Report

GOP Memo Raises Unlikely Claims About Surveillance Warrant

Could a Trump aide have been targeted based on the famous dossier?

U.S. Rep. Devin Nunes (R-Calif.), chairman of House Intelligence Committee, attends a lunch on Feb. 1, 2018 at the Greenbrier resort in White Sulphur Springs, West Virginia. (Photo by Alex Wong/Getty Images)
U.S. Rep. Devin Nunes (R-Calif.), chairman of House Intelligence Committee, attends a lunch on Feb. 1, 2018 at the Greenbrier resort in White Sulphur Springs, West Virginia. (Photo by Alex Wong/Getty Images)

With the release Friday of a previously secret memo, Republicans intensified their assault on the FBI’s investigation of U.S. President Donald Trump’s ties to Russia with claims that the bureau misled a powerful surveillance court in order to obtain a wiretap order against Trump advisor Carter Page.

The memo, written by GOP staffers on the House Intelligence Committee, represents the latest attempt by congressional Republicans to insulate Trump from a wide-ranging investigation led by special counsel Robert Mueller. The memo’s most incendiary claim is that the FBI relied on a dossier written by Christopher Steele, a former British intelligence officer, to establish probable cause to surveil Page.

But veteran FBI agents who have worked counterintelligence cases argue that even if Steele’s material were used to inform the bureau’s investigation, it would never have made it into a warrant application under the Foreign Intelligence Surveillance Act without first being verified.

“There’s a lot of information that comes into the bureau, but they don’t ever go into FISAs,” said Mike Rochford, the former head of the FBI’s counterintelligence section. “How do you verify it? You get an American intelligence officer in front of the person.”

Verifying such information represents a key check on attempts by American adversaries to mislead the FBI. “Otherwise, other governments can make stuff up and take you down paths” they want you to examine, Rochford said.

Another former counterintelligence official scoffed at the notion that the bureau would directly work material from Steele into a FISA application.

“This dossier thing? Talk about disinformation,” said a veteran retired FBI counterintelligence official, who asked not be named. The former official compared the dossier to reports in the runup to the 2003 invasion of Iraq, when some American officials grew convinced that Iraq had tried to buy enriched uranium from Niger. “It was the same source that was playing everybody.”

The GOP memo reveals that the government sought and received three renewals of its FISA order targeting Page, indicating the operation generated productive intelligence. “It means that they were getting enough information to convince a judge that this technique was properly applied, and they haven’t gotten to the end game yet, but it was productive,” Rochford said.

The memo claims to shed some new light on the FBI’s efforts to establish the true nature of Page’s relationship with the Russian state, but House Intelligence Committee Democrats argue that the Republican document omits key facts and is stripped of crucial context. Committee Republicans have so far blocked an attempt by their Democratic counterparts to release another memo that reportedly rebuts the GOP version.

“The sole purpose of the Republican document is to circle the wagons around the White House and insulate the President,” Rep. Adam Schiff (D-Calif.), the ranking Democrat on the House Intelligence Committee, said in a statement. Other reports indicate the Trump administration views the memo’s release as laying the groundwork for firing Deputy Attorney General Rod Rosenstein, who is overseeing the Mueller probe.

If Trump’s allies are hoping the memo will help derail the investigation into the president’s Russia ties, they are likely to be disappointed, as the document acknowledges that the FBI’s counterintelligence investigation was sparked in July 2016 by information related to George Papadopoulos, another former Trump aide who has pleaded guilty to lying to FBI agents about the nature of his contacts with Russians.

The FBI has publicly argued against the release of the memo, which has transfixed Washington in recent days. In a statement earlier this week, the FBI said the document contains “material omissions of fact that fundamentally impact” its accuracy.

Trump has also touted the memo as a way to fend off the investigation led by Mueller, who is examining whether aides to the president conspired with Kremlin agents during the 2016 election.

The standoff between congressional Republicans and the White House on one side and congressional Democrats and the intelligence and law enforcement community on the other has opened an unprecedented rift in Washington between those who see the memo as a politically motivated hit job on the bureau and those who allege it documents unprecedented abuses of surveillance powers.

“The American people have a right to know when officials in crucial institutions are abusing their authority for political purposes,” House Intelligence Committee Chairman Devin Nunes (R-Calif.) said in a statement.  

White House press secretary Sarah Huckabee Sanders said the memo “raises serious concerns about the integrity of decisions made at the highest levels of the Department of Justice and the FBI.”

According to the memo, the FBI sought and received an order on Oct. 21, 2016, from the Foreign Intelligence Surveillance Court to carry out “electronic surveillance” on Page. Such authorizations must be renewed every 90 days, and the memo claims the bureau has obtained three renewals, each of which requires a finding of probable cause that Page, a businessman and former Navy officer with ties to Russia’s business elite, is working on behalf of a foreign government.

The memo claims that the FBI’s deputy director, Andrew McCabe, who this week announced his retirement under pressure from Trump, told the House Intelligence Committee in December 2017 that the FBI would not have sought a warrant to surveil Page without information contained in the Steele dossier.

Crucially, the memo also alleges that the Steele dossier “formed an essential part” of the FISA application for Page, and that the former British spy did not disclose that he wrote the memos while working on behalf of the research firm Fusion GPS, but House Intelligence Committee Democrats argue those claims are misstated and overblown.

Fusion was first hired by the conservative newspaper Washington Free Beacon to conduct research into Trump. After Trump secured the GOP presidential nomination, the Hillary Clinton campaign picked up the tab for Fusion’s work. According to the GOP memo, the FISA application revealed that Steele was working for a “U.S. person” but did not name Fusion or its co-founder Glenn Simpson, nor did the application reveal that the Clinton campaign had funded Simpson’s work.

According to Simpson’s testimony before the House Intelligence Committee in November, Fusion hired Steele as a contractor to look into Trump’s ties to Russia, where Steele had previously been posted as a British undercover officer.

First passed in 1978, the Foreign Intelligence Surveillance Act was drafted in reaction to the abuses of American surveillance powers targeting anti-Vietnam War protesters and civil rights activists, which were documented by the Church Committee. The law sets up a highly secretive process by which the FBI can obtain surveillance authorities for Americans and others within U.S. borders thought to be working on behalf of a foreign power.

FISA applications represent some of the government’s most closely guarded secrets — they provide the nitty-gritty details of intelligence and national security investigations inside American borders — and the Page controversy represents a remarkable departure from the thick shroud of secrecy that has typically masked the work of the Foreign Intelligence Surveillance Court.

Applications for surveillance powers under FISA go through multiple reviews by senior officials at the FBI and Justice Department, and the application targeting Page appears to have been no exception. Former FBI Director James Comey signed three such applications. McCabe signed another. Former Deputy Attorney General Sally Yates, who was fired in early 2017 over her refusal to defend the Trump administration’s travel ban, also signed off, along with former Acting Attorney General Dana Boente and the current deputy attorney general, Rosenstein.

Boente’s name stands out among those who signed the application. A former U.S. Attorney for the Eastern District of Virginia, a hotbed of national security cases, Boente ran the Justice Department’s national security division in the early days of the Trump administration and has been tapped as the FBI’s new general counsel.

If the memo’s release is indeed targeted at Rosenstein, it’s too soon to know if the ploy was effective. When asked by reporters on Friday whether he still has confidence in his deputy attorney general, Trump snapped: “You figure that one out.”

Elias Groll is a staff writer at Foreign Policy covering cyberspace, its conflicts, and controversies. @eliasgroll

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