You don’t get slapped with a FISA warrant unless the court thinks you could be the agent of a foreign power.
Carter Page, a former foreign-policy adviser to then-candidate Donald Trump, reportedly was targeted for surveillance under the Foreign Intelligence Surveillance Act, an extraordinary revelation that — if true — suggests Page may have been working as an agent on behalf of a foreign power.
The report late Tuesday in the Washington Post provided the first concrete evidence linking Page to Russian intelligence at the time when he was working on the Trump campaign. Page, a former investment banker who lived and worked in Moscow from 2004 to 2007, was a target of a Russian intelligence recruitment operation in New York in 2013, court documents show — before the Trump presidential campaign was operational.
“He flies to Moscow more often than I do,” one alleged Russian spy said then of Page, according to court documents. Page reportedly traveled to Moscow in July last year, where he was rumored to have met with senior Kremlin officials, including Igor Sechin, a confidant of Russian President Vladimir Putin and head of oil giant Rosneft.
The FBI and two congressional intelligence committees are currently carrying out wide-ranging investigations into the Russian campaign to meddle in the U.S. election and boost Trump’s electoral chances last year, though those investigations have been overshadowed in the past week by the Trump administration’s abrupt policy changes on Syria and suddenly chilled relations with Russia.
If the Post report is correct, U.S. officials convinced a FISA court judge during the presidential campaign that there is probable cause that Page was “knowingly” working as an agent of a foreign government while advising Trump.
Page has denounced any surveillance directed against him as politically motivated, even while Washington has in recent months been thick with rumors about who among Trump’s inner circle may have been targeted for surveillance under FISA. Thinly sourced reports have claimed that the government sought and received FISA orders targeting Russian banks who may have been laundering money — which could have ensnared U.S. citizens.
The Post article said that Page is the only American whose communications were directly targeted under FISA in 2016 in connection with the Russian investigation. But other Americans could have had their communications intercepted if they were in contact with foreign officials already under surveillance, as happened to former national security adviser Mike Flynn, whose phone calls to the Russian ambassador were intercepted.
In order to target Page directly under FISA, lawyers working on behalf of the Justice Department’s national security division had to prove probable cause that he was an agent of a foreign power. But what, precisely, does that mean?
FISA sets out a series of criteria that government lawyers must meet. Principally, an agent of a foreign power is someone who “knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power.” Such activity can be carried out at the “direction of an intelligence service or network of a foreign power,” but doesn’t have to be.
U.S. persons can also be targeted for entering the United States under a fraudulent identity on behalf of a foreign power or by aiding or abetting the activities of an agent of a foreign power.
Government lawyers must meet a standard of probable cause to secure a FISA order, which refers to marshalling enough evidence to convince a judge that a crime may have been committed. FBI Director James Comey has described the onerous process the Justice Dept. must go through to assemble evidence against a possible target.
For many civil libertarians, the FISA court has been vilified as a rubber stamp for the U.S. government’s surveillance activity. In 2015, for example, the court approved every one of the 1,456 applications that it considered. In previous years, the approval rate has hovered above 99 percent.
But former government national-security lawyers, speaking on condition of anonymity to describe classified legal proceedings, say those statistics don’t reflect the real difficulties of convincing a judge to authorize surveillance on a U.S. citizen.
Government lawyers will frequently brief judges orally on their applications, or submit a “read”-copy of their briefs. Judges will then provide feedback and the government will resubmit their case. This back and forth between the government can include discussions of the evidence backing up the claim that a person is the agent of a foreign power, as well as so-called “minimization procedures,” which refer to the guidelines in place for handling the communications of Americans caught up in a surveillance operation.
The process means that the Justice Dept. only formally seeks authorization for a FISA warrant when it has all but ensured that a warrant will be granted; bids for a warrant that look like they’ll be unsuccessful, lawyers say, are quietly withdrawn rather than formally submitted.
Government lawyers argue that this process results in heavy scrutiny of applications.
The identities of targets of FISA orders — both before and after their approval — are closely guarded. National security officials consider the targets of surveillance under FISA to be among the government’s most sensitive secrets; targets are more valuable if they remain unaware of surveillance.
Additionally, former government lawyers also argue that the intense secrecy surrounding FISA orders is necessary because of the tarnish of being investigated under it. In the context of FISA, to be an “agent of a foreign power” is to be suspected of knowingly working against the interests of the United States.
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