The Volokh Conspiracy
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Is Submitting a False Statement to the FISA Court a "Victimless" Crime?
In an amicus brief for leading crime victims' rights organizations, I explain why ex-FBI lawyer Clinesmith's crime of altering an email as part of an effort to renew a warrant to surveil Dr. Carter Page made Page a "victim" under the Crime Victims' Rights Act.
On January 29, former-FBI lawyer Kevin Clinesmith will be sentenced for making a false statement as part of the Government's application to renew a Foreign Intelligence Surveillance Act (FISA) warrant authorizing secret surveillance of Dr. Carter Page's communications. In connection with that sentencing, an important crime victims' rights issue has arisen. Dr. Page has filed a motion to be recognized as a "victim" under the Crime Victims' Rights Act (CVRA), arguing that he has been "directly and proximately harmed" by Clinesmith's crime. I have filed an amicus brief for crime victims' organizations supporting Dr. Page.
The general issue of who qualifies as a "victim" under the CVRA is a foundational question for protecting "victim's" rights and thus is extremely important to the crime victims' movement. Dr. Page's attorneys contend that:
In this case, Dr. Page was the target of the crime. He was the target of the
FISA warrant surveillance. Clinesmith lied … and provided an altered
document to him to mislead the agent [who drafted the warrant application] into believing that obtaining a FISA warrant against Dr. Page was legitimate, when in fact, it was not. Dr. Page suffered the direct and proximate harms … because the 4th FISA warrant was issued in reliance on Clinesmith's false statement.
If Dr. Page is recognized as a "victim," he will entitled to provide a victim impact statement at Clinesmith's sentencing hearing.
Along with victims' rights attorney James Marsh, I have filed an amicus brief in support of Dr. Page's position that he is a "victim" under the Act. My brief on behalf of the National Crime Victims Law Institute, the National Organization for Victim Assistance, the National Center for Victims of Crime, and other leading crime victims' rights organizations explains why Dr. Page's position that he is a "victim" is correct, but suggests a slightly simpler route to the same conclusion. Rather than relying on the ultimate effects of the FISA warrant being granted based on the false information about Dr. Page, the amicus victims' organizations explain that the submission of a false statement itself is "direct and proximate harm" sufficient to create "victim" status under the CVRA (some citations omitted):
In the Statement of Offense in Support of Guilty Plea, the Defendant admits
that his false statement fell within the jurisdiction of the judiciary because it involved an application to renew a FISA warrant to surveil Dr. Page. The Defendant also admits that he knowingly provided "materially false" information about the contents of an email from a government agency to his supervisor who prepared the FISA warrant application—materially false information that was important in how the Government crafted its application. And the Defendant knew that the substance of the materially false statement he sent to his supervisor about Dr. Page would be conveyed "to the court"—i.e., to the [Foreign Intelligence Surveillance Court ("FISC")].Standing alone, these undisputed events establish Dr. Page's "victim" status under
the CVRA. The reason that the FISC exists is to make a fair determination of whether to allow Government surveillance of identifiable individuals based on all pertinent evidence. As the FISC explained when learning about the Defendant's deception, "'Congress intended the pre-surveillance judicial warrant procedure' under FISA, 'and particularly the judge's probable cause findings, to provide an external check on executive branch decisions to conduct surveillance' in order 'to protect the fourth amendment rights of U.S. persons.'" Of course, the judiciary cannot "protect the fourth amendment rights of U.S. persons"—such as Dr. Page—when a Government attorney responsible for preparing a FISA application knowingly falsifies material information used in preparing that application. …,By committing his crime, the Defendant deprived Dr. Page of the careful FISC review to which he was entitled—i.e., a review of the warrant application based on a full and accurate accounting of the available information. Because the Defendant criminally interfered with a fair review of a FISA warrant application targeting Dr. Page, the Defendant harmed Dr. Page. Nothing more is required to establish Dr. Page's "victim" status.
The Government has now responded in its brief, arguing that, although the defendant's alteration of the email was a "material" falsification, it is unclear whether the outcome of the warrant application would have been any different in the absence of the crime.
Defendant Clinesmith has also filed a brief, arguing that "Page does not—and cannot—establish that his harm was proximately caused by [the] offense rather than sixteen other errors identified by the Inspector General, including the FBI's heavy reliance on reporting from a confidential human source, Christopher Steele, to establish probable cause for all four FISA applications."
On January 12, in his reply brief, Dr. Page takes on the argument that there were multiple misstatements in addition to Defendant Clinesmith's falsification of the email--and thus that Clinesmith is somehow absolved of causing harm to Dr. Page. Dr. Page recounts conventional tort principles, explaining that Clinesmith's position is "akin to arguing that, where multiple assailants stab someone who then dies of exsanguination, none is guilty because it cannot be established which one caused the death. This is nonsensical as the decedent in such a case is the victim of each assailant."
Judge Boasberg has set sentencing for January 29, and a ruling is expected on or before that date. Obviously, I hope that he finds Dr. Page was a "victim" in this case. It would be a dangerous precedent to say that submitting false information to the FISA Court to obtain a warrant is somehow a "victimless" crime. And it would compound that danger to say that, merely because the Government made multiple inaccurate statements in obtaining its permission to surveil Dr. Page, none of the statements can be viewed as having caused harm.
In this case, the simplest conclusion is the correct one: Criminally making a false statement to the FISA court to obtain a warrant to surveil a person "directly and proximately" harms that person. Accordingly, Dr. Page should be recognized as a "victim" of Clinesmith's crime.
