What a Properly Scoped FISA Abuse Inspector General Report Would Look Like

In this piece on the Jim Comey IG Report, I showed that Michael Horowitz’s department received evidence of two violations of DOJ rules. His office first received seven memos that documented that DOJ’s protocols to ensure the integrity of investigations had collapsed under Donald Trump’s efforts to influence investigations. And then, at some later time, his office learned that Comey had (improperly, according to the report) retained those memos even after being fired and that FBI had classified six words in the memos he retained retroactively.

Horowitz’s office has completed an investigation into an act that otherwise might be punished by termination that already happened. But there is zero evidence that Horowitz has conducted an investigation into the subject of the whistleblower complaint, the breakdown of DOJ’s protections against corruption.

In April 2018, Horowitz released a report (which had been hastily completed in February) detailing that Andrew McCabe had been behind a reactive media release during the 2016 election. But his office has not yet released its conclusions regarding the rampant leaks that McCabe was responding to. In other words, Horowitz seems to have once again released a report on a problem that — however urgent or not — has already been remedied, but not released a report on ongoing harm.

Horowitz is reportedly preparing to release a report on what the frothy right calls “FISA abuse.” but given the content of a Lindsey Graham letter calling for declassification of its underlying materials, it’s seems likely that that report, too, is scoped narrowly, focusing just on Carter Page (and any other Trump officials targeted under FISA). There’s no request for backup materials on the other investigation predicated off of hostile opposition research, the investigation into the Clinton Foundation.

I have long said that if Republicans think the FISA order into Carter Page was abusive, then they’re being remiss in their oversight of FISA generally, because whatever abuse happened with Page happens, in far more egregious fashion, on the FISA applications of other people targeted and prosecuted with them.

If Michael Horowitz is concerned that the information from paid informants is not properly vetted before being used as the basis for a FISA application, they would be better to focus on any number of terrorism defendants. Adel Daoud appears to have been targeted under FISA based off a referral — probably, like Christopher Steele, a paid consultant — claiming he said something in a forum that the government later stopped claiming; Daoud remains in prison right now after having been set up in an FBI sting.

If Michael Horowitz is concerned that the FBI is misusing press reports in FISA applications, they would be better to focus on the case against Keith Gartenlaub. The FBI based its FISA applications partly off a Wired article that was totally unrelated to anything Gartenlaub was involved with. Gartenlaub will forever be branded as a sex criminal because, after finding no evidence that he was a spy, the government found 10 year old child porn they had no evidence he had ever accessed.

If Michael Horowitz is concerned that information underlying a FISA application included errors — such as that there are no Russian consulates in Miami — he should probably review how Xiaoxing Xi got targeted under FISA because the FBI didn’t understand what normal scholarship about semiconductors involves. While DOJ dropped its prosecution of Xi once it became clear how badly they had screwed up, he was charged and arrested.

And if Michael Horowitz is concerned about FISA abuse, then he should examine why zero defendants have ever gotten able to review their applications, even though that was the intent of Congress. Both Daoud and Gartenlaub should have been able to review their files, but both were denied at the appellate level.

The point being, the eventual report on “FISA abuse” will not be about FISA abuse. It will, once again, be about the President’s grievances. It will, at least according to public reporting, not treat far more significant problems, including cases where the injury against the targets was far greater than it was for Carter Page.

I don’t believe Michael Horowitz believes he is serving as an instrument of the President’s grievances. But by scoping his work to include only the evidence that stems from the President’s grievances and leaving out matters that involve ongoing harm, that’s what he is doing.

Note: I have or had a legal relationship with attorneys involved in these cases, though not when writing the underlying posts.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

FBI Imagines Using Assessments to Recruit US Engineers for Insight onto Spying in Semiconductor Industry

For something else, I’m reviewing the section of the FBI Domestic Investigations and Operations Guide on assessments made available in unredacted form to the Intercept. Of particular interest are the scenarios the DIOG uses to explain whether an Agent would or could use an assessment to collect information without opening a preliminary investigation. One way the FBI uses assessments is to identify potential informants. As one of the scenarios for when it might do so, it uses the example of trying to find out about a particular country X’s targeting of engineers and high tech workers involved in the production of semiconductor chips. For an engineer who travels frequently to country X, the FBI might either target him, or try to recruit him. (see page 117)

This is important for two reasons. First, the FBI is permitted to search FBI’s own databases to conduct this assessment. That would include information collected via Section 702. So when people talk about the risks of back door searches, it could mean a completely innocent engineer getting targeted for recruitment as an informant.

The other reason this is important is because it is precisely what appears to have happened with Professor Xiaoxing Xi, who was falsely accused of sharing semiconductor technology with China. After Xi and his attorney Peter Zeidenberg explained to the FBI that they had badly misunderstood the technology they were looking at, the case against Xi was dismissed.

In fact, Xi claims in a lawsuit against the government that the emails on which was the case was built were improperly searched using Section 702 or EO 12333.

On information and belief, both before and after obtaining the FISA orders, defendant Haugen and/or Doe(s) caused the interception of Professor Xi’s communications, including his emails, text messages, and/or phone calls, without obtaining a warrant from any court. In conducting this surveillance, the defendants may have relied on the purported authority of Section 702 of FISA or Executive Order 12333. Although neither Section 702 nor Executive Order 12333 permits the government to “target” Americans directly, the government nonetheless relies on these authorities to obtain without a warrant the communications of Americans who are in contact with individuals abroad, as Professor Xi was with his family and in the course of his scientific and academic work.

On information and belief, defendant Haugen and/or defendant Does searched law enforcement databases for communications of Professor Xi that the government had intercepted without a warrant, including his private communications intercepted under Section 702 of FISA and Executive Order 12333, and examined, retained, and/or used such communications.


The actions of defendants Haugen and/or Doe(s) in searching law enforcement databases for, examining, retaining, and using Professor Xi’s communications, including his emails, text messages, and/or phone calls, that were obtained without a warrant, and without notice to Professor Xi, violated Professor Xi’s clearly established constitutional rights against unlawful search and seizure and his right to privacy under the Fourth Amendment.

Given how closely this scenario matches his own case, I’d say the chances his emails were first identified via a back door search are quite high. Note, too, that Temple University, where he works, has its email provided by Google, meaning these emails might be available on via PRISM.

Of additional interest, the one description of sensitive potential Confidential Human Sources that the officially released DIOG redacts which is revealed in the Intercept copy is academic personnel. (see page 112)

So they will recruit professors like Professor Xi as informants — they would just require special approval to do so.