Last week, the leaks began in anticipation of the expected early-December release of the inspector general report on the propriety of the Carter Page Foreign Intelligence Surveillance Act (FISA) surveillance order. CNN broke news on Thursday that “a former FBI lawyer is under criminal investigation after allegedly altering a document” related to the 2016 FISA applications.
The press and public are understandably consumed with this news—which is huge if true—but while speculating on that forthcoming report, the media has ignored several significant revelations already detailed in the report Inspector General Michael Horowitz released last week.
That report, issued on Tuesday, summarized the results of the inspector general’s audit of the Federal Bureau of Investigation’s Confidential Human Source (CHS) validation processes. While the media reported the main takeaways summarized in the IG’s press release—that the FBI did not comply with attorney general guidelines and that the current process for validating these sources lacked adequate controls—there were four potential blockbusters buried in the 63-page report.
Burying Evidence to Keep It from the Courts
The most startling revelation in the audit concerned how the FBI handles problems with a CHS’s credibility or accuracy. The report first noted that “validation documents relevant to the credibility of a CHS may be discoverable in judicial proceedings,” explaining that:
Discovery in criminal cases is controlled by case law and the Federal Rules of Criminal Procedure. For example, information in the validation report which refers to the CHS’s motivation or vulnerabilities may be discoverable pursuant to Brady v. Maryland, 373 U.S. 83 (1963) or Giglio v. United States, 405 U.S. 150 (1972). ‘Brady’ refers to information known to the government that is material to a criminal case and could tend to exculpate the defendant. ‘Giglio’ refers to information that could be used to impeach a witness for the prosecution.
Then the IG detailed that its investigation revealed several troubling steps the FBI took to avoid the mandates of Brady and Giglio.
We were told by multiple Intelligence Analysts that they received guidance to only state the facts and not to conduct analysis, report conclusions, and make recommendations in the Significant Source Review Panel validation reports. For example, one Intelligence Analyst told us that he was permitted to recommend a CHS receive a polygraph or operational test to the handling agent by phone but not permitted to document the recommendation in the CHS’s validation report. Additionally, multiple FBI officials told us that they believe that field offices do not want negative information documented in a CHS file due to criminal discovery concerns and concerns about the CHS’s ability to testify. For example, one FBI official told us that some U.S. Attorney’s offices will not use a CHS at trial if there is negative documentation in the CHS’s file.
These admissions should outrage Americans: The FBI is intentionally failing to document confidential sources’ credibility and reliability problems so defense attorneys do not learn of them! Or, as the IG report concluded, “by withholding potentially critical information from validation reports, the FBI runs the risks that (1) prosecutors may not have complete and reliable information when a CHS serves as a witness and, thus, may have difficulties complying with their discovery obligations.”
Leslie McAdoo Gordon, a D.C.-based criminal defense attorney and principal at McAdoo Gordon and Associates, branded the FBI’s failure to document issues in a CHS’s validation report a form of evidence tampering. “This ‘what they don’t know won’t hurt them’ attitude is cultural,” McAdoo Gordon told The Federalist. “Like all cultural problems, this is caused by a failure of leadership.”
McAdoo Gordon added that “the integrity of our criminal justice system is seriously damaged when investigations are grounded on information that is biased or dishonest and those problems, moreover, are hidden from the defendant’s advocate and the court.” Unfortunately, there is nothing a defense counsel can do, McAdoo Gordon noted, because they don’t know it’s happening.
Affects Future Knowledge of New FBI Agents
Moreover, as the report makes clear, the failure to document a CHS’s credibility or reliability problems also has future ramifications “because handling agents change and new handling agents can only know the risks if they are documented.” This lack of documentation may also deprive future handling agents “of relevant information about the CHS that could not only jeopardize an investigation but also put the agent’s safety and potentially sensitive information at risk,” as the IG report explained.
While these aspects of the IG’s audit raise serious concerns in all criminal cases involving CHSs, these findings directly bear on the FBI’s use of Christopher Steele as a CHS in the Page FISA applications. In the Page FISA applications, after noting that it had suspended Source #1, now known to be Steele, for making “unauthorized disclosure of information to the press,” the government stressed that it still assessed Steele “to be reliable as previous reporting from Source #1 has been corroborated and used in criminal proceedings.”
But what about previous reporting by Steele that was contradicted or refuted? Or what about previous credibility or reliability issues? Did the FBI insist such negative information be excluded from Steele’s “validation reports” to keep his file clean? We will likely never know.
What About Steele’s Sub-Sources?
Relatedly, the IG’s audit of confidential human sources reveals that the FBI did not maintain validation reports for sub-sources, defined in the report as individuals “who directly acquire[] information that is then provided to the FBI by an FBI CHS.” That omission raised myriad additional problems and concerns.
Specifically, according to the IG report, “Delta,” which “is the FBI’s official electronic record-keeping system for CHS management,” “does not identify and track extraterritorial sub-sources.” As such, the CHS system “will lack complete and accurate information on its CHS coverage stemming from extraterritorial sub-sources.”
That the FBI’s electronic record-keeping system for CHS management does not identify and track extraterritorial sub-sources adds even more concerns to the already overabundant problems plaguing the FBI’s Page FISA applications. Recall that the FISA applications “relied heavily on Mr. Steele’s dossier claims,” and that “the bulk of the application consists of allegations against Page that were disclosed to the FBI by Mr. Steele and are also outlined in the Steele dossier.”
Not getting swayed til the report comes out selective leaks, un-named or reliable sources…. this isnt news.
It is news when the report is actually released to the citizens that have paid for the report. At this point we are spinning our wheels in gravel, the rubber hasnt met the road.
This is news, look how he insists the VP keeps scratching him that is a incredible dog!