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Judicial Watch • FISC Misc 18-03 Judicial Watch Inc’s Motion For Publication of Transcripts 180725

FISC Misc 18-03 Judicial Watch Inc’s Motion For Publication of Transcripts 180725

FISC Misc 18-03 Judicial Watch Inc’s Motion For Publication of Transcripts 180725

Page 1: FISC Misc 18-03 Judicial Watch Inc’s Motion For Publication of Transcripts 180725


Number of Pages:38

Date Created:July 26, 2018

Date Uploaded to the Library:July 26, 2018

Tags:FISC, 180725, Steeles, Surveillance, Publication, Majority, Russian, Intelligence, Steele, Trump, ACLU, Obama, White House, FBI, Supreme Court, DOJ, FOIA

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Docket No. Misc. 18-
Plaintiff Judicial Watch, Inc., counsel and pursuant Rule the Rules
Procedure for the Foreign Intelligence Surveillance Court, respectfully requests this Court make
public all transcripts hearings regarding applications for renewal Foreign Intelligence
Surveillance Act warrants related Carter Page. grounds therefor, Plaintiff states follows:
Earlier this year, the House Permanent Select Committee Intelligence requested this
Court confirm whether transcripts hearings related Carter Page exist and, so, provide
copies such transcripts the Committee. response, the Court informed the Select
Committee that the Department Justice possesses (or can easily obtain) the same responsive
information the Court might possess. Judicial Watch subsequently sent Freedom
Information Act request the Justice Department specifically seeking transcripts any
hearings related Page. The Justice Department responded. Judicial Watchs request
stating that did not identify any records responsive your request. Since the Justice
Department does not have possession any transcripts hearings related Page and because
such transcripts would provide the public with complete and unbiased look the role this
Court, Judicial Watch respectfully requests this Court make public all transcripts hearings
regarding applications for renewal FISA warrants related Page.
Factual Background. January 29, 2018, the Select Committee voted disclose publicly memorandum
containing classified information concerning the electronic surveillance Page, formerly
foreign policy advisor then-candidate Donald Trump. Exhibit President Trump
subsequently declassified the memorandum, and, February 2018, the memorandum was
publicly disclosed. Id.
The memorandum released February 2018, was written the Select Committees
Republican Staff and known the Nunes Memorandum. Id. The memorandum states,
The [Federal Bureau oflnvestigation] and [U.S. Department Justice] obtained one initial
FISA warrant targeting Carter Page and three FISA renewals from this Court. Id. The
memorandum asserts that the FBI and the Justice Department omitted material and relevant
information from the four applications. Id. then goes detail the ways which the
Republican members the Select Committee believe the government misled the Court. Id. February 24, 2018, the Select Committees Democratic members released their own
memorandum about the electronic surveillance Page. Exhibit This memorandum known the Democratic memorandum and directly responds the Nunes Memorandum. asserts,
FBI and DOJ officials did not abuse the FISA process, omit material information, subvert
this vital tool spy the Trump campaign. Id. too then outlines why the Democratic
members the Select Committee believe the government did not mislead the Court. Id. 1-10.
Also, February 2018, the Select Committee requested that the Court confirm the
existence transcripts hearings regarding applications for renewal FISA warrants
related Page. Exhibit addition, the extent any transcripts exist, the Select
Committee requested the Court provide copies them the Select Committee. Id.
response, Presiding Judge Rosemary Collyer, behalf the Court, stated:
The Court appreciates the interest the House Intelligence Committee its
operations and public confidence therein. Before 2018, the Court had never
received request from Congress for documents related any specific FISA
application. Thus, your requests and others have recently received from
Congress present novel and significant questions. The considerations involve
not only prerogatives the Legislative Branch, but also interests the Executive
Branch, including its responsibility for national security and its need maintain
the integrity any ongoing law enforcement investigations.
While this analysis underway, you may note that the Department Justice
possesses (or can easily obtain) the same responsive information the Court might
possess, and because separation powers considerations, better positioned
than the Court respond quickly. (We have previously made clear the
Department, both fonnally and informally, that not object any decision the Executive Branch convey Congress any such information.)
Judicial Watch not-for-profit, educational organization that seeks promote
transparency, accountability, and integrity government and fidelity the rule law.
integral part Judicial Watchs mission educating the public about the operations and
activities the government and government officials. this end, Judicial Watch undertakes
investigations the federal government and federal officials making extensive use FOIA,
among other investigative tools. Judicial Watch subsequently analyzes all records receives and
disseminates its findings the public. relevance here, Judicial Watch investigating the governments surveillance
American citizens relates the 2016 Presidential Election. part this investigation,
Judicial Watch submitted FOIA request the FBI seeking copies all FISA warrant
applications, application renewals, and this Courts orders related Page. Judicial Watch
subsequently filed lawsuit over this request, Judicial Watch, Inc. U.S. Department ofJustice,
Case No. 18-cv-00245-CRC (D.D.C.), and received 412 pages responsive records, albeit
heavily redacted, July 20, 2018. Exhibit addition, Judicial Watch followed the Courts advice and sought the transcripts
hearings regarding applications for renewal FISA warrants related Page submitting
FOIA request the Justice Department. response, the Justice Department stated that
conducted search but did not identify any records responsive [Judicial Watch request.
Exhibit Eat date, transcripts hearings regarding applications for renewal ofFISA
warrants related Page have been released the public.
Standing. have standing under Article III the Constitution, Judicial Watch must demonstrate
three familiar requirements: (1) injury-in-fact; (2) causal connection between the asserted injuryin-fact and the challenged action the defendant; and (3) that the injury will redressed
favorable decision. See Lujan Defenders Wildlife, 504 U.S. 555, 560-561 (1992). Prongs
two and three are clearly satisfied. See Orders ofthis Court Interpreting Sec. 215 ofthe
Patriot Act, No. MISC. 13-02, 2013 U.S. Dist. LEXIS 143060 (Foreign Intel. Surv. Ct.
Sept. 13, 2013). The transcripts are not currently available Judicial Watch the public, and, the Court were release the transcripts, Judicial Watch would obtain the transcripts, analyze
them, and make them available the public. Id. Judicial Watch also satisfies prong one.
Because the transcripts are not available Judicial Watch, Judicial Watchs active participation educating the public about the operations and activities the government and government
officials harmed. Id. 14.
Due the size the production, copy the production located the FBI website
This court possesses inherent powers, including supervisory power over its own records
and files. Nixon Warner Commc ns, Inc., 435 U.S. 589, 598 (1978); accord Chambers
NASCO, Inc., 501 U.S. 32, (1991). FISA grants this Court power establish such rules and
procedures, and take such actions, are reasonably necessary administer their
responsibilities under the statute. U.S.C. 1803(g)(l). Pursuant that authority, this Court
has issued Rules Procedure permitting FISC judges direct the publication FISC orders,
opinions, and related record[s] sua sponte motion party. FISC Rule
Procedure 62.
Pursuant FISC Rule Procedure 62(a), the Judge who authored order, opinion,
other decision may sua sponte motion party request that published. FISC Rule Procedure 62(a)-(b). Similarly, [i]t would serve discernible purpose for the Court ... precluded from considering reasoned arguments favor publication certain opinions. Orders ofthis Court, No. MISC. 13-02, 2013 U.S. Dist. LEXIS 143060 *18. This
especially true when the government has previously declassified and released significant
information about the context and legal underpinnings order and there substantial
public and legislative interest how the relevant statutory provision has been interpreted and
applied. 19. Orders ofthis Court Interpreting Sec. 215 ofthe Patriot Act, the ACLU and
several others moved obtain the release FISC opinions regarding Section 215 the U.S.
Patriot Act. No. MISC 13-02, 2013 U.S. Dist. LEXIS 143060 *7-8. The Court ordered the
government conduct declassification review FISC opinions related Section 215 with the
intent release these opinions. 26-28. This decision came the wake
whistle blowers disclosure mass government surveillance, disclosure resulting widespread
public backlash and intensive public scrutiny the merits this Court. Releasing those records
quelled some the confusion regarding FISCs policies helped cultivate informed
Here, two differing summaries the process are the public sphere. addition, the
FBI has released 412 pages heavily redacted information, which raises more questions than
answers. Therefore, the release the hearing transcripts regarding applications for renewal FISA warrants related Page would provide the public with complete and unbiased look
the role this Court. Such publication would contribute infonned debate and serve
assure citizens the integrity this Courts proceedings. Id. 26. addition, like Orders this Court, the public already has substantial
knowledge about the existence the FISA warrants Page.2 that case, the surrounding
circumstances justify releasing the requested transcripts that the public has the full picture
the role the Court the FISA warrant process. The publication the transcripts will also
correct any inaccuracies contained the Nunes and Democratic memoranda well answer
questions raised the heavily redacted records produced the FBI.
Importantly, the Court does not have concerned that the release the transcripts
will publicly reveal classified information. Orders ofthis Court, No. MISC 13-02, 2013
U.S. Dist. LEXIS 143060 *26-27. The President has declassified the Congressional
memoranda, and the FBI has released FISA warrant applications, application renewals, and this
The publics substantial knowledge comes not only from the release the two
Congressional memoranda but also from the 412 pages produced the FBI Judicial Watch
response its FOIA litigation.
Courts orders related Page. Therefore, most- not all- the information contained the
transcripts likely has been declassified.
For the foregoing reasons, Judicial Watch respectfully requests this Court make public all
transcripts hearings regarding applications for renewal ofFISA warrants related Page.
Dated: July 24, 2018
425 Third Street SW, Suite 800
Washington, 20024
Phone: (202) 646-5172
Counsel for Movant
February 2018
The Honorable Devin Nunes
Chairman, House Permanent Select Committee Intelligence
United States Capitol
Washington, 20515
Dear Mr. Chairman: January 29, 2018, the House Permanent Select Committee Intelligence (hereinafter the
Committee) voted disclose publicly memorandum containing classified information
provided the Committee connection with its oversight activities (the Memorandum,
which attached this letter). provided clause 1l(g) Rule the House
Representatives, the Committee has forwarded this Memorandum the President based its
determination that the release the Memorandum would serve the public interest.
The Constitution vests the President with the authority protect national security secrets from
disclosure. the Supreme Court has recognized, the Presidents responsibility classify,
declassify, and control access information bearing our intelligence sources and methods
and national defense. See, e.g., Dep ofNavy Egan, 484 U.S. 518, 527 (1988). order
facilitate appropriate congressional oversight, the Executive Branch may entrust classified
information the appropriate committees Congress, has done connection with the
Committees oversight activities here. The Executive Branch does the assumption that the
Committee will responsibly protect such classified information, consistent with the laws the
United States.
The Committee has now detennined that the release the Memorandum would appropriate.
The Executive Branch, across Administrations both parties, has worked accommodate
congressional requests declassify specific materials the public interest. However, public
release classified information unilateral action the Legislative Branch extremely rare
and raises significant separation powers concerns. Accordingly, the Committees request
release the Memorandum interpreted request for declassification pursuant the
Presidents authority.
The President understands that the protection our national security represents his highest
obligation. Accordingly, has directed lawyers and national security staff assess the
e.g., Rept. 114-8 (Administration Barack Obama) (On April 2014 ... the Committee agreed
send the revised Findings and Conclusions, and the updated Executive Summary the Committee Study, the
President for declassification and public release.); Rept. 107-792 (Administration George Bush) (similar);
E.O. 12812 (Administration George Bush) (noting Senate resolution requesting that President provide for
declassification certain information via Executive Order). See,
declassification request, consistent with established standards governing the handling
classified information, including those under Section 3.l(d) Executive Order 13526. Those
standards permit declassification when the public interest disclosure outweighs any need
protect the information. The White House review process also included input from the Office
the Director National Intelligence and the Department Justice. Consistent with this review
and these standards, the President has determined that declassification the Memorandum
Based this assessment and light the significant public interest the memorandum, the
President has authorized the declassification the Memorandum. clear, the
Memorandum reflects the judgments its congressional authors. The President understands
that oversight concerning matters related the Memorandum may continuing. Though the
circumstances leading the declassification through this process are extraordinary, the
Executive Branch stands ready work with Congress accommodate oversight requests
consistent with applicable standards and processes, including the need protect intelligence
sources and methods.
Donald McGahn
Counsel the President
cc: The Honorable Paul Ryan
Speaker the House Representatives
The Honorable Adam Schiff
Ranking Member, House Permanent Select Committee Intelligence
UNCLASSIFJE.D 81!18uu rmm
January 18, 2018
Declassified order the President
February 2018
HPSCI Majority Members
HPSCI Majority Staff
Foreign Intelligence Surveillance Act Abuses the Department Justice and the
Federal Bureau Investigation
This memorandum provides Members update significant facts relating the
Committees ongoing investigation into the Department Justice (DOJ) and Federal Bureau
Investigation (FBI) and their use the Foreign Intelligence Surveillance Act (FISA) during the
2016 presidential election cycle. Our findings, which are detailed belo:w, raise concerps with
the legitimacy and legality certain DOJ and FBI interactions with the Foreign Intelligence
Surveillarice Court (FISC), and represent troubling breakdown legal processes established protect the American people from abuses related the FISA process.
Investigation Uodate October 21, 2016, DOJ and FBI sought and received FISA probable cause order
(not under Title VII) authorizing electronic surveillance Carter Page from the FISC. Page
U.S. citizen who served volunteer advisor the Trump presidential campaign. Consistent
with requirements under FISA, the application had first certified the Director Deputy
Director the FBI. then required the approval th~ Attorney General, Deputy Attorney
General (DAG), the S.enate-confirm.ed Assistant Attorney General for the National Security
The FBI and DOJ obtained one initial FISA warrarit targeting Carter Page and three FISA
renewals from the FISC. required statute (50 U.S.C. .1805(d)(l)), FISA order
American citizen must renewed the FISC every days and each renewal requires
separate findllig probable cause. Then-Dire~tor James Camey signed three FISA applications question behalf the FBI, and Deputy Director Andrew McCabe signed one. Then-DAG
Sally Yates, then-Acting DAG Dana Boente, and DAG Rod Rosenstein each signed one more
FISA applications behalf DOJ.
Due the sensitive nature foreign intelligence activity, FISA submissions (including
renewals) before the FISC are classified. such, the publics confidence the integrity the
FISA process depends the courts ability hold the government the highest standardparticularly relates surveillance AmeJ;ican citizens. However, the FISCs rigor
protecting the rights Am.ericans, which reiriforced 90-day renewals surveillance
orders, necess.arily dependent the governments production the court all material and
relevant facts. This should include information potentially favorable the target the PISA
T8F 0J!i!Mff:;1f8F8Rif
application that known the government. the case Carter Page, the gove~ent had
least four independent opportunities before the FISC accurately proVide accounting the
relevant facts. However, our findings indicate that, described below, material and relevant
information was omitted. The dossier~ compiled Christopher Steele (Steele dossier) behalf the
Democratic Natfonal Committee (DNC) and the }#llary Clinton campaign formed
essential part the Carter Page FISA application. Steele was longtime FBI source who
was paid over $160,000 the DNC and Clinton campaign, via the law.firm Perkins Coie
and research firm Fusion GPS, obtain derogatory information Donald Trumps ties Russia. Neither the initial application Octber 2016, nor any the renewals, disclose
reference the role the DNC, Clinton campaign, or. any party/campaign funding
Steeles efforts, even though the political origins the Steele dossier were then
known senior DOJ and FBI officials. The initial FISA application notes Steele was working for named U.S. person, but
does not name Fusion GPS and principal Glenn Simpson, who was paid U.S. law
firm (Perkins Coie) representing the DNC (even though was known DOJ the.
time that political actors were involved with the Ste~le dossier). The application does
not mention Steele was ultimately working behalf of:-and paid by-the DNC and
Clinton campaign, that the FBI had separately authorized payment Steele for the
sayie information. The Carter Page FISA application also cited extensively September 23, 2016, Yahoo
News article by.Michael Isilmff, which focuses Pages July 2016 trip Moscow.
This article does not corroborate the Steele dossier because derived from information
leaked Steele himself Yahoo News. The Page PISA application incorrectly assesses
that Steele did not directly provide information Yahoo News. Steele has admitted
British court filings that met with Yahoo NewS-and several other outlets-in
September 2016 the direction Fusion OPS. Perkins Coie was aware Steeles
initial media contacts because they hosted least one meeting WashinW:on D.C.
2016 with Steele and Fusion GPS where this matter was discussed. Steele was suspended and then terminated FBI source for what the FBI defines the most serious violations-an unauthorized disclosure the media his
relationship with the FBI October 30, 2016, Mother Jones article David
Com. Steele should have been terminated for his previous Wldisclosed contacts with
Yahoo and other outlets September-before tb:e Page application was submitted
161 SLClllh461 Gld4
POP SECIG! /li46i
the FISC October-but Steele improperly concealed from and lied the FBI about
those contacts. Steeles numerous encounters with the media violated the cardinal rule source
handling-maintaining confidentiality-and demonstrated that Steele had become
less than reliable source for the FBI. Before and after Steele was terminated source, maintained contact with DOJ via
then-Associate Deputy Attorney General Bruce Ohr, senior DOJ official who worked
closely with Deputy Attorneys General Yates and later Rosenstein. Shortly after the
election, the FBI began interviewing Ohr, documenting his communications with Steele.
For example, September 2016, Steele admitted Ohr his feelings against thencandidate Trump when Steele said was desperate that Donald Trump not get
elected and was ~assionate about him not being president. This clear evidence
Steeles bias was recorded Ohr the time and subsequently official FBI files-but
not reflected any the Page FISA applications. During this same time period, Ohrs wife was employed Fusion GPS assist
the cultivation opposition research ~rump. Ohr later provided the FBI with all his wifes opposition research, paid for the DNC and Clinton campaign via
Fusion GPS. The Ohrs relationship with Steele and Fusion GPS was inexplicably
concealed from the FISC. According the head the FBIs counterintelligence division, Assistant Director Bill
Priestap, corroboration the Steele dossier was its infancy the time the initial independent unit within FBI assessed Steeles reporting only minimally
corroborated. Yet, early January 2017, Director Camey briefed President-elect Trump summary the Steele dossier, even though was-according his June 2017
testimony-salacious and unverified. While the FISA application relied Steeles
past record credible reporting other unrelated matters, ignored concealed his
anti-Trump :financial and ideological motivations. Furthermore, Deputy Director
McCabe testified before the Committee Dece~ber 2017 that surveillance warrant
would have been sought from the FISC without the Steele dossier information.
tor omoM :nrnro
l.el JE@ft!! HHGi The Page FISA application also mentio~ infonnation regarding fellow Trump campaign
advisor George Pa~adopoulos, but there evidence any cooperation conspiracy
between Page and Papadopoulos. The Papadopoulos information triggered the opeztlng FBI counterintelligence investigation late July 2016 FBI agent Pete Strzok.
Strzok was reassigned the Special Counsels Office FBI Human Resources for
improper text messages with his mistress, FBI Attorney Lisa Page (no known relation
Carter Page), where they both demonstrated clear bias against Trump and favor
Clinton, whom Strzok had also investigated. The Strzok/Lisa Page texts also reflect
~xtensive discussions about the investigation, orchestrating leaks the media, and
include meeting with Deputy Director McCabe discuss insurance policy against
President Trumps election.
IP81J181!18Mlif1tOJ fact informed the Court accurately that Steele was hired
SOI OlitWTUD!Oii?Dtl
politically-motivated U.S. persons and entities and that his research appeared intended
for use discredit Trumps cumpaign.
DOJ explained the FBls reasonable basis for finding Steele credible: The applications
correctly described Steele The applications also reviewed Steeles multi-year
history credible reporting Russia and other matters, including information DOJ used
criminal proceedings. Senior FBf and DOJ omcials have repeatedly affirmed the
Committee the reliability and credibility Steeles reporting, assessment also reflected
the FBls underlying source documents. The FBI has undertaken rigorous process vet
allegations from Steele reporting, including with regard Page.
The FBl properly notified the FISC ufter terminated Steele source for mnking
unauthori7.ed disclosures the media. The Majority cites evidence that the FBI, prior filing its initial October 21, 2016 application, actually knew should have known any
allegedly inappropriate media contacts Steele. Nor they cite evidence that Steele
disclosed Yahoo! details included the FJSA warrant, since the British Court filings
which they refer not address what Steele may have said Yahoo.I.
DOJ informed the Court its renewals that the FBI acted promptly terminate Steele after
learning from him (after DOJ filed the first warrant application) that had discussed his
work with media outlet lntc October. The January renewal further explained the
Court that Steele told the FBI that made his unauthorized media disclosure because his
frnstration Director Corneys public announcement shortly before the election that the Fill
reopened its investigation into candidate Clintons email use.
J)OJ never paid Steele for the dossier: The Majority asserts that the FBI had separately
authorized payment Steele for his research Trump but neglects mention that
payment was cancelled and never made. the FBl records and Committee testimony
confirms, although the FBI initially considered compensation Steele ultimntely never received payment from the FBI for
any dossicr-relnted information.27 DOJ accurately informed the Court that Steele had
been FBl confidential human source since for which was compensated the FBI payment for previously-shared information value
unrelated the FBls Russia investigation.
Additional Omissioos, Errors, and Distortions the Majoritys Memorandum
DOJ appropriately provided the Court with comprehensive explanation Russias
election lnterforencc, including evidence that Russia courted another Trump campaign
advisor, Papadopoulos, and that Russian 11gents previewed their hack and
dissemination stolen emails. claiming that there evidence any cooperation
conspiracy between Page and Papadopoulos, the Majority misstates the reason why DOJ
specifically explained Russia courting Papadopoulos. Papadopouloss interaction with
Russian agents, coupled with real-time evidence Russian election interference, provided
the Court with broader context which evaluate Russias clandestine activities and HUiltllll UtlfUi8Ma evidence ofa separate conspiracy between him and DOJ would have been negligent omitting vital information
about Papadopoulos and Russias concerted efforts. its Court filings, DOJ made proper use news coverage. The Majority falsely claims
that the FISA teriols relied heovily September 23, 2016 Yahoo! News article
Michael Isikoff and that this article does not corroborate the Steele Dossier hecause
derivt:d from infonnalion leaked Steele himself. fact, OOJ referenced !sikoffs
article, alongside another article the Majority fai mention, not provide separate
corroboration for Steeles reporting, but instead inform the Court Pages public denial his suspected meetings Mosco)N, which Page also echoed September 25, 2016 letter FBI Director Corney.
The Majoritys reference uce Ohr misleading. Majority mischaracterizes
Bruce Ohrs role, overstates the sign ificance his interactions with Steele, and misleads
about the timeframe Ohrs communication with the FRI. late November 16, Ohr
infonned the his prior professional relationship with Steele and information that
Steele shared with him (including Steeles concern about Trump being compromised
Russia). nlso described his wifes contract work h.ith Fusion GPS, the !irm that hired
Steele separately. This occurred weeks afier the election and more than month !{fier the
Court approved the init ial FIS application. The Majority describes Bruce Ohr senior
OOJ official who worked closely with the Deputy Attorney General, Yates and later
Rosenstein, order imply that Ohr was somehow involved lhc FISA process, but there indication this the case.
Bruce Ohr well~respccted career professional whose portfolio drugs and organized
crime, nol counterintelligence. There evidence that would have known about lhe
irrelevant. determining the veracity Steeles reporting. the time Ohr briefs with the
.FBt, had lready terminated Steele source and was independently corroborating
Steeles reporting about Pages acti vities. Bruce Ohr took the initiative info the FBI
what knew, the Majority does him grave disservice suggesting part some
malign conspiracy.
Finally, Peter Strzok and Lisa Pages text messages irrelevant the l~ISA
application. The Majority gratuitously includes reforencc Strzok and Page the end
their memorandum, effort ply tha.t political bias fected the investigation
and DOJs FIS! applications. fact, neither Strzok nor Page s~rved affiants the
applications, which were the product extensive and senior DOJ and FBI review.
demoniz ing both career professionals, the Majority acc uses them orchestrating leaks
the meJiS