Just the facts: FISA verificationA note on FISA “verification”

By Julian Sanchez

Published 20 December 2018

Last week, former FBI Director James Comey testified before the House Judiciary and Oversight Committees in closed session. When, at Comey’s request, a transcript was released shortly thereafter, mainstream news outlets mostly yawned, but numerous pro-Trump outlets had a different reaction, seizing on Comey’s acknowledgement that the now-notorious “Steele Dossier” was still in the process of being vetted when Comey left in the Bureau. Julian Sanchez writes in Just Security that this provided those who want to protect Trump from the Muller investigation an opportunity to revive a complaint about purported improprieties in the application for a FISA order to intercept the communications of erstwhile Trump campaign advisor Carter Page: The information provided in FISA applications must be “verified” before it is submitted to the Foreign Intelligence Surveillance Court, and here we have (the objection runs) an apparent admission that the information was not verified! But if the objection to using the material in the Steel Dossier is procedural—an argument that the FBI violated its own requirements—then the complaint is simply wrong, and based on a basic confusion about what FISA “verification” means.

Last week, former FBI Director James Comey testified before the House Judiciary and Oversight Committees in closed session. When, at Comey’s request, a transcript was released shortly thereafter, mainstream news outlets mostly yawned, finding relatively little new or noteworthy. But numerous Trumpophile outlets had a different reaction, seizing on Comey’s acknowledgement that the now-notorious “Steele Dossier” was still in the process of being vetted when Comey left in the Bureau.

Julian Sanchez writes in Just Security that this provided those who want to protect Trump from the Muller investigation an opportunity to revive a complaint about purported improprieties in the application for a FISA order to intercept the communications of erstwhile Trump campaign advisor Carter Page: The information provided in FISA applications must be “verified” before it is submitted to the Foreign Intelligence Surveillance Court, and here we have (the objection runs) an apparent admission that the information was not verified!

Sanchez continues:

If we construe this as a complaint that Page was monitored on thinner evidence than should be required for protracted surveillance of an American citizen, that complaint may well have merit, though we would need to know the full contents of the application—much of which remains redacted—to say with any confidence. But if the objection is procedural—an argument that the FBI violated its own requirements—then the complaint is simply wrong, and based on a basic confusion about what FISA “verification” means.

First, there is a tendency to conflate statements that Comey and other public officials have made about the Steele Dossier as a whole with claims about the specific reporting relied on in the Page FISA application. Comey, for example, had previously referred to part of the Dossier as “salacious and unverified”—referring to a lurid account of a supposed Trump tryst with prostitutes in Moscow. Whether the FBI developed other evidence supporting that claim is not particularly relevant to whether they had information that led them to give more credence to the specific memorandum concerning Carter Page’s trip to Russia. So just as a general matter, when you see broad claims about the “Steele Dossier,” it’s worth taking