Citing a report by Justice Department Inspector General Michael Horowitz, Collyer said that the FBI “provided false information” and “withheld material information … which was detrimental to the FBI’s case” in four FISA applications. In one instance, she said, an FBI attorney “apparently … intended to mislead” the court when the lawyer retroactively altered an email to make it look as if Page was not a source for the CIA.
FBI defenders say that Horowitz found no evidence that political bias motivated those who made the false representations before the court. But Horowitz did not say that there was no political bias. Rather, he testified that “it’s unclear what the motivations were. On the one hand, gross incompetence, negligence? On the other hand, intentionality?” It’s hard to see how an FBI lawyer could unintentionally falsify evidence. Altering an email to remove exculpatory information is not incompetent or negligent, it is intentional — something that Collyer seems to recognize.
Of course, there was bias. Of the 17 errors and omissions Horowitz uncovered, not one favored Trump. Moreover, we now know that former FBI director James B. Comey misled the American people when he said that the Democratic National Committee-funded Steele dossier was merely “part of a broader mosaic” of information presented to the court. Horowitz found that the dossier was “central and essential” to the FISA applications. So, while the FBI deceived the court in secret, its former director deceived the American people in public.
The FBI’s misconduct has done lasting damage to our national security. Because of the nature of its work, the FISA court operates in almost total secrecy, requiring a bond of trust with the government. Since those the FBI is seeking to wiretap do not have lawyers present, Collyer noted, the government has “a heightened duty of candor.”
The FBI failed to uphold that duty — and that failure will reverberate beyond this case. In her order, Collyer wrote: “The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable” (emphasis added). In other words, the FBI’s misconduct in these four FISA applications has made all of its submissions to the court suspect.
We depend on FISA warrants to obtain critical intelligence on terrorist threats to the U.S. homeland. But because the FBI breached its bond of trust with the court, warrants critical to our national security may be delayed. The FISA law says that judges “may require the applicant to furnish such other information as may be necessary to make the determinations” to authorize surveillance. Thanks to the FBI’s misconduct, judges will probably be more aggressive in challenging the information presented by the government in its surveillance applications. When the intelligence community has an urgent request for surveillance of a terrorism suspect, time is of the essence. Any delay could result in the loss of innocent American lives.
The FBI’s misconduct has also undermined Americans’ trust in the FISA process, which means their elected representatives may soon impose greater restrictions on it — making it harder for the intelligence community to protect the United States. In March, several FISA-related provisions of the USA Patriot Act will come up for renewal. Already, those long opposed to the FISA process are signaling that they intend to use the inspector general’s findings as a pretext to gut or even eliminate the court.
The FBI’s abuse of power has done irreparable damage to an institution that is critical to our national security. It is not Trump, but those who have relentlessly pursued him, who are responsible for that damage.