Intelligence

“Probability of a Possibility”: William C. Banks Explains the FISA Warrant Process to NBC News

Why Team Trump is wrong about Carter Page, the dossier and that secret warrant

(NBC News | July 23, 2018) Mueller’s Russia probe wasn’t launched because of Carter Page, and the dossier compiled by an ex-spy was only part of the evidence cited to get a warrant.

President Donald Trump and his allies are claiming that the partial contents of a secret national security FISA warrant, released Saturday, vindicate their claim that special counsel Robert Mueller’s Russia investigation was improperly launched on the basis of a speculative opposition research document paid for by Democrats.

The Trump camp says the probe has its roots in the “Trump dossier” compiled by former British spy Christopher Steele, which alleges collusion between the Trump campaign and Russia.

“So we now find out that it was indeed the unverified and Fake Dirty Dossier, that was paid for by Crooked Hillary Clinton and the DNC, that was knowingly & falsely submitted to FISA and which was responsible for starting the totally conflicted and discredited Mueller Witch Hunt!” the president wrote in a tweet Monday morning.

Trump also continues to suggest that the electronic surveillance of his one-time campaign aide, Carter Page, which was authorized by the FISA warrant, launched the Russia probe.

Both of these assertions are false.

Here is why …

National security experts who have reviewed the document say that even the parts that aren’t blacked out contain more than enough information to provide a judge reason to rule that the FBI had probable cause to believe that Page was an agent of Russia.

Probable cause is much lower than the reasonable doubt the standard required to convict someone of a crime. “It’s the probability of a possibility,” said William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University College of Law. Page had already appeared on the FBI’s radar as a target of Russian intelligence recruitment in a separate spy case. He has acknowledged that he traveled to Moscow and met with Russian officials during the 2016 campaign. It would have been malpractice for the FBI, confronted with allegations that Page was helping the Russians, not to investigate, Figliuzzi says …

The FBI disclosed to the court that Steele was paid by people seeking to discredit Trump. But the FBI viewed Steele as credible.

“They dealt with the Steele stuff in an extensive footnote with bolded language,” Banks said. The note didn’t disclose that the dossier was paid for by Democrats because the document didn’t use any names or identities. It called Trump “Candidate 1” even after he was elected president. But the note did say that the dossier appeared to be funded by people seeking to discredit Trump.

In addition, Steele was seen not as a partisan operative, but as a credible source, according to the warrant. The document doesn’t say this, but Steele had helped the FBI for years, including providing crucial information in the U.S. investigation of corruption in international soccer.

Read the complete article.

 

Carpenter v. US: Gorsuch’s Dissent Re-Ignites Criticism of the Third-Party Doctrine

By Lauryn Gouldin

One interesting aspect of the Court’s decision in Carpenter v. United States is Justice Neil Gorsuch’s dissent. While many will, no doubt, cast the Carpenter decision as a 5-4 decision narrowing the reach of the Court’s broadly applied and long-criticized third-party doctrine, attentive readers will see that the result is a bit more complex. For those trying to predict where the justices stand on Fourth Amendment issues going forward, this is better characterized as a 5-3-1 decision, with Justice Gorsuch standing alone. 

“Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a ‘reasonable expectation of privacy.’”

Chief Justice John Robert’s majority opinion, joined by the Court’s four liberal justices (justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), marks a significant narrowing of the third-party doctrine—significant, in part, because it is the first case where a majority of the Court acknowledges that the doctrine has meaningful limitations. But it is also a measured decision. Many encouraged the Court to use Carpenter to eliminate the third-party doctrine altogether. The majority, however, clearly declined to go that far and claimed that its decision was “a narrow one.” 

Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito writing together (and separately) are clearly persuaded that the government conduct in this case—the order to a cell phone company to search company records for data collected about a subscriber’s past locations—was not a “search” under the meaning of the Fourth Amendment. 

Justice Gorsuch’s take on that basic question is different. Like Justice Thomas, Justice Gorsuch is skeptical of the Court’s Katz v. US jurisprudence and its efforts to ascertain (or worse, to dictate) what the community views as a “reasonable expectation of privacy.” Justice Gorsuch clearly disagrees with the other dissenters about the possibility of a Fourth Amendment violation on the facts presented. In his dissenting opinion, Justice Gorsuch repeatedly suggests that he sees government overreaching (and a potential Fourth Amendment violation) in the factual background of the case. He unmistakably criticizes the third-party doctrine, stating, for example, that “[c]onsenting to give a third party access to private papers that remain my property is not the same thing as consenting to a search of those papers by the government.” Further, he agrees with the majority that “the rationale of Smith and Miller is wrong.”

Despite these concerns about the doctrine and about the underlying question, Justice Gorsuch dissents from the majority opinion, ruling against Carpenter on procedural grounds. In Gorsuch’s view, Carpenter failed to assert and develop essential property-based, positive law arguments. Justice Gorsuch even suggests these arguments might have persuaded him to rule in Carpenter’s favor (“In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.”) Justice Gorsuch says, explicitly, that it is “entirely possible a person’s cell-site data could qualify as his papers or effects under existing law.”

Lauryn Gouldin is Associate Professor of Law at Syracuse University College of Law.

William C. Banks Expertise in Demand as FISA Court Remains in the News

INSCT Director William C. Banks has long studied the Foreign Intelligence Surveillance Act (FISA) and the FISA Court (or FISC), which was established under FISA in 1978. The FISA Court oversees requests, often by the FBI, for warrants to surveil foreign intelligence agents and, occasionally, US persons suspected of working with foreign agents.

One such US person is former advisor to President Donald Trump, Carter Page, who is alleged to have long worked with Russia intelligence operatives and may have been under FISA warrant surveillance as early as 2014. The FISA warrants against Page, and the intelligence used to apply for those warrants, are in the national spotlight thanks to a memo largely written by Devin Nunes, Chair of the House Permanent Select Committee on Intelligence, alleging that the FBI misled the FISA Court as to the partisan political nature of some of that intelligence.

Media outlets, including The New York Times and WIRED, reached out to Banks to gauge his opinion on the Nunes allegations, to explain how the FISA process works, and to understand what this controversy means for the Trump presidency and the US intelligence community.

House intelligence committee votes to release Democrats’ intel memo (CNY Central | Feb. 5, 2018)

The fact that any of the information about the FISA order against Carter Page came out to begin with is “extraordinary,” said William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University.

“It’s unfortunate that anything came out. It damaged the intelligence community and the Department of Justice and the FBI,” he said. But he still supports the release of the Democratic memo in order to “balance the record.”

Banks continued, “I think the intelligence community is completely aghast and abhors what’s going on here, whether it’s coming from the Democrats or the Republicans.”

Devin Nunes Promises ‘Phase Two’ of Investigation (Bloomberg Radio | Feb. 5, 2018) 

William Banks, a professor at Syracuse University Law School, discusses the so-called Nunes memo, which president Trump said over the weekend “totally” vindicated him of any collusion with Russia or obstruction of justice in special counsel Robert Mueller’s ongoing investigation.

Reading Between the Lines of the Devin Nunes Memo (WIRED | Feb. 2, 2018)

… “The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application,” says William C. Banks, founder of the Institute for National Security and Counterterrorism at Syracuse University College of Law …

How to Get a Wiretap to Spy on Americans, and Why That Matters Now (The New York Times | Jan. 30, 2018)

William C. Banks, a Syracuse University law professor who has studied the FISA Court, said that without reviewing all the documents involved in the surveillance request, it was impossible to judge the importance of how Mr. Steele was described. But he emphasized that the government had broad leeway in seeking FISA warrants.

“Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities directed at the United States,” Mr. Banks said. “Game over. The standards are incredibly open-ended” …

 

“Cherrypicking”: William C. Banks Weighs in on the Nunes Memo in WIRED

READING BETWEEN THE LINES OF THE DEVIN NUNES MEMO

(WIRED | Feb. 2, 2018) AFTER WEEKS OF Twitter users demanding Congress #ReleaseTheMemo, the House Intelligence Committee—chaired by Republican Devin Nunes—disclosed the contentious four-page report to the public Friday, after President Donald Trump signed off on its release. And while, as expected, the document alleges that federal law enforcement officials abused their surveillance powers in investigating the Trump campaign’s ties to Russia, national security experts see something very different. In fact, they see almost nothing at all—or at least not enough to make any definitive judgement calls.

“The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application.”

As had been rumored, the memo details supposedly improper actions by law enforcement officials in seeking a warrant to wiretap Carter Page, one of Trump’s campaign advisors. But understanding what the memo says—and, critically, doesn’t say—requires familiarity with the secretive Foreign Intelligence Surveillance Court, which governs requests made under the Foreign Intelligence Surveillance Act, better known as FISA. Those who know the law best say the memo is largely bunk …

… “The dossier and Steele and all that—it’s cherrypicking a piece of what was probably a 50, or 60, or 100 page application,” says William C. Banks, founder of the Institute for National Security and Counterterrorism at Syracuse University College of Law

FISA applications also have to go through an in-depth protocol known as the “Woods Procedure,” during which the intelligence community needs to verify every single fact. For example, if the application says a person was on a specific train at a specific time, the agent would need to show Department of Justice lawyers how they found out that information. There are other oversight mechanisms as well. For example, applications need to be first certified by the Director or Deputy Director of the FBI, as well as the Attorney General, Deputy Attorney General, or Assistant Attorney General for the National Security Division. In other words, FISA warrants are reviewed at the highest levels, which is part of the reason Nunes’ allegations are so explosive—they implicate multiple parties at the very top of the US intelligence apparatus …

… “I can’t recall any instance in 40 years when there’s been a partisan leaning of a FISA court judge when their opinions have been released,” says Banks …

To read the full article, click here.

 

“Game Over”: William C. Banks Discusses FISA, Wiretapping, & Carter Page With The New York Times

How to Get a Wiretap to Spy on Americans, and Why That Matters Now

(The New York Times | Jan. 30, 2018) A fight over a classified memo written by Republican staffers on the House Intelligence Committee, which portrays as scandal-draped the early stages of the Justice Department investigation into links between the Trump campaign and Russia, is heightening interest in legal issues about intelligence wiretap applications.

“Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities directed at the United States.”

On Monday, the committee, which is led by Representative Devin Nunes of California, voted along party lines to set in motion a process to soon make the memo public under an obscure House rule, while rejecting a request to simultaneously disseminate a rebuttal memo produced by the committee’s Democrats.

According to people who have read it, the Republicans’ memo describes what they portray as an abuse of government surveillance powers. It centers on a classified wiretap application the government submitted to a judge in the fall of 2016 that targeted Carter Page, a onetime Trump campaign official who had traveled to Russia in July 2016 and was preparing to return there that December, along with renewal applications.

What is a FISA wiretap?

The Foreign Intelligence Surveillance Act, or FISA, signed into law in 1978, requires the government, when eavesdropping on communications on domestic soil for national security purposes, to obtain permission from a judge on the Foreign Intelligence Surveillance Court. The judge must agree that the target is probably an agent of a foreign power and will probably use the specific email accounts or phone numbers that the Justice Department wants to wiretap …

… David Kris, who ran the Justice Department’s National Security Division early in the Obama administration and helped write a book about FISA, says that when the department submits material from sources to the court, “it should also include information that would cast material doubt on their credibility — sources often come with bias or baggage of one sort or another.”

But, he said, “there is no requirement for elaborate accounting: Courts routinely accept and uphold affidavits that generally describe a source’s shortcomings” without every specific detail.

 William C. Banks, a Syracuse University law professor who has studied the FISA Court, said that without reviewing all the documents involved in the surveillance request, it was impossible to judge the importance of how Mr. Steele was described. But he emphasized that the government had broad leeway in seeking FISA warrants.

“Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities directed at the United States,” Mr. Banks said. “Game over. The standards are incredibly open-ended”  …

To read the full article, click here.

“The Foundation of Intelligence Gathering”: Bloomberg Discusses FISA Act Extension with William C. Banks

House Passes FISA Rules After White House Uncertainty

William Banks, a professor at Syracuse University Law School, discusses the House’s passage of an extension to the Foreign intelligence Surveillance Act, otherwise known as FISA, which has seen unsteady support from the President, who says he now supports the warrantless spying bill. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”

“A Partisan Move”: William C. Banks Analyzes Republican Complaints Against Author of the “Steele Dossier” on Bloomberg Law

House Republicans Launch New Attacks Against FBI

William Banks, a professor at Syracuse University Law School, discusses attacks by House Republicans against the FBI and the Russia investigation as GOP lawmakers try to prepare the party for the 2018 midterm elections. He speaks with Bloomberg’s June Grasso on Bloomberg Radio’s “Politics, Policy, Power and Law.”

https://www.bloomberg.com/news/audio/2018-01-08/house-republicans-launch-new-attacks-against-fbi-audio

Step-by-Step: William C. Banks Updates Bloomberg on the Mueller Probe

Goodman and Banks on Mueller Probe

(Bloomberg Law | Nov. 13, 2017) Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, and William Banks, Director, Institute for National Security and Counterterrorism at Syracuse University College of Law, discuss the latest developments in the in the Mueller probe.

https://www.bloomberg.com/news/audio/2017-11-13/goodman-and-banks-on-mueller-probe-audio

Geospatial Intelligence Hall of Fame Inducts Robert B. Murrett

Robert B. Murrett

The National Geospatial-Intelligence Agency (NGA) inducted the Geospatial Intelligence Hall of Fame Class of 2017 during a ceremony at the agency’s headquarters in Springfield, VA, Oct. 3, 2017.

Among the inductees was INSCT Deputy Director Vice Adm. Robert Murrett (Ret.), Professor of Practice, Public Administration and International Affairs, SU Maxwell School of Citizenship and Public Affairs. A former NGA director, Murrett was cited for having pushed to get more analysts and support staff into theater during the wars in Iraq and Afghanistan, which deployed highly-trained geospatial intelligence analysts to combat zones to support war fighters.

“Murrett also ensured NGA provided a common operating picture in Haiti following the earthquake and tracked the Deepwater Horizon oil spill in the Gulf of Mexico. He oversaw the construction of NGA Campus East, which consolidated the agency’s East Coast operations into a central location,” according to the NGA press release. 

Murrett’s tenure as Director of NGA was the culmination of a distinguished career as a US Navy intelligence officer. Among his other appointments, Murrett was Commander of Atlantic Intelligence Command; Director for Intelligence, US Joint Forces Command; Vice Chair Director for Intelligence, Joint Staff; and Director of Naval Intelligence. 

“[The] induction into our Hall of Fame is the absolute pinnacle of achievement and recognition for anyone who has ever served in a part of the geospatial intelligence enterprise,” says NGA Director Robert Cardillo. “The 65 phenomenal names inscribed in our Hall of Fame before today each represented pioneering spirits and hard work. They persisted and reached the pinnacle of our profession, not for themselves, but for the United States and our allies.”

https://www.nga.mil/MediaRoom/PressReleases/Pages/2017-Geospatial-Intelligence-Hall-of-Fame-inducts-six-former-leaders,-geospatial-pioneers.aspx

 

No Fishing Expedition: William C. Banks Talks Russia Probe with Bloomberg Law

Rosenstein Says Probe is not a “Fishing Expedition”

(Bloomberg Law | Aug. 7, 2017) William C. Banks, Director for the Institute for National Security and Counterterrorism at Syracuse University College of Law, discusses the ongoing investigation surrounding Russian involvement in the 2016 election. He speaks with Greg Stohr.

https://www.bloomberg.com/news/audio/2017-08-07/rosenstein-says-probe-is-not-a-fishing-expedition-audio