Foreign Policy Research Institute A Nation Must Think Before it Acts The Carter Page FISA Applications: Much Risk to FISA, Little New Insight, But a Rebuff to the Nunes Narrative
The Carter Page FISA Applications: Much Risk to FISA, Little New Insight, But a Rebuff to the Nunes Narrative

The Carter Page FISA Applications: Much Risk to FISA, Little New Insight, But a Rebuff to the Nunes Narrative

For the first time since the passage of the Foreign Intelligence Surveillance Act (FISA) in 1978, the Unites States government has released publicly an application seeking FISA surveillance authority. It was a seminal moment for all the wrong reasons.

As David Kris, a former assistant attorney general for national security at the Department of Justice, observed, the release of these FISA applications, no matter how heavily redacted, represents a monumental disclosure to the public and may have long-term programmatic consequences long after this president leaves the White House.[1] Given the potential ramifications of this unprecedented revelation, it is unfortunate that it has occurred in the context of such jejune and obviously politically motivated pursuits.

The trigger for the disclosure was a Freedom of Information Act (FOIA) request from the interest group, Judicial Watch.[2] Betraying its true interests and lack of appreciation for the sensitivity of the intelligence sources and methods implicated with these applications, upon receipt of the 412 pages released by the government, Judicial Watch drew all the wrong conclusions from its content, declared itself unsatisfied with what was released, and urged President Trump to “intervene and declassify the heavily redacted material.”[3] One can only trust that even this president, notwithstanding his demonstrated lack of appreciation for the protection of intelligence sources and methods, has the sense to rebuff this entreaty.

The Content of the Applications

Judicial Watch’s interest in the Page FISA applications mirrored that ostensibly shown by Devin Nunes and the rest of the Republican majority on the House Intelligence Committee. In an article[4] I wrote in February 2018, I noted that the approval of four separate FISA applications for authority to surveil Carter Page undercut the basic argument contained in the memorandum[5] issued by Nunes (the “Nunes memo”) that the Foreign Intelligence Surveillance Court (FISC) was misled regarding the now infamous “Steele dossier” in those applications. I pointed out that the available public information regarding the original Page application suggested that the information that had been provided to the FISC on Steele’s reliability seemed to satisfy the requirements of FISA and that there was significant information aside from the Steele dossier to warrant the FBI’s interest in Carter Page and its suspicion that Page was acting as a Russian agent.

Those points all have been confirmed by the content of the Page FISA applications themselves which now offer greater insight both as to the initial application and the three subsequent 90-day renewals that extended surveillance through the first three quarters of 2017. First, we now know that the four applications were approved by four different FISC judges, all Republican-appointees. Each application addressed Christopher Steele’s reliability in a lengthy footnote that, among other things, acknowledges the FBI’s speculation that Steele was originally hired by a “U.S. person [who] was likely looking for information that could be used to discredit Candidate #1’s [Trump’s] campaign.”[6] Each application builds upon its predecessors, as reflected in their respective lengths. The initial application, through the verification page, is 53 pages long. Each succeeding application, as a renewal of the initial surveillance authority, supplements its predecessors so that the first renewal, in January 2017, is 67 pages, the second renewal in April 2017 is 78 pages long, and the third renewal in June 2017 is 88 pages long. The increasing length is to be expected since these were subsequent renewals of an authorized surveillance that presumably included information already acquired to demonstrate the justification for renewal.

The information that actually accounts for the increased length of each successive application is largely redacted but, as reflected in the table below compiled by the Washington Post,[7] the Steele dossier (which the Post designates as included in “Section III” of each application) essentially occupies the same amount of space in each application while, in the renewals, the added length is a product of what the Post designates as “Section IV through conclusion” of each application—portions devoted to including Page’s denial of the accusations leaked about his contact with Russian officials and, presumably, additional intelligence data regarding Page’s activities.

Thus, as the Post highlighted, the portion of each application dedicated to the discussion of Steele and his dossier remained relatively constant, while the information contained in the remaining sections increased with each successive renewal.

A few more observations on the handling of Steele and his information in the applications are noteworthy. After Steele leaked the existence of his dossier in October 2016, the FBI terminated its relationship with him – and so advised the FISC in boldface type in footnote 9 of the January 2017 FISA renewal application. Also, while Steele is never identified by name, this is consistent with the handling of many identities in the applications—Trump is “Candidate #1.” Clinton, “Candidate #2.” The Republican Party is “Political Party #1.” Neither Clinton, Fusion GPS, Steele, nor the Democratic National Committee is ever identified by name. This is not an unusual practice in intelligence reporting where U.S. person identities are often designated by generic descriptions (e.g., “a U.S. person”) unless the identity is necessary to understand the intelligence information or assess its importance.

What’s Redacted?

As many commentators already have noted, significant sections, sometimes accounting for entire pages, have been redacted from all of the FISA applications including the bulk of the additional information provided to the FISC that differentiates the initial application from the renewals. However, a certain amount of interpolation and interpretation might be drawn from considering the extensive redaction notations found in the margins of the documents. Likely strange hieroglyphics to those unfamiliar with FOIA, these notations designate the specific FOIA exemptions used as authority to withhold from public release the information redacted for which disclosure would otherwise be required under FOIA. In particular, the b(1), b(3) and b(7) FOIA exemptions pervade all the applications. From an intelligence sources and methods perspective, the most frequently invoked exemptions are b(1) which allows for redaction of properly classified information, and b(3) which allows for the redaction of any information specifically exempted from disclosure by another congressional statute. The use of the b(1) exemption is relatively self-explanatory: if the information is classified properly, it is exempt from disclosure. For intelligence sources and methods, b(3) often provides an even broader source of protection from disclosure. By way of example, the National Security Agency Act of 1959 (50 U.S.C. §402 Note), provides:

(a) Except as provided in subsection (b) of this section, nothing in this Act or any other law (including, but not limited to, the first section and section 2 of the Act of August 28, 1935 (5 U.S.C. 654) [repealed by Pub. L. 86-626, title I, Sec. 101, July 12, 1960, 74 Stat. 427]) shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency.

Thus, this broadly worded statute protects against the disclosure of virtually any information relating to the activities of the National Security Agency (NSA). If the NSA and its signals intelligence collection activities were involved or referenced in any way in the Page FISA applications, that information would have been redacted using either, or both, the b(1) and b(3) FOIA exemptions as authority.

Other statutory protections for intelligence activities are also likely candidates for the b(3) exemptions that permeate the Page FISA applications: 18 U.S.C. § 798 makes it unlawful to disclose any classified information concerning the communications intelligence activities of the United States, while 50 U.S.C. §§ 3024 and 3507 provide additional protections for intelligence sources and methods. Finally, the b(7) exemption provides specific protection to information compiled for law enforcement purposes including information that would compromise confidential sources or reveal investigative techniques and procedures used in law enforcement prosecutions or investigations. This latter FOIA exemption is of particular value to the FBI and, not surprisingly, appears frequently since the surveillance authority pursued in the Page FISA applications was sought as part of an FBI counterintelligence investigation.

Consequently, the pervasive b(1), b(3) and b(7) annotations appearing throughout the 412 pages of the Page FISA applications suggest that large swaths of the information contained in those applications is, and remains, properly classified for national security reasons. The cited b(3) exemptions most likely apply to the invocation of specific statutes (like the National Security Agency Act) that protect against the disclosure of those intelligence sources and methods that would be compromised if revealed. The use of the b(7) exemption is likely specific to FBI-originated redactions directed to protecting against the disclosure of law enforcement and counterintelligence techniques. Thus, while the substantive content of the redacted information remains secret, the cumulative effect of the redactions found in the applications suggests the existence of a highly classified counterintelligence investigation involving multiple agencies employing sensitive intelligence sources and methods that was pursuing, among other elements, the prospect that Carter Page was serving as a Russian agent.

What clearly is not shown in the Page FISA applications is any sustenance for the conspiratorial views of untoward political bias that are the central theme of the Nunes memo. Then, again, this is not particularly surprising given that Nunes, in an interview with Fox News in February, admitted that he himself had not read the Page FISA application (presumably, any of them)—a distancing from the facts that he has continued to employ even as he hectors the Department of Justice about its cooperation in supplying highly sensitive materials like these FISA applications to the House Intelligence Committee for purposes that seem to have virtually nothing to do with legitimate congressional oversight.[8] While the Page FISA applications, with all their redactions, surely cannot answer every question about the investigative activities that led to the decision to seek FISA authorization to surveil Carter Page, there seems enough in these 412 pages to consign to the nearest dumpster the Nunes Memo and its misguided allegations of political bias.

[1] Kris, David, What to Make of the Carter Page FISA Applications, Lawfare, July 21, 2018.

Frances Townsend, a counterterrorism advisor to President George W. Bush from 2003-2008 with extensive FISA experience, tweeted that “[t]he release of these [Page FISA applications] documents is irresponsible & will irreversibly weaken counterintelligence & Counterterrorism investigations going forward.” @FranTownsend, July 21, 2018.

[2] Although I will defer addressing the topic here, there is an argument that Congress does not intend that FOIA apply to FISA-related information. See, e.g., Rosenthal, Daniel, Watermelons and National Security: Protecting U.S. Foreign Intelligence Collection from Unnecessary Disclosure, Lawfare, August 22, 2016.

[3] Press Release from Judicial Watch, “Judicial Watch Obtains Carter Page FISA Court Documents,” July 21, 2018.

[4] George W. Croner, “Where’s the Beef? The House Intelligence Committee Memo Provides Few Answers and Leaves Many Questions,” FPRI E-Notes, February 6, 2018.

[5] Provocatively titled “Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation,” the Nunes Memo was released by Nunes and the House Intelligence Committee’s Republican majority earlier this year.

[6] In the initial FISA application, the Steele information is provided in footnote 8, a recounting which spans the bottom of page 15 and continues for the entirety of page 16. In the second application, the Steele information appears as footnote 9, and covers the better part of pages 17-18. In the third and fourth applications, the Steele “footnote” is number 10 and also covers most of pages 17-18.

[7] Philip Bump, “With the Release of New Documents, Devin Nunes’s memo on Carter Page has gotten even less credible,” Washington Post, July 21, 2018.

[8] See, George Croner, Intelligence “Oversight” or Forbidden Intrusion: How Far Can Congress Go, FPRI E-Notes, June 8, 2018.