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A note on FISA “verification”

a look at context to determine whether they’re referring to information relied on in the investigation or other elements of Steele’s reporting.

More fundamentally, though, much of the commentary claiming some clear breach of protocol in the Carter Page FISA simply misunderstands what it means to say that a FISA application has been “verified.” It does not mean that every tip provided by a source has been independently corroborated. Rather, “verification” refers to the process laid out in the so-called “Woods procedures,” which require Justice Department officials to verify that representations made in a submission to the Foreign Intelligence Surveillance Court match the information in the FBI’s investigative files. If the application relies upon a source for some claim, does the documentation in the case file support that the source actually said what the application presents the source as saying? In this case, then, “verification” would not mean the FBI had necessarily tracked down Steele’s own sources to corroborate his reporting. Rather, it would require that someone “verify” that when the application summarized what Steele had told the FBI, it did so accurately.

This should, in a way, be a matter of common sense. If the FBI had independently confirmed a tip from a source, after all, that independent confirmation would be in the application. Indeed, why would you rely on a source at all if you had been able to directly confirm their claims? It would be fairly bizarre for the FBI to say “our own investigation has unearthed proof that our source’s claims were true, but we’re not going to make that proof part of our showing to the court.” In this case, it seems as though the FBI was quite straightforward in telling the FISA Court that their reliance on Steele’s information was based on his track record of providing reliable evidence in the past, not on having independently duplicated his reporting. There is a reasonable argument to be made that the Court should not have been satisfied with this sort of second- or third-hand evidence, but it can’t be reasonably argued that they didn’t understand what the evidence was, or were tricked into thinking the FBI had extra secret evidence to support their claims. It is not so uncommon, after all, for intelligence investigations to involve information provided by foreign allies that the U.S. government cannot itself directly check. If Israel tells the FBI about information reported by an undercover agent in a terror group, the FBI can check whether that intelligence is consistent with their other information, but will rarely be able to interview the mole directly. The question, as always, is not whether one has indisputable proof, but what level of credibility the agency ascribes to the varied types of information it has available.

Sanchez concludes:

Does that mean the Carter Page warrant was appropriate, and should have been granted? Again, it’s hard to say without both seeing the full application, and perhaps knowing more about Steele’s history of providing reliable information. But if there is an objection to make here, it’s to the FISA application process, and the standards of evidence applied by the FISC in general—not to a deviation from normal protocol that resulted in the unwitting FISC justices being tricked about what evidence FBI had available.

Read the article: Julian Sanchez, “A note on FISA ‘verification’,” Just Security (14 December 2018)