Justice Department concludes it lacked legal basis for surveillance of Carter Page

The fallout from the Inspector General’s report on the Carter Page FISA warrant continues. The Wall Street Journal reports that last month the DOJ sent a letter to the court admitting it lacked sufficient probable cause to support two of the surveillance renewals on Page:

The Justice Department now believes it should have discontinued its secret surveillance of one-time Trump campaign adviser Carter Page far earlier than it did, according to a new court filing unsealed Thursday…

The Justice Department now appears to have concluded that there was “insufficient predication to establish probable cause” in the last two renewals in 2017.

In case you’ve forgotten the details, the FBI applied for a secret surveillance warrant on Carter Page in October 2016. Under the law, surveillance warrants have to be renewed every three months. So the warrant on page was extended three times in January, April, and June of 2017. According to this report, the DOJ no longer believes the April and June extensions should have happened. Here’s Page’s reaction via the Washington Post:

Page said in a statement: “Today’s unprecedented court filing represents another step on the road to recovery for America’s deeply damaged judicial system. I hope that this latest admission of guilt for these civil rights abuses by the Justice Department marks continued progress towards restoring justice and remedying these reputationally ruinous injuries.”…

The department’s concession is validating for conservatives who had long criticized the surveillance of Page, and it is likely to fuel continued attacks on the Russia probe, which was eventually taken over by special counsel Robert S. Mueller III.

According to the court’s order, the department concluded that its final two orders to surveil Page “were not valid.” It did not take a position on whether the first two orders were similarly flawed, according to the court’s order.

All of this stems from the DOJ Inspector General report released last month which identified 17 problems with the FBI’s warrant application to the FISA court. The errors were significant enough that even the ACLU called them “alarming from a civil liberties perspective.”

In the wake of the report, the FISA Court issued a letter demanding that the FBI come up with a process to ensure similar errors didn’t happen again. The FBI complied and produced a plan by the deadline and the FISA Court selected an outside reviewer to look at the FBI’s proposals.

David Kris, the person chosen by the court to handle the review, had formerly backed the warrants on Carter Page and even attacked Devin Nunes over the “Nunes memo,” leading some to suspect a whitewash was about to take place. But Kris submitted his review last week and concluded that the FBI’s proposals did not go far enough:

Kris does not defend the FBI’s actions surveilling Page in his response, saying bluntly that nobody is disputing that “basic, fundamental, and serious errors” were found in the Page warrant requests. Kris worries that Wray’s plan doesn’t really account for what procedures will be used with surveillance requests that intersect with political campaigns. And while Kris does support the improvements that Wray has listed, he says the FBI needs to go further. He is calling for better communication between the FBI and Justice Department attorneys, which in this case partly contributed to the information gaps in the warrant applications. Kris also suggests the possibility of having field agents, not just agents working at FBI headquarters, signing onto warrant applications or at least requiring them to attest to the court to the facts that are in the warrant application. Field agents might be more likely to notice an important omission.

Kris also says the court should require that the FBI regularly submit reports on training participation rates and test scores. The court could, in turn, prohibit FBI agents who haven’t successfully completed FISA warrant from signing on as declarants; at the very least, the court would know to bring an extra level of skepticism.

Finally, there’s an even larger question that IG Horowitz is investigating right now. Did the FBI submit similarly shoddy warrant applications to the FISA Court in other cases. We’ll probably have to wait a few more months for his answers to that question.