The four-page order from Judge Rosemary Collyer followed a harshly critical Justice Department inspector general report that said the FBI had withheld key information when it submitted four applications in 2016 and 2017 to monitor the communications of Carter Page.
The order is a rare public statement from the Foreign Intelligence Surveillance Court, which operates mostly in secret as it receives applications from the FBI and Justice Department to eavesdrop on American soil on people they suspect of being agents of a foreign power. The directive could prompt fundamental changes in the FBI's use of a powerful surveillance tool that supporters see as vital to thwarting terrorism and espionage but that detractors say is vulnerable to abuse.
“The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable," Collyer wrote.
Without complete and accurate information, the judge added, the court “cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis."
She directed the FBI to report by Jan. 10 on what it has done and what it plans to do to ensure the accuracy of information it submits in its wiretap applications. In a statement, the FBI called the surveillance warrants an “indispensable tool in national security investigations" and said it was committed to working with the Justice Department and the court “to ensure the accuracy and completeness of the FISA process."
The government's surveillance authorities have long been scrutinized by Democrats and civil libertarians who object to the court's highly secretive nature and view it as a virtual rubber-stamp for FBI requests, the overwhelming majority of which are approved. Most surveillance warrants do not result in criminal prosecutions, and even when they do, there is no automatic right for a defendant to see the underlying application.
In the last week, Republicans who have previously been supportive of the Justice Department's robust surveillance powers have called for change and seized on allegations that a campaign aide to Donald Trump was treated unfairly.
Republican Sen. Lindsey Graham of South Carolina, a Trump ally and the chairman of the Senate Judiciary Committee, said he was pleased to see the court “condemn" the FBI. He said he would work with Republicans and Democrats “to make changes to better protect civil liberties while maintaining our ability to monitor foreign surveillance directed against our economic and national security interests."
The FBI relied in large part for its surveillance applications on opposition research compiled by Christopher Steele, a former British intelligence operative whose investigations into ties between Russia and Trump were funded by Democrats.
Inspector General Michael Horowitz said his office had identified at least 17 significant errors and omissions during the application process, including the altering of an email by an FBI lawyer. The inspector general said that as the FBI sought to renew those warrants, it withheld from the Justice Department — and, in turn, the surveillance court — key information that the watchdog said cut against the premise that Page was a Russian asset. Page has denied all wrongdoing and was never accused of a crime.
For instance, Horowitz said the FBI omitted from its application questions about the reliability of Steele's reporting, and omitted the fact that Page had a prior relationship with another government agency.
FBI Director Christopher Wray told The Associated Press in an interview last week that the report had identified problems “unacceptable and unrepresentative of who we are as an institution." He said the bureau was taking more than 40 corrective actions to deal with the issues.
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