National Security Wiretap System Was Long Plagued by Risk of Errors and Omissions
© Jason Andrew for The New York Times The F.B.I. and the FISA court are working on an overhaul of the national security surveillance application system.
But the mole turned out to instead be one of the F.B.I.’s own, Robert P. Hanssen, and the agents were later exposed for cherry-picking evidence against the innocent C.I.A. official in their surveillance applications.
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That little-known aspect of the notorious Hanssen case illustrates the risk of dysfunction in national security wiretapping, one of counterintelligence agents’ most powerful tools in fighting terrorism and espionage. Now, that defect has surfaced again. The F.B.I.’s flawed applications to monitor a former Trump adviser in the Russia investigation, Carter Page, has prompted a new cycle of scandal revealed in a damning report from the Justice Department’s inspector general.
The problems may be part of a broader pattern in other applications that never receive the same intense scrutiny, according to interviews with more than two dozen current and former F.B.I. agents and Justice Department officials who have worked with national security wiretaps. The system is vulnerable, they said, to lower-level agents suppressing or overlooking evidence that weakens their case when they seek permission to conduct surveillance.
The F.B.I. and the court are already working on an overhaul, and lawmakers have vowed to fix the problems uncovered by the inspector general. But for Congress, agreeing on what needs fixing will be difficult.
But the mole turned out to instead be one of the F.B.I.’s own, Robert P. Hanssen, and the agents were later exposed for cherry-picking evidence against the innocent C.I.A. official in their surveillance applications.
Sign Up For the Morning Briefing Newsletter
That little-known aspect of the notorious Hanssen case illustrates the risk of dysfunction in national security wiretapping, one of counterintelligence agents’ most powerful tools in fighting terrorism and espionage. Now, that defect has surfaced again. The F.B.I.’s flawed applications to monitor a former Trump adviser in the Russia investigation, Carter Page, has prompted a new cycle of scandal revealed in a damning report from the Justice Department’s inspector general.
The problems may be part of a broader pattern in other applications that never receive the same intense scrutiny, according to interviews with more than two dozen current and former F.B.I. agents and Justice Department officials who have worked with national security wiretaps. The system is vulnerable, they said, to lower-level agents suppressing or overlooking evidence that weakens their case when they seek permission to conduct surveillance.
The F.B.I. and the court are already working on an overhaul, and lawmakers have vowed to fix the problems uncovered by the inspector general. But for Congress, agreeing on what needs fixing will be difficult.
© J. Scott Applewhite/Associated Press The F.B.I.’s flawed applications to monitor Carter Page, a former Trump campaign adviser, were detailed in a damning inspector general report.
The F.B.I.’s misuse of its powers under the Foreign Intelligence Surveillance Act, or FISA, has been politicized to a degree it never was in the Hanssen case, where an inspector general’s discovery of the failures attracted little notice.
President Trump and his supporters have long embraced a theory that Mr. Page was a victim of a high-level political conspiracy. The inspector general report did not confirm that narrative, instead finding different — yet still serious — problems.
Some of the president’s closest allies in Congress will influence any potential overhaul efforts, and whether they will act based on that narrative or instead focus on the systemic problems with surveillance is an open question.
On Wednesday, the House Judiciary Committee, led by Representative Jerrold Nadler, Democrat of New York, will mark up a bill that is expected to become a vehicle for Congress to weigh in on broader surveillance issues. He has been negotiating with Representative Adam B. Schiff, Democrat of California, who leads the Intelligence Committee, and with Republicans on his own panel.
The timing is driven by the pending expiration of three investigative powers unrelated to the Page wiretap issues, including the F.B.I.’s ability to collect business records for an espionage or terrorism case. The draft bill would extend those powers while ending legal authority for a defunct system that gave counterterrorism analysts with the National Security Agency access to logs of Americans’ phone calls.
But the bill, according to people familiar with negotiations over the draft, would make other adjustments that dovetail with the inspector general report — like expanding when FISA judges should appoint outsiders to critique the government’s arguments. Lawmakers could also legally require the F.B.I. to be candid with the FISA court and to correct errors.
The F.B.I.’s misuse of its powers under the Foreign Intelligence Surveillance Act, or FISA, has been politicized to a degree it never was in the Hanssen case, where an inspector general’s discovery of the failures attracted little notice.
President Trump and his supporters have long embraced a theory that Mr. Page was a victim of a high-level political conspiracy. The inspector general report did not confirm that narrative, instead finding different — yet still serious — problems.
Some of the president’s closest allies in Congress will influence any potential overhaul efforts, and whether they will act based on that narrative or instead focus on the systemic problems with surveillance is an open question.
On Wednesday, the House Judiciary Committee, led by Representative Jerrold Nadler, Democrat of New York, will mark up a bill that is expected to become a vehicle for Congress to weigh in on broader surveillance issues. He has been negotiating with Representative Adam B. Schiff, Democrat of California, who leads the Intelligence Committee, and with Republicans on his own panel.
The timing is driven by the pending expiration of three investigative powers unrelated to the Page wiretap issues, including the F.B.I.’s ability to collect business records for an espionage or terrorism case. The draft bill would extend those powers while ending legal authority for a defunct system that gave counterterrorism analysts with the National Security Agency access to logs of Americans’ phone calls.
But the bill, according to people familiar with negotiations over the draft, would make other adjustments that dovetail with the inspector general report — like expanding when FISA judges should appoint outsiders to critique the government’s arguments. Lawmakers could also legally require the F.B.I. to be candid with the FISA court and to correct errors.
© Doug Mills/Associated Press F.B.I. agents outside Robert Hanssen’s home in suburban Washington in 2001.
By contrast, Senator Lindsey Graham, Republican of South Carolina and the close Trump ally who leads the Senate Judiciary Committee, is focused on further scrutinizing the Russia investigation. Recently, Mr. Graham requested interviews with 17 law-enforcement officials who were subjects of the inspector general investigation.
“Somebody,” Mr. Graham said in an interview, “has to pay a price.”
But similar flaws with surveillance have surfaced before, underscoring that the problems may be systemic rather than unique to the Page applications, current and former officials said.
At the F.B.I., nobody gets credit for investigations that go nowhere, said Robert S. Litt, a former national security prosecutor and general counsel of the Office of the Director of National Intelligence during the Obama administration. That cultural reality creates the risk that investigators will slant FISA applications to more easily secure a judge’s approval.
The bureaucratic problem is not limited to the FISA process, Mr. Litt said, pointing to a scandal years ago over F.B.I. forensics experts overstating their findings in courtroom testimony.
Still, the extra secrecy surrounding surveillance shuts out potential checks. For example, defense lawyers get to scour criminal wiretap applications for problems, creating an incentive for investigators to be scrupulous. But defense lawyers do not get to see FISA applications.
“Because the court operates in secret, you are lacking one of the levels to prevent a bad actor that otherwise exist,” Mr. Litt said.
In addition, the C.I.A. tightly limits access to information about its sources. That means when evidence from those sources goes into a wiretap application, fewer law enforcement officials know details that might help evaluate their credibility.
In the Russia investigation, the inspector general found, the C.I.A. told the F.B.I. that Mr. Page had talked with the agency about his contacts with Russian officials over the years. Those disclosures could have made his pattern of communication look less suspicious. But the F.B.I. agent who received a C.I.A. memo about the issue did not accurately pass along that information to his colleagues, so no one told the court.
F.B.I. agents are also racing against a clock with FISA wiretaps — good for 90 days — which can also leave them open to confirmation bias, former officials said.
Once a wiretap is in place, Justice Department lawyers charged with seeking its renewal begin nagging F.B.I. agents to identify new facts gleaned from the wiretap that could help justify continuing it. But the lawyers are less insistent on finding facts that might instead undercut their suspicion, former officials said.
By contrast, Senator Lindsey Graham, Republican of South Carolina and the close Trump ally who leads the Senate Judiciary Committee, is focused on further scrutinizing the Russia investigation. Recently, Mr. Graham requested interviews with 17 law-enforcement officials who were subjects of the inspector general investigation.
“Somebody,” Mr. Graham said in an interview, “has to pay a price.”
But similar flaws with surveillance have surfaced before, underscoring that the problems may be systemic rather than unique to the Page applications, current and former officials said.
At the F.B.I., nobody gets credit for investigations that go nowhere, said Robert S. Litt, a former national security prosecutor and general counsel of the Office of the Director of National Intelligence during the Obama administration. That cultural reality creates the risk that investigators will slant FISA applications to more easily secure a judge’s approval.
The bureaucratic problem is not limited to the FISA process, Mr. Litt said, pointing to a scandal years ago over F.B.I. forensics experts overstating their findings in courtroom testimony.
Still, the extra secrecy surrounding surveillance shuts out potential checks. For example, defense lawyers get to scour criminal wiretap applications for problems, creating an incentive for investigators to be scrupulous. But defense lawyers do not get to see FISA applications.
“Because the court operates in secret, you are lacking one of the levels to prevent a bad actor that otherwise exist,” Mr. Litt said.
In addition, the C.I.A. tightly limits access to information about its sources. That means when evidence from those sources goes into a wiretap application, fewer law enforcement officials know details that might help evaluate their credibility.
In the Russia investigation, the inspector general found, the C.I.A. told the F.B.I. that Mr. Page had talked with the agency about his contacts with Russian officials over the years. Those disclosures could have made his pattern of communication look less suspicious. But the F.B.I. agent who received a C.I.A. memo about the issue did not accurately pass along that information to his colleagues, so no one told the court.
F.B.I. agents are also racing against a clock with FISA wiretaps — good for 90 days — which can also leave them open to confirmation bias, former officials said.
Once a wiretap is in place, Justice Department lawyers charged with seeking its renewal begin nagging F.B.I. agents to identify new facts gleaned from the wiretap that could help justify continuing it. But the lawyers are less insistent on finding facts that might instead undercut their suspicion, former officials said.
© Pete Marovich for The New York Times Michael E. Horowitz, the Justice Department’s inspector general, has testified that he found flaws in aspects of the F.B.I.’s surveillance of Mr. Page.
Congress enacted FISA in 1978 to regulate national security wiretapping after scandals from the J. Edgar Hoover era. The law created a special court that today oversees more than 1,000 such applications each year.
But investigators have repeatedly misled judges over the years, documents and interviews show. When such episodes have come to light, the Justice Department has blamed errors by or miscommunication with lower-level officials.
In 2000, the Justice Department confessed to errors about cooperation between criminal and national security investigators in F.B.I. affidavits submitted for 75 applications related to terrorism investigations, according to a declassified FISA court opinion.
After a follow-up review uncovered even more mistakes, the FISA court’s presiding judge, Royce C. Lamberth, barred an F.B.I. agent who had signed some of the affidavits, Michael Resnick, from appearing in front of the court again.
The Justice Department also imposed changes, including strengthening fact-checking for draft applications.
But the damage to the career of Mr. Resnick, who died in 2011, may have been more effective than any policy response, said James A. Baker, who oversaw the FISA process for the Justice Department in that era and was general counsel at the F.B.I. at the time of the Page wiretap.
“The thing that Lamberth did to Resnick put the fear of god in all these people,” Mr. Baker said. “They didn’t want this to happen to them.”
In 2003, an inspector general report about the Russian mole case uncovered an additional bombshell. Examining why the F.B.I. had spent so long investigating the wrong suspect and failed to pursue alternative avenues, it found that agents suppressed “crucial” evidentiary weaknesses as they sought a court order to wiretap the innocent C.I.A. official, Brian J. Kelly.
The inspector general at the time, Glenn A. Fine, said this cherry-picking kept other officials from being able to evaluate the mole investigation and make an earlier course correction.
The Hanssen report called for Justice Department lawyers to more closely oversee F.B.I. agents preparing wiretap applications. Mr. Baker used that recommendation to push through a then-secret further tightening of the rules for preparing FISA applications in 2006, including requiring closer scrutiny of the credibility of confidential sources.
The Page report criticized an F.B.I. agent for ignoring that very procedure as part of half a dozen personal failings that included not passing on the information from the C.I.A., singling the agent out as “primarily responsible for some of the most significant errors and omissions.”
It identified this person only as Case Agent 1. But he is Stephen M. Somma, a counterintelligence investigator in the F.B.I.’s New York field office, people familiar with the Russia investigation said. The F.B.I. declined to comment.
The report did not find evidence that Mr. Somma or his immediate supervisors, whom it also faulted, were politically biased — as opposed to apolitical explanations like incompetence or confirmation bias. (Voter registration records show that a 49-year-old New York man with Mr. Somma’s name and middle initial is a Republican.)
But the inspector general, Michael E. Horowitz, rejected as unsatisfactory such officials’ explanation that they were busy and referred them for disciplinary review. He also referred one official for criminal investigation over a narrower but more egregious act: altering a C.I.A. email he showed to a colleague, during the third renewal of the Page wiretap, in a way that kept the previous failure to disclose the agency’s relationship with Mr. Page from coming to light.
That official, Kevin Clinesmith, a lower-level F.B.I. lawyer who had written text messages expressing opposition to Mr. Trump’s policies and writing “viva le resistance,” has resigned.
The F.B.I. has already begun making changes in response to the inspector general’s findings and subsequent demands from the head of the FISA court, Judge James E. Boasberg, like expanding forms and checklists to force agents to focus on mitigating evidence.
A FISA expert appointed by Judge Boasberg to help him evaluate the bureau’s proposed changes, David Kris, has said they do not go far enough and recommended that a supervisor in the field, not a headquarters official, sign factual affidavits.
Denis Brady, a retired F.B.I. senior agent who worked with FISA applications, went further, suggesting case agents themselves should have to sign the documents.
“That makes you responsible,” Mr. Brady argued. “You bring it down to the field office, where the people doing the work are responsible for it long term. They are not just doing a job to check a box and move up the ladder. That’s the fundamental problem.”
Many civil libertarians favor permitting defense lawyers with security clearances to go through case files to look for problems with FISA applications on the rare occasions a target is later prosecuted.
The inspector general’s office has begun a broader audit of unrelated applications, but for now has said it is focused on looking for factual errors in wiretaps applications targeting Americans — not the harder-to-detect problem of omissions.
Whatever adjustments are made, perfection may remain elusive.
Last month, the F.B.I. promised Judge Boasberg to work harder to avoid errors. When the bureau’s general counsel, Dana Boente, signed the memo, he did not notice that whoever drafted it had misspelled his name.
Kitty Bennett contributed research.
Congress enacted FISA in 1978 to regulate national security wiretapping after scandals from the J. Edgar Hoover era. The law created a special court that today oversees more than 1,000 such applications each year.
But investigators have repeatedly misled judges over the years, documents and interviews show. When such episodes have come to light, the Justice Department has blamed errors by or miscommunication with lower-level officials.
In 2000, the Justice Department confessed to errors about cooperation between criminal and national security investigators in F.B.I. affidavits submitted for 75 applications related to terrorism investigations, according to a declassified FISA court opinion.
After a follow-up review uncovered even more mistakes, the FISA court’s presiding judge, Royce C. Lamberth, barred an F.B.I. agent who had signed some of the affidavits, Michael Resnick, from appearing in front of the court again.
The Justice Department also imposed changes, including strengthening fact-checking for draft applications.
But the damage to the career of Mr. Resnick, who died in 2011, may have been more effective than any policy response, said James A. Baker, who oversaw the FISA process for the Justice Department in that era and was general counsel at the F.B.I. at the time of the Page wiretap.
“The thing that Lamberth did to Resnick put the fear of god in all these people,” Mr. Baker said. “They didn’t want this to happen to them.”
In 2003, an inspector general report about the Russian mole case uncovered an additional bombshell. Examining why the F.B.I. had spent so long investigating the wrong suspect and failed to pursue alternative avenues, it found that agents suppressed “crucial” evidentiary weaknesses as they sought a court order to wiretap the innocent C.I.A. official, Brian J. Kelly.
The inspector general at the time, Glenn A. Fine, said this cherry-picking kept other officials from being able to evaluate the mole investigation and make an earlier course correction.
The Hanssen report called for Justice Department lawyers to more closely oversee F.B.I. agents preparing wiretap applications. Mr. Baker used that recommendation to push through a then-secret further tightening of the rules for preparing FISA applications in 2006, including requiring closer scrutiny of the credibility of confidential sources.
The Page report criticized an F.B.I. agent for ignoring that very procedure as part of half a dozen personal failings that included not passing on the information from the C.I.A., singling the agent out as “primarily responsible for some of the most significant errors and omissions.”
It identified this person only as Case Agent 1. But he is Stephen M. Somma, a counterintelligence investigator in the F.B.I.’s New York field office, people familiar with the Russia investigation said. The F.B.I. declined to comment.
The report did not find evidence that Mr. Somma or his immediate supervisors, whom it also faulted, were politically biased — as opposed to apolitical explanations like incompetence or confirmation bias. (Voter registration records show that a 49-year-old New York man with Mr. Somma’s name and middle initial is a Republican.)
But the inspector general, Michael E. Horowitz, rejected as unsatisfactory such officials’ explanation that they were busy and referred them for disciplinary review. He also referred one official for criminal investigation over a narrower but more egregious act: altering a C.I.A. email he showed to a colleague, during the third renewal of the Page wiretap, in a way that kept the previous failure to disclose the agency’s relationship with Mr. Page from coming to light.
That official, Kevin Clinesmith, a lower-level F.B.I. lawyer who had written text messages expressing opposition to Mr. Trump’s policies and writing “viva le resistance,” has resigned.
The F.B.I. has already begun making changes in response to the inspector general’s findings and subsequent demands from the head of the FISA court, Judge James E. Boasberg, like expanding forms and checklists to force agents to focus on mitigating evidence.
A FISA expert appointed by Judge Boasberg to help him evaluate the bureau’s proposed changes, David Kris, has said they do not go far enough and recommended that a supervisor in the field, not a headquarters official, sign factual affidavits.
Denis Brady, a retired F.B.I. senior agent who worked with FISA applications, went further, suggesting case agents themselves should have to sign the documents.
“That makes you responsible,” Mr. Brady argued. “You bring it down to the field office, where the people doing the work are responsible for it long term. They are not just doing a job to check a box and move up the ladder. That’s the fundamental problem.”
Many civil libertarians favor permitting defense lawyers with security clearances to go through case files to look for problems with FISA applications on the rare occasions a target is later prosecuted.
The inspector general’s office has begun a broader audit of unrelated applications, but for now has said it is focused on looking for factual errors in wiretaps applications targeting Americans — not the harder-to-detect problem of omissions.
Whatever adjustments are made, perfection may remain elusive.
Last month, the F.B.I. promised Judge Boasberg to work harder to avoid errors. When the bureau’s general counsel, Dana Boente, signed the memo, he did not notice that whoever drafted it had misspelled his name.
Kitty Bennett contributed research.
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