The Volokh Conspiracy

The nation is close to marking the tenth anniversary of the discredited Crossfire Hurricane investigation, which saw the FBI and Justice Department seeking a FISA intercept against Carter Page by relying on false news stories and a partisan oppo research dossier. These days, nobody defends the Carter Page warrant process, but ten years later we still haven't figured out how bad the abuse was. In fact, just last week we learned that Carter Page was not the only U.S. political figure subjected to a dubious FISA surveillance.

The disclosure was made by Senator Grassley, who offered evidence of improprieties in a FISA surveillance order against Walid Phares, a prominent conservative Mideast expert who advised both the Romney and Trump campaigns. By 2018, the Crossfire Hurricane work had been taken over by special counsel Robert Mueller. At the time, the FBI had already obtained three FISA orders (an original and two renewals) for surveillance of Phares. Doubts about the process were raised by an FBI agent who was testifying in the investigation of another agent for misconduct. The agent testified that the three earlier surveillance orders had done little to bolster the case against Phares; if anything, the facts collected by the FBI undercut the original application for FISA surveillance:

Per reporting from another agency and what we learned from the investigation up to the point of the third renewal, there were no corroborating facts that tied {Phares] to certain facts that we thought were originally true. For instance, there was nothing confirming [Phares] received a large money payment, and nothing confirming [Phares] had a meeting in another country for the purposes of the initial allegation. I pointed out these specific corrections to the application in numerous instances throughout the FISA certified copy process. This was circa 2018. I sent these edits to Kevin Clinesmith who said, "We can't send this to DOJ."  Kevin set up a meeting with DOJ and led a discussion on the FISA renewal. I provided arguments for how the information had changed our understanding of our initial analysis. In response they said, "We don't know for sure" and that the statements they used in the FISA to describe the Target was "broad enough" to cover the differing perspectives."

This is a serious allegation. In an ideal world, initial FISA applications against an individual should always be corroborated once surveillance begins and the bureau has better access to information. That's why it's important for renewal applications to scrub the initial application -- to correct any errors and add facts discovered as a result of the surveillance.

If those facts are exculpatory, of course, the government may no longer have a case for surveillance, which makes agents and prosecutors reluctant to add exculpatory facts to renewal applications.  That was particularly a problem in the Carter Page case, where a superficially plausible initial application quickly unraveled in the months that followed, yet the FISA court was not informed of what had changed. (The lack of correction was not the only problem; many of the weaknesses in the Page case were public by the time of later extension requests; these should have triggered inquiry from the court even without a submission by Justice.)

Is this a second FISA scandal, like the Carter Page surveillance? Maybe, though we don't have all the facts. Certainly Walid Phares is a more prominent conservative political figure than Page, so surveilling him should have triggered special concern. But we have only the view of a single agent who lost a bureaucratic fight; we haven't heard the reasons for not revising the third renewal application. That said, there are some red flags.  Kevin Clinesmith's role is particularly troubling; he has already pleaded guilty to concocting fake evidence in support of the Carter Page surveillance application. In this case, he is accused of similar misconduct -- refusing to send the agent's corrections to the Justice Department. In this case, though, he apparently did schedule a meeting with Justice where the agent had a chance to make his case orally. This could be the Carter Page problem all over again, with Mueller's staff keeping inconvenient facts away from the FISA court. Or it could be a legitimate disagreement hashed out in a review of the evidence. Still, the involvement of Clinesmith, and his apparent reluctance to make a written record of the agent's concerns, more or less demand further investigation. Indeed, we may see more than one. Sen. Grassley has already followed up with further document requests. The Justice Department or FBI certainly have reason to determine whether FISA was abused in Phares' case. So does the FISA court itself. The court was asleep at the switch in 2016-17 as flaws in the Carter Page application grew ever more obvious; perhaps its unimpressive performance there will lead it to demand an accounting of the Phares allegations.

Two more points. First, if there were abuses here, they cast doubt on what might be called "traditional" FISA -- full-spectrum wiretapping of people suspected off working for a foreign power. It does not implicate section 702 of FISA, a crucially valuable intelligence program that is aimed at overseas intelligence targets;  section 702 does end up collecting its overseas targets' communications with Americans, but it is far harder to misuse for partisan purposes than traditional FISA. Even if it turns out to be every bit as bad as it looks, the Phares case should not be a reason for Congress to vote against renewal of section 702, which is due to expire in late April.

Second, because section 702 has never been authorized for more than a few years, its renewal legislation has become a vehicle for reforming traditional FISA, and some of the reforms adopted in the last renewal look far-sighted in light of the Phares allegations.

The 2023 Reforming Intelligence and Securing America Act requires in section 5(a) that applications to extend traditional FISA surveillance go to the same judge who approved surveillance in the first place. That should ensure that the renewal is evaluated by someone already familiar with the facts, and thus more likely to ask whether the original claims turned out to be well-founded. Similarly, section 5(c) of the Act requires that the Court designate attorneys to review for sufficiency and for material flaws all traditional FISA applications targeting U.S. persons -- which of course is where the risk of partisan abuse is highest. Since those applications are where the partisanship problems, and much of the civil liberties risk, have been concentrated, they deserve special scrutiny.

In short, we're likely to celebrate the ten-year anniversary of Crossfire Hurricane with yet another set of potential abuses and possible reforms to chew on.