in the middle of a witch hunt? You’re the next witch being burnt at the stake.

Now, as Congress considers reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, which are not the provisions that were used to spy on the Trump campaign—it should go further. Much further.

Unfortunately, as Durham noted, spying political campaigns could be something of a regular order of business: “There are of course numerous investigations over the years that involve presidential and congressional candidates or campaigns, including allegations of foreign contributions, improper foreign influence, or other activities.”

Then let the President, the White House Counsel, the National Security Council and the House and Senate Intelligence and Judiciary Committees see every single one of them. The most stunning part of the Durham report has how little former President Barack Obama was involved, other than being briefed on the Clinton Plan Intelligence and wanting the correct people to be assigned to the overall investigation, and suggesting that the Trump campaign be given defensive briefings (which were never given), there was no oversight by the elected branches of this entire investigation, even though they were spying on the opposition party in an election year.

Every single unredacted FISA Court application and approval should be sent to the President, the White House Counsel and the National Security Council, as well as the bipartisan House and Senate Intelligence and Judiciary Committees. Every. Single. One.

And then, if any political campaigns are being spied on, or attempted to be spied on, by the incumbent party, and if it’s poorly predicated, the opposition party will go to the press and say, “The President and the Justice Department are spying on my party!” That’s what former House Intelligence Committee Chairman Devin Nunes (R-Calif.) did as soon as he learned about the Russiagate fiasco. Or if other non-political individuals are being wrongly targeted for surveillance, this too will give the elected branches an opportunity to huddle and intervene to put it to a stop.

Sunlight is the best disinfectant. If the Justice Department wants to spy on a political party, and it knows that the party will be alerted, maybe they’ll think twice about doing it.

Right now, the FISA court operates in a compartmentalized bubble. That needs to end. If FISA is never going to be ended, then give Congress via the appropriate committees and the President every single FISA warrant, and then the political spying might end. Durham has already laid out all of the information Congress needs to attempt to prevent this from ever happening again. All they need to do is act.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

Cross-posted with The Daily Torch


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