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Out’Foxed’: The Vulpine Network Keeps Swinging And Missing At Carter Page FISA Applications – Analysis

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By George W. Croner*

(FPRI) — Much has been said and written about the initial (and three subsequent) applications used to obtain authority under the Foreign Intelligence Surveillance Act (FISA) to electronically surveil former Trump foreign policy advisor Carter Page. First approved by the Foreign Intelligence Surveillance Court (FISC) in October 2016, and later extended by those three renewal applications at 90-day intervals, each one approved by a different, Republican-appointed judge serving on the FISC, the Page surveillance has become a cause célèbre for Devin Nunes, his coterie of Republican comrades on the House Intelligence Committee, and their daily provocateurs at Fox News.

Whatever else the investigation into Russian election interference may ultimately produce, it should be increasingly obvious that there is no material substance to the charges that Nunes and the Fox News echo chamber have leveled condemning the FISA applications to surveil Carter Page. For its part, the Nunes memorandum, released in February of this year[1] after the White House conveniently declassified its details, reflects the accuracy you would expect from the man who later admitted that, despite having access to the full text of those Carter Page FISA applications prior to releasing the memo, never took the time to read them. As for his Fox News consorts, at least on the issue of the Carter Page FISA warrants, their perpetually uneasy relationship with fact is all the more apparent.

Because the Page FISA applications are part of the broader political debate that surrounds the investigation into Russian election interference, there is little chance that they will ever be extricated and judged solely on their factual merits. For Fox News, at least, there is no story or ratings in that approach. Still, some effort must be made to peer beyond what produces the best decibel intensity, and ascertain whether the applications seeking authority to surveil Carter Page satisfy FISA’s requirements. FISA, its mechanisms, and the critical intelligence operations conducted under its statutory auspices are simply too important to be become collateral damage in the political bloodsport that now all too frequently passes for national governance.

A Sampling of the Fox News View of the Carter Page FISA Applications

Ironically, the essential secretive nature of FISA and of the operations of the FISC has, for months, afforded valuable cover to President Trump and Trump supporters like Devin Nunes and the Fox News cheerleaders in their ceaseless attacks on the FISA surveillance of Carter Page.[2] Despite the first public release of a FISA application in history, the compelling need to protect intelligence sources and methods produced large swaths of redactions to each of the four Carter Page applications. Given the opportunity to hector, speculate, and conjure in the vacuum left by those redactions, Fox News has shared the pronouncements that follow with its listening public. This relatively brief conspectus in no way pretends to catalogue the entirety of the pejorative reporting and commentary that Fox News has leveled at special counsel Robert Mueller, Mueller’s investigation into Russian election interference, the FISC, the Page FISA applications, or the Intelligence Community. What is recounted here simply captures a representative sample of Fox News statements that corrupt any accurate evaluation of either the Carter Page FISA applications, or of the actions of the FISC in approving those applications.

  • The Fox News drumbeat of criticism began promptly with President Trump’s decision to declassify, and the ensuing release of, the Nunes Memo earlier this year. After the Memo’s release, Sean Hannity immediately took to the air to offer the following fact-challenged assessment of its contents:[3]
    • “It proves that the entire basis for the Russia investigation was based on lies that were bought and paid for by Hillary Clinton.”
    • “The people responsible . . . many need to go to jail.”
    • “The FBI misled and purposely deceived a federal court…”
    • “…while using an unverified, completely phony, opposition research, bought and paid for by Hillary Clinton.”
  • Fox followed, on March 14, 2018, with Andrew Napolitano, Fox News’s “senior judicial analyst,” who claimed that Trump Tower was wiretapped by Government Communications Headquarters (GCHQ), the United Kingdom’s signals intelligence counterpart to the National Security Agency (NSA). Napolitano apparently thinks his stint as a state court judge in New Jersey affords him insight into the arcane workings of FISA—a statute which assuredly never tested him during his time on the New Jersey bench. Although suspended for his utterly unsupported accusations, Napolitano returned, on March 28, and told Fox News host Bill Hemmer that President Barrack Obama “went outside the chain of command” to request GCHQ’s involvement—doubling down on the initial unsupported accusations that had precipitated his suspension.[4] Napolitano insisted to Hemmer that his charge was based on information from three “intelligence sources;” but he did not name them, and never has.[5]
  • With the release of the Carter Page FISA applications on the weekend of July 21-22, 2018, Fox News swung into full attack mode: on July 22, Fox News’s Andrew McCarthy announced: “I said this could never happen. This is so bad that they should be looking at the judges who signed off on this stuff, not just the people who gave it. It is so bad it screams out at you.” McCarthy’s denunciation reached the White House and was repeated, word-for-word, in a July 22 Trump tweet. Later that same day, Trump tweeted about Fox News commentator Pete Hegseth’s claim that the “Steele Dossier” was the “main source” for the FISA applications, and concluded his tweet with the capitalized term “ILLEGAL” to describe the entire FISA
  • Continuing the onslaught on her Sunday morning Fox News show, Sunday Morning Futures, Maria Bartiromo opined: “The 400-plus pages were released as a result of lawsuits filed by several media organizations, including Judicial Watch. The documents reveal major components in the FBI surveillance request leading up to the 2016 presidential election. They were memos written by Christopher Steele. That is what they used to get the warrant, the former British intelligence officer hired by a research firm working for Trump’s opponent Hillary Clinton.”
  • Demonstrating no apparent understanding of the difference between criminal and counterintelligence investigations, Bartiromo continued: “I want to know what this tells us about the Robert Mueller probe, because you go back to Carter Page, and here is the guy who was actually wiretapped and surveilled. If Carter Page was an agent of a foreign power working for the Russians, why is he still running around free? Why are there no charges against Carter Page? And, by the way, what does that say about Comey, McCabe, Yates, Rosenstein, and the others who repeatedly certified to the court that he was, that he was an agent of foreign power? Why has he not been charged then?”[6]
  • Having already demonstrated her lack of familiarity with even the most basic of distinctions between criminal and counterintelligence investigations, Bartiromo revealed similar ignorance of the FISA process when she trumpeted: “And many of the people that you mentioned, they have signed — on the signage (?) page of this FISA warrant, they all signed it, OKing it, and that includes John Brennan — Sally Yates, John Brennan, Jim Comey, Peter Strzok. So, John Brennan, he’s the man who deserves a belated bit of scrutiny, according to The Wall Street Journal, Kim Strassel’s op-ed just this past week. We know that John Brennan has been all over town trashing President Trump and trashing the hearing that your committee actually did with Peter Strzok.”

Here, Bartiromo displays an almost comical level of obtuseness. The “signage(?) page” to which she refers is actually the “Certification” page included with each application. FISA requires a certification of each application by the Assistant to the President for National Security Affairs or an “executive branch official designated by the President from among those executive officers employed in the area of national security or defense.”[7] It is an authority not lightly bestowed, and the Certification page of each Carter Page application lists every individual who then held FISA certification authority. Only one of those identified individuals needed to actually provide the certification, and the first three certifications were provided by FBI Director James Comey with the last supplied by acting FBI Director Andrew McCabe.

Bartiromo is simply wrong when she announces, “they all signed it.” They did not, and they would not. Since this was an FBI counterintelligence operation, only the certifying officials at the FBI would be involved. John Brennan, then-director of the Central Intelligence Agency (CIA), would have had no role in certifying the Carter Page applications. But, Brennan is a favorite whipping boy of Fox News, so why pass up the chance to criticize him—no matter how misdirected? Indeed, if Bartiromo and her Fox News support staff had paid any attention whatsoever to detail, they would have noticed that the Certifications for the March and June 2017 renewals of the Carter Page surveillance also list the identities of each FISA certification official. Both of those Certifications identify Mike Pompeo who, by March 2017, had succeeded Brennan as CIA director. If Bartiromo actually believed that the presence of Brennan’s signature line on the first two Page FISA applications signaled that Brennan had “signed off” on the surveillances, why did she express no similar concern regarding the presence of Mike Pompeo’s signature line on the last two Page FISA applications?

  • Bartiromo then introduced Alan Dershowitz, noted retired Harvard Law School professor, but another whose expertise on FISA and the FISC remains undemonstrated. Dershowitz, who misses an opportunity for self-promotion about as often as a gourmand misses a meal, weighed in with this utterly unsupported statement: “I would say 90 percent of redactions are generally designed to cover people’s incompetence, and they’re not national security. And I think you should have an objective, neutral person go through the redactions and always err in favor of publicly releasing and transparency, rather than secrecy.”

The Page FISA applications were released pursuant to requests received under the Freedom of Information Act (FOIA). FOIA requires an agency review the requested materials with mandated disclosure unless information falls within one or more of the exemptions specified in the FOIA statute. Dershowitz’s response betrays no understanding of how FOIA functions or how FOIA reviews are conducted within the Intelligence Community. Nothing in the public record supports Dershowitz’s accusations.[8] Combined with his apparent ignorance of any but the broadest concept of FISA’s requirements, the workings of the FISC, or the nature, sensitivity, or fragility of intelligence sources and methods, there is little other than Fox News’s desire to promote his unsubstantiated views to suggest that Dershowitz is qualified to opine on the legal process that produced the Carter Page FISA applications or, thereafter, the process that produced the redacted version of those applications released under FOIA.

  • Capitalizing on Dershowitz’s ill-founded judgments, this exchange was heard the next morning (July 23, 2018) on Fox and Friends:

Fox commentator Steve Doocy addressing the Page FISA applications: “There’s a lot of stuff here that you would think is not a method of surveillance or anything like that.” “You think [the FISA judge is] going to read all that stuff?”

AINSLEY EARHARDT (CO-HOST): “Well, because they used unverified information to spy on Carter Page or the Trump administration, and it was funded — as the president tweeted over the weekend, reminding all of us — it was funded by Hillary Clinton or by the DNC.”

STEVE DOOCY (CO-HOST): Right, but they never told that to the [Foreign Intelligence Surveillance Court] judge.

EARHARDT: They didn’t.

This exchange exemplifies Fox News’s approach to the Carter Page FISA applications—a quintessential example of two talking heads, unqualified by any knowledge, training or experience, rendering uninformed judgments designed entirely to conform to a preconceived, partisan narrative. If this and the other Fox News excerpts resemble what you have heard or read about the Carter Page FISA applications, then your understanding is seriously flawed. Here is why.

What the FBI knew about Carter Page in 2016

One topic receiving neither delving nor discussion from Fox News is the background and activities of the FISA target: Carter Page. Since it best serves him now, Carter Page keeps his role with the Trump campaign decidedly amorphous, but much more is known now about Carter Page than what the Nunes Memo revealed in February 2018—and what has been learned offers no succor to the Nunes narrative.

Each of the Page FISA applications begins by advising the FISC that “[t]he FBI believes Page has been the subject of targeted recruitment by the Russian government.” That belief was supported by an extensive set of contacts between Page and Russian agents beginning with Page’s residency in Moscow from 2004-2007 when he opened an office for the investment banking firm Merrill Lynch & Co. and, according to Page’s own biography, served as an adviser on “key transactions” involving the Russian state-owned energy company PAO Gazprom and RAO UES, the Russian state-controlled electricity monopoly.

The FBI’s interest in Page blossomed in 2013. In an August 25, 2013, letter that Page himself authored he claimed: “Over the past half year, I have had the privilege to serve as an informal advisor to the staff of the Kremlin in preparation for their Presidency of the G-20 Summit next month, where energy issues will be a prominent point on the agenda.”[9] Of even greater interest to the FBI than Page’s self-description as “an informal advisor to the staff of the Kremlin,” was Page’s contact with a group of Russian spies then working clandestinely in downtown Manhattan. One of them, Viktor Podobnyy, used his own name and worked in New York under official cover as an attaché to Russia’s delegation to the United Nations. But Podobnyy was no diplomat: in reality, he was employed by Russia’s foreign intelligence service, the SVR.[10] Podobnyy’s mission was to recruit American as assets and to collect economic intelligence, and he was assisted by SVR covert operative and putative “trade representative” Igor Sporyshev. Unknown to either Russian, the FBI had a bug inside their SVR office and was secretly listening to their conversations.

The biggest headache for these two Russian spies was finding Americans willing to become intelligence sources for Russia. But they had one promising lead – an energy consultant based in New York City who seemed eager to help, and, promisingly, keen to make money in Moscow.

Carter Page first met Podobnyy at an Asia Society event on China and energy development in January 2013. A few months later, in March, he met with Podobnyy again over coffee or a Coke. When asked in testimony before the House Intelligence Committee why he had sought out Podobnyy a second time, Page said he wanted to practice his Russian, an interest to which Podobnyy alluded on the FBI intercept transcripts. Those transcripts, in which Carter Page is referenced as “Male-1,” note that, for the Russians, there was one drawback to the Page recruitment – they considered Page to be something of a dim bulb. As the FBI intercepts record:

PODOBNYY: [Male-1] wrote that he is sorry, he went to Moscow and forgot to check his inbox, but he wants to meet when he gets back. I think he is an idiot and forgot who I am. Plus he writes to me in Russian [to] practice the language. He flies to Moscow more often than I do. He got hooked on [the Russian state energy company] Gazprom, thinking that if they have a project, he could be rise up. Maybe he can. I don’t know, but it’s obvious he wants to earn lots of money…

SPORYSHEV: Without a doubt …

PODOBNYY: [UI] [then laughs] VP: [UI] [laughs] it’s worth it. I like that he takes on everything. For now his enthusiasm works for me. I also promised him a lot: that I have connections in the Trade Representation, meaning you that you can push contracts [laughs]. I will feed him empty promises.

According to FBI court documents, Podobnyy and Page swapped contacts and exchanged emails for several months. Page cooperated and supplied documents about the energy business. It was an odd arrangement—Russian intelligence operatives roaming around Manhattan, rudimentary tradecraft involving fake umbrellas, and an American intelligence source who spent more time in Moscow than his Russian handlers.[11] As it turned out, Page used office space at 590 Madison Avenue—a building linked by a glass atrium to a well-known New York City landmark—Trump Tower.

These contacts led to Page’s first brush with the FBI, in June 2013, when he was interviewed by FBI counterintelligence agents investigating whether Podobnyy was actually operating as a Russian intelligence agent. That FBI counterintelligence investigation produced a 2015 criminal complaint identifying Podobnyy as an SVR agent and charging him with posing as a U.N. attaché under diplomatic cover while trying to recruit Page as a Russian intelligence source. Ultimately, Podobnyy was afforded diplomatic immunity and permitted to leave the country, but another Russian operative charged in the same criminal complaint, Evgeny Buryakov, was sentenced to 30 months in federal prison.

So, by March 2016, when candidate Trump, in an editorial board interview meeting with the Washington Post, listed “Carter Page, PhD” among his foreign policy advisors, there already had been much about Carter Page to pique the interest of the FBI.

In April, shortly after Page had been anointed as a Trump policy advisor, National Review called Page an “out-and-out Putinite” while noting that Page “ha[d] a direct financial interest in ending American sanctions against [the Kremlin’s state-run gas company] Gazprom.”[12] The article also noted Page’s harsh condemnation of the Obama administration, and of American policy regarding Russian activities in the Ukraine.[13]

Page returned to Russia in July 2016, while still a Trump foreign policy advisor, and gave a speech at the New Economics School in Moscow that continued his sharp criticism of American Russian policies while arguing that “Washington and other Western capitals have impeded potential progress through their often hypocritical focus on ideas such as democratization, inequality, corruption, and regime change.”[14] Although Page subsequently has sought to minimize his activities while in Moscow on that July 2016 trip, he emailed Trump campaign staffers on July 8 about the “incredible insights and outreach I’ve received from a few Russian legislators and senior members of the Presidential administration here.”[15] Separately, in a memo prepared for the Trump campaign, Page wrote, “In a private conversation, (Russian Prime Minister Arkady) Dvorkovich expressed strong support for Mr. Trump and a desire to work together toward devising better solutions in response to the vast range of current international problems.”[16] Whether coincidentally or not, shortly after Page’s input to the Trump campaign, Trump associate J.D. Gordon successfully lobbied for a change to the Republican platform that benefitted Russia by inserting platform language vowing not to provide lethal aid to Ukrainians in their fight against Russian-backed separatists.[17] Page has argued this was coincidence, but in a July 14, 2016 memo to Gordon, Page wrote: “As for the Ukraine amendment, excellent work.”[18]

Ultimately, as Page’s Russian activities received added media attention once Trump secured the Republican nomination, Page parted ways with the Trump campaign in September 2016. By this time, however, aside from Page’s own dealings with Russia, the Intelligence Community had come to the considered conclusion that Russia was actively seeking to interfere with the American election process.[19] Confident that the Russian government, using WikiLeaks as its intermediary, was behind the compromise of emails hacked from the servers of the Democratic National Committee, Homeland Security and the Office of the Director of National Intelligence issued an “Election Security Joint Statement” alerting recipients to the Russian interference efforts and advising that the scope of such efforts could only have been authorized by Russia’s most-senior officials. The Election Security Joint Statement is specifically referenced in the unredacted parts of each of the Carter Page FISA applications.

Admittedly, much of the Page applications remains redacted. However, as the FOIA annotations included with those applications suggest, much of what is protected from disclosure is classified or exempted from disclosure by statutes protecting intelligence sources and methods and, while Dershowitz and other Fox News contributors malign those redactions as “cover for [people’s] incompetence” and unrelated to “national security,” the better explanation likely lies in the words of NSA Director Adm. Michael Rogers who told the Senate Intelligence Committee, in May 2017, while commenting on the importance of the collection authority embodied in FISA Section 702:

If we were to lose 702’s authorities, we would be significantly degraded in our ability to provide timely warning and insight as to what terrorist actors, nation states, criminal elements are doing that is of concern to our nation as well as our friends and allies. This 702 has provided us insight that is focused both on counterterrorism, but as well as counter proliferation, understanding what nation states are doing. It’s given us tremendous insights in the computer network defense arena … I would highlight much — not all, much of what was in the intelligence community’s assessment, for example, on the Russian efforts against the U.S. election process in 2016 was informed by knowledge we gained through 702 authority.[20]

Consequently, it seems likely that some significant part of the redacted text in the Page FISA applications protects against the disclosure of information derived from one of America’s most important, and most sensitive, intelligence collection programs. Collection “inform[ing]” the investigative efforts that ultimately produced the Intelligence Community assessment that “Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the U.S. presidential election” coupled with the further assessment that “Putin and the Russian Government developed a clear preference for President-elect Trump”[21]—a predisposition that Putin confirmed during the now infamous joint news conference held with Trump in Helsinki last month.

What does the “Steele Dossier” say about Carter Page?

Which brings us to the “Steele dossier,” the cynosure of the Nunes Memo’s attack on the Carter Page FISA applications and the bête noire of all who embrace the Fox News narrative.

As almost anyone with a passing interest in the ongoing investigation into Russian election interference now knows, Christopher Steele was a former MI-6 agent working as a private investigator whose services, at the time the dossier was compiled, had been retained by Fusion GPS to seek out information for the Clinton campaign that could be used to discredit the Trump campaign, an initiative begun in the 2016 primary season by Republicans opposed to a Trump candidacy.[22] Steele’s efforts are recorded in a series of 17 memoranda (collectively, the “dossier”) each titled as a “Company Intelligence Report” and serialized as “2016/xxx.”[23]

Steele appears as “Source #1” in the Page FISA applications, and the FBI told the FISC that Steele had been “approached by an identified U.S. person [Glenn Simpson of Fusion GPS] who indicated to [Steele] that a U.S.-based law firm [Perkins Coie] had hired the identified U.S. person to conduct research regarding Candidate #1’s [Trump’s] ties to Russia.” The FBI also told the FISC that it “speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #1’s campaign” adding that “[n]otwithstanding Source #1’s reason for conducting the research into Candidate #1’s ties to Russia, based on Source #1’s previous reporting history with the FBI, whereby Source #1 provided reliable information to the FBI, the FBI believes Source #1’s reporting hereon to be credible.”

Of the 17 memoranda in the Steele dossier, Carter Page is mentioned in eight, and one of those was drafted in December 2016—months after the Page surveillance was first approved by the FISC. Summarized here, are the Steele dossier’s references to Carter Page in the six dossier memoranda prepared prior to the initial October 2016 FISA application.

  • 2016/094 reports that Page met with both Igor Sechin and Igor Divyekin while in Moscow in July 2016. 094 reports that Page discussed “Ukrainian-related western sanctions against Russia” with Sechin, and that Divyekin raised the prospect of providing the Trump campaign with a dossier of kompromat that the Kremlin possessed on Hillary Clinton.

Page was assuredly in Moscow in July 2016, and the trip had been approved by the Trump campaign.[24] While he denied meeting with Sechin, in his testimony before the House Intelligence Committee,[25] Page admitted meeting with one of Sechin’s subordinates, Andrey Baranov, the head of investor relations at Rosneft, the huge Russian energy conglomerate over which Sechin reigns. Page also denied meeting with Divyekin, but, in that same November 2017 testimony before the House Intelligence Committee, admitted he had met with Russian Prime Minister Arkady Dvorkovich. In a July 2016 email to Trump campaign staffers, Page described that meeting with Dvorkovich as a “private conversation” and, in another July 2016 email to Trump campaign officials, also commented on the “incredible insights and outreach received from a few Russian legislators and senior members of the Presidential administration here.”

  • 2016/095 reports that Trump campaign manager Paul Manafort used “foreign policy advisor Carter Page” as an “intermediary” with the Russians.

As is well known, Manafort was, at one time, manager of the Trump campaign, and Page was a “foreign policy advisor” to the campaign. Whether or not Manafort specifically used Page as an “intermediary,” Page did meet with Russian officials and discuss matters of interest to the Trump campaign.

  • 2016/101 reports that “Kremlin engaging with several high profile U.S. players including STEIN, PAGE, and (former DIA Director Michael Flynn), and funding their recent visits to Moscow.”

Stein, Page and Flynn all traveled to Moscow within a period of several months extending from late-2015 into 2016. Whether the Kremlin financed all, or any, of those trips has not been established.[26]

  • 2016/102 cites an “ethnic Russian associate of Republican US presidential candidate Donald TRUMP” as ascribing to Page, among others, the idea that leaking the DNC emails via WikiLeaks would “swing supporters of Bernie SANDERS away from Hillary CLINTON and across to TRUMP.”

The WikiLeaks release of the hacked DNC emails is well-documented. Whether Page had any role in the strategy behind the WikiLeaks action has not been publicly confirmed.

  • 2016/134 reiterates reports that Page met with Igor Sechin during his July 2016 visit to Moscow, and furnishes greater details of the discussions during that meeting.

As noted earlier, Page denies meeting with Sechin, but, during his testimony before the House Intelligence Committee, admitted meeting with a Sechin subordinate, Andrey Baranov.

  • 2016/135 reports that there has been damage to the Trump campaign stemming from the public disclosure that Trump advisors Paul Manafort and Carter Page had met with senior Russian officials. No further substantive information is provided regarding Page.
  • 2016/136 provides another reference to “Trump foreign policy advisor Carter Page’s secret meetings in Moscow with senior regime figures in July 2016.”

Page’s testimony before the House Intelligence Committee confirmed meetings with Andrey Baranov and Arkady Dvorkovich, and, as noted in the discussion of Steele report 2016/094, his contemporaneous emails to the Trump campaign in July 2016 alluded to “incredible insights and outreach received from a few Russian legislators and senior members of the Presidential administration [in Moscow].”

Admittedly, there is much more in the Steele dossier than what is discussed here about Carter Page—some of it is quite salacious, and all of that is unverified—at least publicly unverified since what is beneath the redacted parts of the Page FISA applications remains unknown. But, examining what the dossier says about the activities of Carter Page reveals truthful details about a July 2016 trip to Moscow where Page did, in fact, meet with senior Russian officials purportedly on the very topics about which Page spoke during his public comments made in Moscow. Page can deny meeting the individuals specifically identified in the dossier, but he has admitted to meetings with other Russian officials while in Moscow in July 2016 and has documented those meetings in communications sent to members of the Trump campaign.

Assembling the Pieces Yields the Probable Cause Required for a FISA Order

Probable cause is a flexible standard that emphasizes common sense requiring a reasonable basis for conclusions based on articulable facts. The probable cause standard is considerably below “beyond a reasonable doubt,” but neither is it unsubstantiated speculation. As William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University College of Law, has described it, “It’s the probability of a possibility.”[27] It is predicated on reasonable conclusions drawn from trustworthy facts. FISA specifically provides that, in determining whether or not probable cause exists, the FISC may consider “past activities of the target, as well as facts and circumstances relating to current or future activities of the target.” Applying these standards, the facts available to the FBI in October 2016 supported a FISA application seeking authority to surveil Carter Page, and justified the FISC order granting that authority.

By the time it sought FISA authority to surveil Carter Page in October 2016, the FBI already was aware that George Papdopoulos, another Trump foreign policy advisor, had been pursuing a meeting with high-ranking Russian officials to obtain “dirt” on Hillary Clinton in the form of “thousands of emails.” Russian efforts to interfere in the 2016 presidential election were so pervasive by this time that Homeland Security and the Office of the Director of National Intelligence already had issued the “Election Security Joint Statement” that is clearly referenced in the unredacted language of each Page FISA application.

Page, also a one-time Trump foreign policy advisor, enters this environment already reverberating on the FBI’s radar from his recruitment by Russian intelligence agents in the separate spy case three years earlier. Whether or not there is a FISA surveillance order on Carter Page dating back to 2014, the criminal complaint filed by the government in that earlier counterintelligence investigation shows Page’s active recruitment by those Russian intelligence operatives and contains enough corroborative facts to have supported such an order.

Thus, by the time of the initial Carter Page FISA application in October 2016, the FBI knew: (1) that Page lived in Russia for 3 years (from 2004-2007) where he served as an adviser on “key transactions” involving PAO Gazprom and RAO UES; (2) that Page had been recruited by Russian intelligence agents in 2013 who commented on his willingness to “take[s] on everything” and his “enthusiasm” in assisting the Russians while noting his eagerness to earn “lots of money” from his Russian contacts; (3) that, in August 2013, Page had identified himself as “an informal advisor to the staff of the Kremlin;” (4) that shortly after joining the Trump campaign as an advisor, Page had been identified in the national press as an “out-and-out Putinite” with “a direct financial interest in ending American sanctions against [the Kremlin’s state-run gas company] Gazprom;” (5) that Page traveled to Moscow in July 2016, while serving as a member of the Trump campaign, and delivered a speech harshly critical of U.S. “Russian policy” and the Obama administration’s position on Russian activities in the Ukraine; and (6) that while in Moscow for his speech, Page met with Russian officials and, shortly thereafter, the Trump campaign successfully lobbied against any Republican support for providing lethal aid to the Ukrainians. Further, two emails written by Page while in Moscow in July 2016, and sent to other Trump campaign officials, recount that Page had had a “private conversation” with Russian Prime Minister Arkady Dvorkovich and commented on the “incredible insights and outreach received from a few Russian legislators and senior members of the Presidential administration here.”[28] All of this was known to the FBI, without any mention of anything contained in the Steele dossier—the origins of which the FBI disclosed to the FISC in a footnote that extends for over a page in each FISA application.

Admittedly, sizable parts of what was presented to the FISC in connection with each application remains publicly unavailable, but that includes the specific data allegedly supplied from the Steele dossier. If one assumes that the FISC was presented with all the data in that dossier relating to the activities of Carter Page, educated interpolation requires the assumption that the FISC also received the substance of all other probative information about Carter Page, outlined above and known to the FBI. The sheer bulk of the Page FISA applications (each totaling over 50 pages with each renewal application longer than its predecessor) supports the reasonableness of such an operating premise.

On that reasonable premise, the known facts satisfy the requirement of 50 U.S.C. §1805(a)(2)(A) that there was probable cause to believe that the target of the electronic surveillance was an agent of a foreign power. Or, as Carrie Cordero, an adjunct professor at Georgetown Law and former DoJ national security lawyer, says: “I don’t see anything that supports chairman Nunes’s or the president’s allegations that the FISA process was misused in any way. . . . The information that was released does indicate that all of the proper law and procedure and process was followed, and that there was a fulsome, factual explanation provided to the court.”[29]

What Next?

From the folks at Fox News, there will unquestionably be continued bombast, misdirection, and, at times, outright falsity at least until the Mueller investigation reaches some form of resolution. Since, for Fox News, the promotion of the Carter Page FISA abuse story has never been about the facts, future reporting will align with the chosen narrative—and that narrative will continue. Consider the indignation generated by the recent reporting on Bruce Ohr, former associate deputy attorney general in the Obama Justice Department, whose wife worked for Fusion GPS and who is said to have operated as a conduit in continuing to receive information from Christopher Steele after the FBI had terminated its relationship with Steele. Whatever Ohr did, and however imprudent those activities might be shown to be, it does not change the factual predicate supporting the issuance of the FISA orders authorizing the Page surveillance—but it will likely generate a circus-like hearing at the House Intelligence Committee that will be coming soon to your C-SPAN channels and, in highly partisan dress of course, to your Fox News station.

Like the president, and the chairman and Republican majority of the House Intelligence Committee, the orchestrators at Fox News benefit from the opacity that necessarily surrounds the FISA process. The collective congressional and Fox News cries for complete declassification of the Page FISA applications are an utter ruse—after all, the president has the authority to declassify every word of those applications. Still, for now, he hesitates—whether to maximize the political cover afforded by FISA’s inherent secrecy, or, possibly, from some newfound appreciation for the fragility of the intelligence sources and methods that would necessarily be compromised by such an impetuous decision. All the while, however, the critics of the Page FISA applications continue their castigations confident that the cost to national security required to fully neuter their accusations is likely too high for even this president to risk.

Because the FISC and the FISA statute it implements are inherently secretive, the court’s actions have inspired suspicion over the decades from both sides of the partisan aisle. This time, it is Republicans raising allegations about it being abusive or unfair, but, in the aftermath of the September 11 attacks, it was Democrats who were highly critical of the use of certain FISA authorities. What is different now is that this is no debate over the proper scope of FISA; instead, it has morphed into an inquisition goaded on by a major media network, a rump collection of Republican congressmen, and a president who polarizes in 140 characters or less.

For now, it seems there is little that can alter this narrative because the time and energy consumed in rebutting the contrived conspiracy theories of the White House and its congressional supplicants drowns out a nuanced, more measured conversation—until, perhaps, November. While this currently favors the largely uninformed seeking little more than a fix for their sound bite addiction, no number of those sound bites can alter the essential truth that the Carter Page FISA surveillance orders were properly approved.

About the author:
*George W. Croner
, a Senior Fellow at FPRI, previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

Source:
This article was published by FPRI.

Notes:
 [1] Provocatively titled “Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation” (the “Nunes Memo”), the Nunes Memo was released despite the FBI expressing “grave concerns” about the accuracy of the document. Given the propaganda generated by Nunes and his Fox boosters over the ensuing six months, the FBI’s expression of “grave concerns” over accuracy seem almost trite.

I initially wrote about the content of the Nunes Memo in “Where’s the Beef: The House Intelligence Committee Memo Provides Few Answers and Leaves Many Questions,” FPRI E-Notes, February 6, 2018.

[2] I have written previously on the essential secrecy accompanying FISA operations, and on the origins and purposes of the FISC in the FISA structure. See George Croner, “The FISA Court’s Essential Purpose,” FPRI E-Notes, August 6, 2018, and, “Why So Secret: The Foreign Intelligence Surveillance Court and the Unique Fragility of Communications Intelligence,” FPRI E-Notes, March 21, 2018.

[3] Hannity, Fox News, February 2, 2018.

[4] Amy Wang, “Suspended Fox News expert returns,” Washington Post, March 29, 2018.

[5] When questioned at a March 20, 2018 hearing of the House Intelligence Committee about the charge of GCHQ wiretapping and whether he had requested British intelligence to intervene, Admiral Michael Rogers, Director of the National Security Agency (NSA), said: “No sir, nor would I, that would be expressly against the construct of the Five Eyes agreement.” The “Five Eyes” Agreement is an intelligence sharing arrangement among the U.S., Canada, the United Kingdom, Australia, and New Zealand.

[6] What it “says” is that, unlike Bartiromo, each of them understood that the Carter Page surveillance was conducted as part of an FBI counterintelligence investigation which may, or may not, produce criminal charges.

[7] 50 U.S.C. § 1804(a)(6).

[8] I provide a more expansive discussion of the FOIA exemptions cited in the Carter Page FISA applications in “The Carter Page FISA Applications: Much Risk to FISA, Little New Insight, But a Rebuff to the Nunes Narrative,” FPRI E-Notes, July 23, 2018.

[9] Massimo Calabresi & Alana Abramson, “Carter Page Touted Kremlin Contacts in 2013 Letter,” Time Magazine, February 4, 2018.

[10] Not coincidentally, Vladimir Putin was the former head of the FSB—the SVR’s domestic counterpart.

[11] Interestingly, in August 2017, both the Washington Examiner and CNN reported that Carter Page had been the target of FISA surveillance “since 2014” as part of this earlier FBI counterintelligence investigation. Ariella Phillips, “Former Trump advisor Carter Page under FISA warrant since 2014: Report,” Washington Examiner, August 3, 2017 and Evan Perez, Pamela Brown and Shimon Prokupecz, “One Year into the FBI’s Russia investigation, Mueller is on the Trump money trail,” CNN, August 4, 2017. To date, there has been no official confirmation of such surveillance but the information disclosed in the government’s criminal complaint filed against Podobnyy, et al. offers an adequate factual basis to establish probable cause for a FISA surveillance of Carter Page.

[12] Robert Zubrin, “Trump: The Kremlin’s Candidate,” National Review, April 4, 2016.

[13] Id.

[14] Scott Shane, Mark Mazzetti, and Adam Goldman, “Trump Advisor’s Visit to Moscow Got the FBI’s Attention,” New York Times, April 19, 2017.

[15] Andrew Prokop, “Carter Page’s bizarre testimony to the House Intelligence Committee, explained,” Vox, November 7, 2017.

[16] Id.

[17] John Kruzel,The Russia investigation and Donald Trump: a timeline from on-the-record sources (updated),” Politifact, July 16, 2018.

[18] Id.

[19] That conclusion was based in part on knowledge that George Papadopoulos, another Trump campaign advisor, also had been pursuing “dirt” on Hillary Clinton from the Russians. The chronology has been clear that it was the Papadopoulos information, and not Carter Page, that triggered the FBI’s opening its counterintelligence investigation.

[20] Full transcript of Senate Intelligence Committee Hearing, Washington Post, May 11, 2017 (emphasis added). FISA Section 702 collection authority was renewed by Congress in January 2018. I advocated that renewal in “The Clock is Ticking: Why Congress Needs to Renew America’s Most Important Intelligence Collection Program,” FPRI E-Notes, September 29, 2017.

[21] Assessing Russian Activities and Intentions in Recent U.S. Elections (UNCLAS) (the “ICA”), January 6, 2017. I discussed the ICA in “Fact and Denial: Trump’s Inexplicable Refutation of the U.S. Intelligence Community’s Assessment of Russian Election Interference,” FPRI E-Notes, July 18, 2018.

[22] Less well known, and unmentioned in the Nunes Memo, is the fact that Steele’s research had initially been funded by a conservative, Republican-leaning sponsor (i.e., the Washington Free Beacon) before it was adopted by Democratic sources once Trump secured the Republican nomination. Further, the FBI could not help but notice that Steele’s basic information about Russian connections tracked the FBI’s own investigative efforts that already had revealed, for example, Papadopoulos’s disclosures that the Russians were offering “political dirt” on Hillary Clinton, information that the HPSCI Memorandum concedes was also included in the Page FISA application.

[23] The internal serial numbers on the “Company Intelligence Reports” included in the dossier are 080, 086, 094, 095, 097, 100, 101, 102, 105, 111, 112, 113, 130, 134, 135, 136, and 166. Each is approximately two pages in length.

[24] Artin Afkhami, “A Timeline of Carter Page’s Contacts with Russia,” Slate, November 7, 2017.

[25] Testimony of Carter Page, House Permanent Select Committee on Intelligence, November 2, 2017.

[26] Stein and Flynn sat at Putin’s table in Moscow in December 2015 at the dinner celebrating the 10th anniversary for Russian television station “RT.”  “RT,” as it turns out, was identified in the ICA as a principal conduit of Russian disinformation disseminated as part of Russia’s interference efforts with the 2016 election.

[27] Tom Batchelor, Donald Trump wiretapping claims: NSA director denies GCHQ was asked to spy on Trump Tower, Independent, March 20, 2017.

[28] Frank Figliuzzi, a former FBI counterintelligence chief who is now an NBC News contributor, has commented that, considering what the FBI knew about Page’s activities, it would have been “malpractice” for the Bureau not to investigate.

[29] Brian Barrett, Why Trump Won’t Stop Talking About the Carter Page Wiretap, Security, July 23, 2018.


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Published by the Foreign Policy Research Institute

Published by the Foreign Policy Research Institute

Founded in 1955, FPRI (http://www.fpri.org/) is a 501(c)(3) non-profit organization devoted to bringing the insights of scholarship to bear on the development of policies that advance U.S. national interests and seeks to add perspective to events by fitting them into the larger historical and cultural context of international politics.

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