Justifying Surveillance of Carter Page Would Have Been Pretty Easy

The FBI needed probable cause to believe he was an agent of a foreign power, a standard that is not hard to meet.


MSNBC via Wikimedia Commons

The controversy over FBI surveillance of Carter Page, who advised Donald Trump on foreign policy during his presidential campaign, tends to obscure how easy it is to get permission for a wiretap of a suspected foreign agent. Trump and his allies say the FBI's warrant application relied on information from former British intelligence agent Christopher Steele without making it clear to the Foreign Intelligence Surveillance Court (FISC) that his research had been funded by Hillary Clinton's campaign and the Democratic National Committee. But given the modest legal requirements for wiretapping in foreign intelligence cases, it seems likely that the FBI could have obtained a warrant without using Steele at all.

To monitor the communications of a "U.S. person" (a citizen, legal permanent resident, or U.S. corporation) under the Foreign Intelligence Surveillance Act (FISA), the FBI needs probable cause to believe the target is an agent of a foreign power. In Page's case, the relevant definition of a foreign agent would be someone who "knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power," or who knowingly assists such activities, when they "involve or may involve" violating a criminal statute. When a U.S. person is the target, a warrant cannot be issued "solely upon the basis of activities protected by the first amendment."

Unlike when it seeks a warrant in an ordinary criminal case, the FBI did not need to show probable cause to believe that Page had broken the law, only that he was an agent of a foreign power, which might (or might not) involve illegal espionage. The New York Times says the FBI had to show Page was "probably an agent of a foreign power." But if probably means "more likely than not" (i.e., supported by "a preponderance of the evidence"), that is incorrect. Probable cause, which the Supreme Court has described as "a fair probability," is supposed to be stronger than a hunch or a reasonable suspicion, but it is weaker than a preponderance of the evidence, the standard that applies to verdicts in civil cases. To put it another way, the FBI could get a warrant for an American who was probably not a foreign agent.

How hard is it to show the sort of probable cause the FBI needs under FISA? Not very, judging by the bureau's track record before FISC judges, who almost never reject its warrant applications. The FBI's defenders argue that its success rate reflects careful preparation, which requires approval by senior Justice Department officials and often includes consulting with the court before filing. But in the end, Syracuse University law professor William Banks says, the government's burden is not very demanding. "Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities in the United States," Banks told the Times. "Game over. The standards are incredibly open-ended."

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  1. Either you legally got a warrant or you didn’t. If you didn’t legally get a warrant, it is irrelevant that you could have legally gotten one. If they deceived the court to get this warrant then they didn’t legally have a warrant. Game over.

    1. Nice analysis, right up to the final sentence. No. game not over. No one’s the FBI accountable. We’re not playing their game, we don’t even know what game they’re playing, and they’re making up whatever rules they want anyway.

    2. Not true. There’s a long line of cases that say that, even if a warrant application has omissions or factual errors, its still valid if the errors/omissions weren’t material, i.e. the judge would have issued the warrant anyway.

      1. I said “deceived” not “errors/omissions”.

        1. My point stands. Even if they deceived the judge, the warrant is still valid if the judge would have issued it anyway without the deceptive information.

          1. There are also warrants deemed void because an officer lied on the warrant affidavit.

          2. If the FBI sought a warrant to find papers proving ownership of a Ford F-150, but their suspect actually owns a Ford F-250, maybe that’s an error that’s immaterial.

            Including unverified oppo-research in order to obtain a FISA warrant on the member of another campaign, I would think, doesn’t immediately pass the smell test. Of course, if the court doesn’t know that, then it’s just business as usual.

    3. The other fundamental question has to do with the legality of funding:

      HRC’s campaign $ is regulated by the Federal Election Commission (FEC)…can it pay for Steele (UK Citizen) to get dirt on Trump? Can it pay for Steele’s Russian sources? Did the HRC campaign report this to the FEC?

      On the flipside, can the FBI ensure that their taxpayer funds to Steele were not used by the HRC campaign? Did they fund Steele’s work to spread information with the media? Can they elaborate on his firings? If he was fired, does it add doubt to the veracity of his information? What exactly to Bruce Ohr receive from Steele after he was fired?

  2. “Probable cause” is not the same as “preponderance of the evidence”. They are different standards, used in different circumstances.

    Probable cause means having some level of facts and evidence that tends to suggest the target may have done whatever he (or she) is accused of having done.

    Preponderance of the evidence means more likely than not.

  3. I am kinda worried myself. I speak Russian, have traveled all over that country, have many Russian friends, and email or text old acquaintances a lot. Suppose I said to one of them, “You know, Yuri, that about half of us Americans have gone bat-guano crazy with a disease called TDS. You ever heard of it?”

    That sounds like potentially useful intelligence on the USA, even to me!

    Maybe I am safe now from being unmasked? At least Nikki Haley is no Samantha Powers when it comes to unleashing the full communications-intercepting capability of the American intelligence services on American services.

  4. “How I learned to stop worrying and fall in love with trumped-up charges and the Surveillance State”, by the Welchie Boys.

    Basically it’s a volume of just three little words: Donald J. Trump.

  5. This article is extremely annoying. I suppose that had the FBI gotten its “easy” warrant Reason would now be complaining about how easy it is for government police agencies to get such a warrant.

    Also, the discussion of “probable cause” in an investigation is garbled. Forget about how it does or does not compare to any standard of evidence in a civil case. Nor does it have to do with any trial standard. It applies during an investigation, before jeopardy has even attached. The standard is whether there is a basis in fact for a reasonable belief that a crime has occurred (search warrants don’t issue in civil cases) and that evidence concerning the crime may be found at a particular location. The warrant must also specify the evidence being sought there. So the pretrial conduct of an issuing magistrate may be at issue, for example, in a Motion to Suppress Evidence, but it is irrelevant at trial.

    1. See my reply below. Under FISA, national security not law enforcement, there was a 99% application success rate. Even if we assume the Dossier was 100% true, it is hard to justify a FISA warrant on a US Citizen who is alleged to have done something criminally wrong, but not an agent of a foreign power.

  6. Five Questions the Nunes Memo Better Answer

  7. Let me sum up Jacob Sullum’s argument: it is easy for the FBI to get authorization to surveil Americans; therefore, it is right and constitutionally proper. It was easy for J. Edgar Hoover to engage in all kinds or unethical and unconstitionally behavior (e.g. threatening to “investigate” Congressmen as a means of intimidation and manipulation). This is why libertarians like Ron Paul support the elimination of the FBI as an unconstitutional and unelected politically motivated organization.

    1. Easy equals legal! Coup d’Etat Comey at his finest!

  8. Of course…Carter Page, a distinguished graduate of the United States Naval Academy and former Naval Officer, is an agent of a “foreign power.” When I read the dossier, it alleges that Page was offered $ by Russian Energy, not intelligence interests, in exchange for political favors. How is this applicable under FISA for Page? Why not an Article III Law Enforement “wiretap?” I know why, pergaps by the October 26, 2016 FISA ruling that the FBI, NSA, and DOJ abused 4th amendment rights for 5 years. Shameful!

  9. It’s simple, really. Just like how the democrats will never overturn Roe v Wade or agree on comprehensive immigration reform, so to will Reason rely on libertarianism not becoming mainstream. As soon as it does, they lose their main audience.

    The entire industry relies on barming at one’s own shadow.

    1. *too

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