‘Crossfire Hurricane’ and the FISA Court: An expert’s view

“Operation Crossfire Hurricane,” the FBI’s code name for its investigation into Donald Trump’s campaign and Russia, blew through the United States in 2016 and did more damage to our national security institutions than any real hurricane could. The upcoming report from the Department of Justice’s Inspector General may well conclude that high-level Obama Justice Department and FBI officials knowingly lied to obtain top-secret surveillance warrants that were originally designed to target foreign spies and terrorists, and used them to monitor a U.S. citizen whose only crime appears to have been acting as an adviser to the Trump campaign.  

While lying to a federal court is a crime, lying in the context of using our nation’s most secret — and most constitutionally intrusive — counter-intelligence assets as part of a false narrative to oppose a political candidate is downright dangerous and should strike fear in the average citizen who now is left to wonder what protects them from such seemingly unchecked power of the state. 

It is a very serious matter to obtain a Foreign Intelligence Surveillance Act (FISA) warrant. The members of the FISA Court are appointed by the chief justice of the Supreme Court. Each of these federal judges rotates into Washington to sit in the highly-secure courtroom inside the Department of Justice (DOJ) on Pennsylvania Avenue to review and sign FISA applications, which then become formal warrants to surveil national security targets in a variety of classified and unclassified ways. 

When I was a Justice Department lawyer, it was a humbling experience for me to secure a special courier card just to carry the double-bagged FISA warrant applications from the Sensitive Compartmented Information Facility (or “SCIF”), which required handprint security measures to enter, to the similarly secured courtroom to present the application to a FISA Court judge for consideration and signature. I challenged the agents about the reliability of, and foundation for, every single paragraph of every application sent over to me, each of which was marked with a special letter indicating its level of classification. 

It is true that few FISA applications are denied by these specially-appointed federal judges. But the reason is not that they are a rubber stamp for DOJ attorneys and the three-letter agencies submitting them. Rather, it is that the applications are sent to the judge for an initial review before the DOJ attorney physically takes the final application to the judge to sign. If the judge has any questions about sources or whether there is sufficient predication for the warrant, those concerns are shared with the DOJ attorney, who will go back to the agent who requested a warrant and attempt to address those concerns in a way that will make the application comport with the law to the judge’s satisfaction.  

This might mean getting more corroboration for a source, or getting more factual information that supports the required conclusion that the target is the agent of a foreign power, engaged in some espionage or intelligence activities. These judicial demands for more information are not particularly unusual. Only then, after the requested information is added, is the formal application presented to the court.

Given what we know about the predication of the warrant obtained during Operation Crossfire Hurricane, it appears it lacked reliable information, and the Inspector General may find the warrant was obtained contrary to FISA and the U.S. Constitution. The entire FISA warrant has not been declassified, but the portion that has been shows there were representations that former British spy Christopher Steele’s various claims regarding Russian collaboration with the Trump campaign — made while doing opposition research on behalf of the Clinton campaign and Democratic National Committee — were reliable enough to support the extraordinary use of secret surveillance against an American political adviser.  

The report by former special counsel Robert Mueller showed that no American collaborated with the Russian government in the election. Therefore, Steele’s claims were not, in fact, reliable. But, does that mean someone lied to the FISA Court, or were they just mistaken? As Americans, we have the right to expect our national security agencies take their vast powers seriously. We also expect that FBI agents and attorneys presenting FISA warrants to spy on Americans (targeting Americans requires yet another, higher level of proof of criminality related to foreign spying) have rigorous procedures in place to guard against frivolous or false claims that are used for nefarious — or partisan political — purposes.  

Any experienced agent or prosecutor reviewing the Steele dossier can see the glaring warning signs that should have gotten the information discarded. The FBI must have been well aware that Steele, who laughably claimed he had evidence of an “extensive conspiracy between the Trump campaign and the Kremlin” had not even been to Russia in 20 years, making most of his Russia-based information secondhand hearsay at best. Coupled with the obvious partisan bias revealed in those who directed the counter-intelligence operation, it is hard to conclude these representations were innocently or ignorantly made.  

It is also hard to understand what happened to the rigorous paragraph-by-paragraph verification process under which the Office of Intelligence Policy and Review (now renamed and under the National Security Division) operated during my time there.

The DOJ Inspector General surely will be able to tell the American people the level of experience of the attorneys, agents and supervisors who signed off on this FISA warrant. His report should reveal the entire process and how it went wrong, so that it will never happen again. He also no doubt will reveal why information that has been shown to have had no credibility or reliability — bedrock constitutional requirements necessary to use the power of the state to spy on Americans — was included in the surveillance warrants used to bolster the ironically named disaster that was Crossfire Hurricane. 

If anyone who abused the awesome power of the surveillance state is held to account, Americans can feel confident the protections guaranteed to them by the Constitution are again fully operational. Justice, finally, may be coming.

Francey Hakes was a prosecutor for 16 years and now consults on national security and the protection of children. As a former assistant U.S. attorney, she appeared before the Foreign Intelligence Surveillance Court, presenting applications for counterterrorism and counterespionage warrants on a special detail to the Department of Justice Office of Intelligence Policy and Review. Follow her on Twitter @FranceyHakes.