What to Make of the Carter Page FISA Applications

Source: Lawfare | July 21, 2018 | David Kris

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Based on this back and forth between the HPSCI partisans, I wrote on Lawfare at the time that the FBI’s disclosures on Steele “amply satisfie[d] the requirements” for FISA applications, and that the central irony of the Nunes memo was that it “tried to deceive the American people in precisely the same way that it falsely accused the FBI of deceiving the FISA Court.” The Nunes memo accused the FBI of dishonesty in failing to disclose information about Steele, but in fact the Nunes memo itself was dishonest in failing to disclose what the FBI disclosed. I said then, and I still believe, that the “Nunes memo was dishonest. And if it is allowed to stand, we risk significant collateral damage to essential elements of our democracy.”

Now we have some additional information in the form of the redacted FISA applications themselves, and the Nunes memo looks even worse. In my earlier post, I observed that the FBI’s disclosures about Steele were contained in a footnote, but argued that this did not detract from their sufficiency: “As someone who has read and approved many FISA applications and dealt extensively with the FISA Court, I will anticipate and reject a claim that the disclosure was somehow insufficient because it appeared in a footnote; in my experience, the court reads the footnotes.” Now we can see that the footnote disclosing Steele’s possible bias takes up more than a full page in the applications, so there is literally no way the FISA Court could have missed it. The FBI gave the court enough information to evaluate Steele’s credibility.

There’s also more detail on the previous disclosure from the House intelligence committee Democrats’ memo on how Steele went to the press with the “dossier” when FBI Director James Comey sent his October 2016 letter to Congress disclosing the possible newfound importance of the Weiner laptop in the Clinton investigation. According to the FISA applications, Steele complained that Comey’s action could influence the election. But when Steele went to the press, it caused FBI to close him out as an informant—facts which are disclosed and cross-referenced in the footnote in bold text.

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But it is worth noting that—and as the Democrats previously pointed out—the judges who signed off on these four FISA applications were all appointed by Republican presidents, including one George H.W. Bush appointee (Anne Conway), two George W. Bush appointees (Rosemary Collyer and Michael Mosman) and one Reagan appointee (Raymond Dearie). I know some of those judges, and they certainly are not the types to let partisan politics affect their legal judgments.

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