The FBI’s internal guidelines for obtaining secret surveillance warrants against Americans say that “only documented and verified information” may be used in warrant applications.
That would seem to pose a problem for the FBI, since the bureau relied on the infamous and unverified Steele dossier to obtain a FISA warrant against former Trump campaign adviser Carter Page.
California Rep. Devin Nunes, the chairman of the House Permanent Select Committee on Intelligence, pointed out the inconsistency between the FBI’s guidelines and its reliance on the dossier last week in a letter to Attorney General Jeff Sessions.
Nunes noted a passage in the FBI’s Domestic Investigations and Operations Guide which states that “the accuracy of information contained within FISA applications is of utmost importance.”
“Only documented and verified information may be used to support FBI applications [FISA] to the court [FISC],” reads an unredacted version of the guide, dated Oct. 15, 2011.
But national security experts and former FBI officials say that verification of each and every fact mentioned in FISA applications is not necessarily required.
“Evidence presented to the court does not have to be rigorously proved or corroborated. But it does have to be plausible and credible — not just rumor or hearsay,” Steven Aftergood, the director of the Project on Government Secrecy for the Federation of American Scientists, told The Daily Caller News Foundation.
The FBI can cite information that the bureau has not fully verified or corroborated as long as the source for the information is made clear and an assessment of the reliability of the information is included in the application. (RELATED: Internal FBI Documents Raise Questions About Use Of Unverified Steele Dossier)
It is up to one of the judges sitting on the Foreign Intelligence Surveillance Court to decide if the evidence meets the standard of probable cause that a surveillance target is acting as an agent of a foreign power.
Ron Hosko, a former FBI assistant director for criminal investigations, said that FBI agents working on FISA cases document all relevant information in a document known as a Woods file, named after former FBI attorney Michael J. Woods, who developed the FISA procedures in April 2001.
“That doesn’t mean that they can’t have other allegations and statements in the FISA application that aren’t yet proven as facts,” Hosko told TheDCNF. “As long as they are characterizing it accurately, they are doing their jobs.” (RELATED: Carter Page FISA Relied On Dossier And News Article Planted By Fusion GPS)
In his letter to Sessions, Nunes suggested that the use of the unverified Steele dossier was a “clear violation of FBI protocols.” The Republican also suggested that U.S. officials may have broken the law by using the dossier in the FISA applications, the first of which was granted against Page on Oct. 21, 2016.
There seems to be little dispute from the either the FBI or Democratic lawmakers that the dossier, including the parts that contain allegations about Page, are unverified.
In his letter, Nunes said that FBI and DOJ officials “have confirmed to the Committee that unverified information from the Steele dossier comprised an essential part of the FISA applications related to Carter Page.”
And in a letter to FBI Director Christopher Wray in January, Iowa Sen. Chuck Grassley and South Carolina Sen. Lindsey Graham said that based on a Senate Committee on the Judiciary review, the Page FISA application “appears to contain no additional information corroborating the dossier allegations against Mr. Page.”
In lieu of corroboration, the FBI appears to have relied heavily on dossier author Christopher Steele’s credibility as a reliable source. The FISA application stated that “based on [Steele’s] previous reporting history with the FBI, whereby [Steele] provided reliable information to the FBI, the FBI believes [Steele’s] reporting to be credible.”
“In short, it appears the FBI relied on admitted uncorroborated information,” reads the Grassley-Graham letter.
So if FBI guidelines explicitly state that facts laid out in FISA applications must be verified, how could the bureau still rely on Steele’s unverified claims in order to obtain the warrant to snoop on Page?
One former FBI special agent says that the relevant fact that had to be verified was that Steele was a source of the information, not that his allegations were fully accurate.
“If you are including source reporting, you must accurately state that it is source reporting and characterize what the source said,” Asha Rangappa, the former agent, said in a recent Twitter exchange with TheDCNF.
“You would typically have a separate source file against which it would be checked. The ‘fact’ is that it is information reported by a source,” she said.
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