Last week, President Trump ordered the release – “unredaction” – of about 20 pages of the FBI’s June 2017 FISA application for surveillance of Carter Page. Within a few days, the Justice Department and FBI had secured from the White House an agreement to wait on further vetting of the information, a compromise widely interpreted as a walk-back by Trump.
It may be a walk-back. Only time will tell us that. In the meantime, however, it is possible to narrow down what we are likely to see if we do get newly unredacted portions of the fourth and final FISA application on Carter Page.
Andrew McCarthy posted a superb write-up at NRO on 14 September in which he demystified the contents of the FISA applications, clarifying that only a minor portion of each one deals with the foundation for probable cause. Most of each application is boilerplate that deals with administration of FISA operations. McCarthy narrowed down the segment of an application that would contain the variable material we are interested: the particulars of a case and the intelligence and other information that justifies requesting FISA surveillance.
Although I did an initial vetting of the security markings on the FISA applications, I hadn’t looked at the package in that depth before, and am greatly indebted to McCarthy for his rigorous treatment.
He observed, moreover, that the probable-cause section of the initial FISA application – the one he takes us through portion by portion – looks thin. That point comports well with my own impression that the national intelligence foundation apparently laid in the application looks thin.
For a document supposedly about surveillance of a person collaborating with agents of the Russian government, there is almost nothing that appears to carry the classification we would expect if there were substantive intelligence on what the Russians were doing.
I note in passing that this raises the same question McCarthy does about the usual practice of laying good-faith groundwork for a FISA application. He asks, in effect, if probable cause as thin as what he perceives is what FISA judges routinely expect to see.
I would ask the same thing about the national intelligence they are presented. I see two paragraphs in the entire application that appear to be where the FBI would have laid out any specifically indicative national intelligence other than information related to the Steele dossier. The unredacted portions we can see do not read as if the redacted portions contain such specific, smoking-gun intelligence about Russian activities – which ought to be the basis for spying on an American citizen thought to be collaborating with them. Is that level of “taking it for granted” now the norm in FISA applications?
This is a serious question, and one that merits fuller treatment. But in this post, I want to focus on the portions of the fourth FISA application that Trump ordered released. We can figure out quite a bit about them already.
When Trump’s order came out, Fox News reported that about three pages of redacted material would be released from a section entitled “The Russian Government’s Coordinated Efforts to Influence the 2016 U.S. Presidential Election.” That section starts on p. 10 of the June 2017 application (p. 301 in the PDF file; all citations will be given here with the page marked in the FISA application document as primary, and the PDF file page in parentheses).
The section is less than a page in length, so it’s clear that the three pages include portions beyond that section. I assume the additional portions are in the section following it, entitled “Carter Page,” and specifically the section that starts on p. 20 (317) with the paragraph just above the footnote. You’ll see why in a minute.
The other section mentioned by Fox is about 18 pages. Fox describes the pages as relating to information submitted by Christopher Steele. I think that’s a good assessment. But there are important features of the material that communicate more to us than that.
The 18-page section starts on p. 32 of the June 2017 application (323), and it is virtually all redacted at the moment.
It’s not entirely redacted, however. And that’s the key. The original classification markings of the paragraphs, and the FOIA exemption markings annotated in the right-hand margin (exemption marking guide here), are quite informative.
The original classification markings are visible under the XXs over the parenthetic annotations at the start of each paragraph. Most paragraphs in the “justification” section – the intelligence foundation and probable cause, which runs (following McCarthy’s parsing of the first application) from p. 3 (294) to p. 49 (340) – are marked S or S//NF; i.e., Secret or Secret NOFORN (No Foreign Dissemination). A few are marked TS//NF, or Top Secret NOFORN.
As I wrote in July, the TS//NF marking for paragraphs outlining Christopher Steele’s information looks like an attempt to give his paid-consultant, politically-motivated dossier an appearance of probative weight.
So, frankly, we should be wary of every paragraph marked TS//NF that appears in conjunction with a thread that’s obviously based on Steele’s dossier. We should not assume that “top secret” information gained under a national intelligence program, based on legitimately established national security priorities, is actually being hidden under the black bars.
Moreover, it would be bad case construction, for either intelligence or law enforcement, to merely slip key points that establish the foundation of your case into random footnotes, and as addenda to paragraphs that are about something else. That’s why I seriously doubt that the TS//NF paragraphs that already have unredacted portions – and are clearly based on the Steele dossier – contain any significant data points from genuine national intelligence.
Nor is it likely that such intelligence was inserted into TS footnotes (even fully redacted ones) rather than being featured in the main text. Significant, reinforcing intelligence from independent sources stands on its own, and is presented that way because it makes for a more forthright, accountable presentation, and it strengthens your case.
Virtually all of the TS material is found in the portion that starts on p. 17 (308). This section contains a number of paragraphs with TS markings, in the main text and in a series of footnotes. However, only two paragraphs in the whole section appear to possibly offer highly classified national intelligence on Carter Page’s alleged coordination with the Russians that would come from an independent source.
The paragraphs are the one entirely redacted on p. 24 (315) and the shorter one entirely redacted on p. 26 (317). It’s possible that those paragraphs present national intelligence gained independently from either the Steele dossier, or some effort related to probing the Trump campaign team; e.g., Joseph Mifsud’s with George Papadopoulos, or the exertions of Stefan Halper.
If the CIA in fact had highly classified intelligence from inside the Kremlin that Putin himself ordered a cyber campaign against the U.S. election, as asserted when the U.S. intelligence community assessment was published, one of those TS//NF paragraphs is a likely place for a reference it to be inserted in the FISA application.
I wouldn’t expect to see those particular TS//NF paragraphs released, if they do contain such genuine national intelligence.
The lurking FOIA exemption
There’s another interesting marking, however, and it’s at least as informative. It occurs almost entirely in the 18-page section that starts on p. 32 (323). All of those substantive paragraphs (i.e., the longer ones) are marked S//NF. But the FOIA exemptions annotated on the right show that many of them are redacted due in part to exemption “b6-2.” (By my count, out of 22 substantive paragraphs in this 18-page section, 16 of the paragraphs have the FOIA annotation b6-2.)
This is the explanation for FOIA exemption b6:
(b)(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy
The 18-page section was not in the first FISA application filed in October 2016. It appeared in the second application, in January 2017, and then in each of the next two. In the context of the FISA applications, the b6-2 FOIA exemption would relate to information about FBI personnel and possibly human sources involved in the operation, whose personal information might be included in the FISA application because it’s relevant for that purpose. But exposure of it would not serve the purpose of legitimate public transparency under FOIA.
Based on timing and the meaning of the b6 FOIA exemption, this appears to be where the Bruce Ohr debriefs, forwarding information Christopher Steele was supplying to him, were incorporated in the FISA applications. In this case, the b6 exemption would be invoked not to protect truly revealing personal information, but to hide the fact of where the information came from: a government official, receiving it from a confidential source.
The reason for that should be obvious, and it’s a good bet that it doesn’t take much to figure out the official was a DOJ employee, and the source was the same person as Source #1, Christopher Steele.
The FBI didn’t begin debriefing Ohr on his information from Steele until after the first application was filed – and Steele was terminated as an official confidential source. The first Form 302 from an Ohr interview was dated 19 December 2016 (the interview date was 22 November). There were at least four debriefs of Ohr prior to the second FISA application in January 2017. There may have been as many as seven, but I doubt it. The January interview dates were 23, 25, and 27 January, probably too late in the month for a FISA application that was filed in January.
In any case, the point is that the 18-page section that’s entirely redacted wasn’t in the October 2016 application, but was in the three later ones.
The newest material in the fourth FISA application
There’s a little more to it, however. It looks as if the White House chose to unredact portions of the fourth application because of additional material earlier in the text, which appeared only in the fourth application from June 2017.
That material is in completely redacted S//NF paragraphs, and is annotated with the FOIA exemption b6-2. In other words, its character is similar to what’s in the 18-page section. But it’s in a different place.
In the June 2017 application, this material appears for the first time in the section entitled “Page’s Coordination with Russian Government Officials on 2016 U.S. Presidential Election Influence Activities.” That section starts on p. 17 (308), but the new paragraphs don’t begin until p. 20 (311). The first one is just above the footnote in the middle of p. 20, and runs through p. 21.
The other two are at the bottom of p. 26 (317), just above the footnote, and the bottom of p. 27 (318), running to p. 28.
Perhaps there were other FBI operations, besides the Steele-Ohr connection, that yielded information relevant to the FISA applications. If so, they appear to have been a minor factor compared to the Steele-Ohr link.
The possibility cannot be dismissed, however, that the new, fully redacted paragraphs in the June 2017 application may describe information that came to FBI or DOJ personnel from the media.
There has been at least one apparent instance of journalists feeding DOJ/FBI information potentially relevant to a “Russia collusion” narrative. This was the event in April 2017 when a group of reporters met with DOJ and FBI officials at the behest of the DOJ’s Andrew Weissman and provided them with very specific information on a storage locker used by Paul Manafort.
We know about the incident because Manafort’s defense questioned one of the FBI agents involved in it in Manafort’s trial in Virginia. In other words, it came up in discovery. Clearly, it was part of the special counsel’s and FBI’s relevant documentation on the case.
Whether that particular information was recounted as part of the FISA justification or not, the possibility remains that the FBI received information in a similar manner and dressed it up as S//NF data points.
Overall, there is a strong probability that what’s been ordered declassified in the June 2017 FISA application will, as many suspect, show how heavily reliant the applications were on both the Steele dossier and information from Steele that came after he had been terminated as an official source. We can’t know now how much of a role the media will be shown to have played directly.
But we could expect to see references throughout the 18-page section to debriefs of a government official (Bruce Ohr) who had received information from a confidential human source. The source could well be identified deceptively as Source #”x” instead of Source #1 – and would actually be, quite obviously to us now, Christopher Steele.
Releasing the Bruce Ohr 302s alongside the new FISA release, as announced with the order last week, would presumably confirm it for us. Having the internal communications of DOJ and FBI officials released would illuminate the situation further.
That would be embarrassing for the DOJ and FBI. It would not compromise national security.
I appreciate better than most the point that unredacting the FISA application should not, if possible, compromise intelligence sources or methods. And I will reiterate at the end here a point I have made before. This situation with the Obama administration spying on Trump and his campaign is our national security emergency. Intelligence sources can be protected with extraordinary measures, if necessary, and methods rebuilt. The priority now is to tell the American people the truth.