Someone in the FBI delegated the investigation of a “National Security” issue to a private contractor running unsupervised “FISA-702 Queries”. What does that say about the FBI management? It is obvious from the Top Secret FISA Court Order document obtained by Judicial Watch on May 23, 2017, that the FISA Court was livid at the FBI, Department of Justice, and the NSA. They broke the rules and the judges were pissed. This is a really, big deal both legally and politically. This is the type of flagrant abuse Senator Rand Paul could use to force a debate on the Patriot Act. All of the good intelligence operations working under the auspices of the Patriot Act are threatened. So why did the FBI take the risk?
If FISA-702 “Queries” do not need approvals from FISC so long as inquiries center around “National Security”, why was it being handled by a private contractor and not FBI personnel?
Lawrence Person at the BattleSwarm blog makes the argument Fusion-GPS was the private contractor. It kind of makes sense, if the contractor was charged with investigating Russian interference in the United States political process. Since they wrote the infamous Trump dossier we can safely conclude that they are familiar with the shadier side of politics. I suspect the FBI chose a private contractor so that they could compartmentalize the information and avoid allegations the FBI was being used to spy on political opponents. I have two problems with this strategy.
- Political interference is an important issue but it is not a “National Security” issue. If political interference was not a “National Security” issue then the unsupervised FISA-702 “Queries” were illegal. I think that was the main point the Top Secret FISA Court Order was trying to make.
- Allowing a private contractor with a background like Fusion-GPS run unsupervised FISA-702 queries is a really bad choice. It looks like a fox in charge of the hen house scenario. When I read the Top Secret FISA Court Order complain that “they had access to raw FISA information that went well beyond what was necessary”, I have to assume that the contractor did something illegal or unethical. It is hard to tell whether the Court is madder at the FBI or the private contractor.
Why did the FBI take the risk?
The FISA court believes that these FISA-702 “Queries” should have been supervised and probably submitted to the FISA court. The FBI probably saw the protection of the Democratic party from Russian meddling as their patriotic duty and considered the legality of their actions a minor issue. More importantly, I think the FBI took the risk because they did not think they would get caught. Even if they were caught, they believed because of their good intentions that “no reasonable prosecutor would bring a case”. The last thing they thought was that this investigation would blow up in their faces. By April 18, 2016, the FBI they knew that their FISA-702 “Queries” irregularities had triggered a full Compliance Audit by the NSA. This would lead NSA to admit a non-compliance issue to the FISA court on October 26, 2016. The Top Secret FISA Court Order leaves no doubt that the non-compliance issue was threatening the reauthorization of the Patriot Act. The “good intentions” of the FBI had transformed a minor “National Security” issue into a major one. The only question left is with everyone’s career at the FBI on the line, would the FBI attempt a cover-up?
