Carter Page: Corruption Can Erode Secrecy Authority

Corruption in the executive branch diminishes the ability of federal agencies to preserve secrecy, wrote a then-21 year old named Carter Page in 1993 when he was a midshipman at the U.S. Naval Academy. See Balancing Congressional Needs for Classified Information: A Case Study of the Strategic Defense Initiative by Carter W. Page, May 17, 1993.

More than two and a half decades later, Page’s own experience as an improper target of government surveillance tends to prove his thesis.

A series of FBI applications under the Foreign Intelligence Surveillance Act (FISA) identified Page, a former Trump adviser who had contacts with Russian government officials, as a purported agent of a foreign power. Those FBI applications were declassified and disclosed last year — the first time such documents had ever been made public — following indications that they were based on erroneous claims. Corruption, as Page had written, led to an erosion of longstanding secrecy practices.

Last week, the Department of Justice Inspector General confirmed that the Page surveillance applications were indeed defective.

“We identified at least 17 significant errors or omissions in the Carter Page FISA applications,” wrote Inspector General Michael Horowitz. The omissions included exculpatory information concerning Page that had been improperly altered by an FBI attorney.

The fact that “so many basic and fundamental errors were made” in the Carter Page case has called into question the management of the entire FISA process, Inspector General Horowitz wrote, casting a new spotlight on FISA policy and practice.

“Secrecy is an important element of power,” wrote the young midshipman Page in his 1993 report on congressional access to classified information. Official secrecy practices, he contended, are determined more by political currents than through rational or legal argumentation.

“While the sheer forces of law may be felt to some extent within this struggle, the final outcome is most often one which is based on politics,” he wrote.

“Corruption may decrease an executive’s claim to information,” he argued, particularly since “Congress is much less likely to request secret information from federal agencies which have proven themselves to run in a veracious [i.e. truthful] manner.”

Mr. Page said via email that his 1993 Naval Academy report was “inspired in significant part by prior work with Senator [Daniel Patrick] Moynihan,” whom he had served as an aide.

Two New Judges Appointed to FISA Court

The Chief Justice of the United States has named two new judges to the eleven-member Foreign Intelligence Surveillance Court (FISC), the Court announced last week.

Chief Justice Roberts designated Judge James P. Jones of the Western District of Virginia and Judge Thomas B. Russell of the Western District of Kentucky to serve on the FISC beginning May 19, 2015. Judge Jones and Judge Russell were both nominated to the federal bench by President Bill Clinton. The new FISC appointees will replace Judge Mary A. McLaughlin and Judge James B. Zagel, who will rotate off the Court on May 18. The current membership of the FISA Court is listed here (and here).

The Foreign Intelligence Surveillance Court rules on applications for electronic surveillance and physical search (“and other investigative actions”) under the Foreign Intelligence Surveillance Act. In recent years, the Court has also secretly interpreted intelligence surveillance law in ways that were unexpected and counterintuitive, authorizing the collection of all domestic telephone metadata records.

The evolution of the Foreign Intelligence Surveillance Court was critically examined in a report last month from the Brennan Center for Justice.

Due to changes in law and technology, the FISA Court has “veer[ed] off course, departing from its traditional role of ensuring that the government has sufficient cause to intercept communications or obtain records in particular cases and instead authorizing broad surveillance programs,” wrote Liza Goitein and Faiza Patel of the Brennan Center.

“It is questionable whether the court’s new role comports with Article III of the Constitution, which mandates that courts must adjudicate concrete disputes rather than issuing advisory opinions on abstract questions. The constitutional infirmity is compounded by the fact that the court generally hears only from the government, while the people whose communications are intercepted have no meaningful opportunity to challenge the surveillance, even after the fact,” they wrote.

See What Went Wrong with the FISA Court, Brennan Center, March 18.

(Former Justice Department official Carrie Cordero took issue with some of the authors’ recommendations for changes to the Court on the Lawfare blog last week. Update: The authors replied here.)

The Congressional Research Service issued several reports last year on possible reforms to the FISA Court:

Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview, March 31, 2014

Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, August 26, 2014

Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges, May 5, 2014

Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate, March 21, 2014

Reform of the Foreign Intelligence Surveillance Courts: Disclosure of FISA Opinions, February 24, 2014