In the finger-pointing flurry over the release of the Nunes memo, perhaps the most important point keeps getting overlooked. When the FBI presented the so-called Steele dossier to the Federal Intelligence Surveillance Court in 2016, there is no evidence that it was accompanied by a good faith evaluation or summary of its contents.
Why does that matter? It goes to the question of whether Justice Department officials tried to pass off raw intelligence in support of a political agenda as the pretext for a bona fide national security investigation.
Intelligence is generated various ways, but its value always depends on how it is evaluated and compiled. Over the past century, the principles of that evaluation have been well-established. The more critical the possible implications and use of the intelligence, the more painstaking that evaluation must be. Time is of the essence.
What could be as potentially consequential as intelligence that the Russians are meddling in our presidential election?
Senator Richard Burr (R-N.C.) asked FBI Director James Comey at a June 2017 hearing whether the FBI had confirmed any of the Steele dossier’s claims. Comey replied he couldn’t answer in “an open setting.” At that point, the dossier had already been offered as evidence to the FISA court. According to Deputy Director Andrew McCabe’s testimony in December, “no surveillance warrant would have been sought from the FISC without the Steele dossier information.” It was the key piece of evidence that secured the various FISA warrants and renewals.
This nicely left the impression that perhaps at the least some sections of the dossier had been confirmed by the FBI. Which sections? In his Senate testimony, Comey admitted the document contains “salacious and unverified” material. The possibilities of contamination skyrocket.
No one would ever have expected the Justice Department and the FBI would dump the entire dossier into evidence for a FISA court without extracting the confirmed information from the unconfirmed, and providing some background on its provenance. Under ordinary circumstances, investigators would want to ensure unconfirmed information did not contaminate the value of the confirmed.
What’s extraordinary—indeed, unheard of—in intelligence practice would be to dump an undifferentiated pile of verified and unverified material in front of a court and expect sound judgment to come of it.
In January 2017, as the Obama Administration was winding down, Director of National Intelligence James Clapper, CIA Director John Brennan, FBI Director Comey, and NSA Administrator Mike Rogers held a crucial meeting with President-elect Trump, delivering a two-page synopsis of the Steele dossier’s charges along with a memorandum detailing Russia’s alleged involvement in the election.
Clapper then issued a public memorandum noting that a few days after that meeting, he’d had a personal conversation with Trump about the Steele dossier. Clapper stated: “The I(ntelligence) C(ommunity) has not made any judgement that the information is reliable, and we did not rely upon it in any way for our conclusions.” He added, with emphasis: “this document is not a U.S. Intelligence Community product . . . .”
So whatever Comey may have told Clapper about the dossier months after the FBI used it to obtain a FISA warrant to spy on the Trump campaign, Clapper in January 2017 offered no endorsement of its findings. His statement reads as though he’s trying to distance himself from it as far as possible. This is very strange indeed, since it had been a major subject at Trump’s pre-inauguration meeting with all the intelligence and security agency heads, and of acute interest to the press and the public.
And examining the origins of the Steele dossier—another vital element in evaluating and using intelligence—it has more red flags than an ammunition depot. It is pure political opposition research, funded by an opposing political party specifically to disgrace the Trump candidacy and lead to his defeat. It is almost totally dependent upon second- and third-hand Russian sources gathered by a former British intelligence agent who hadn’t been in Russia in years and who had to admit in a British court that he had been unable to verify part of it.
Put in proper context, agenda-driven material can be useful. But no one responsible—least of all law enforcement—would use it without careful qualification. And no one would pass it along as evidence to a FISA court while deceiving the court about its origins. But as the Nunes memo states, the FBI did not “disclose or reference the DNC. Clinton campaign, or any party/campaign, in financing Steele’s efforts, even though the political origins of the Steele dossier were then known to senior FBI and DOJ officials.”
According to the American Bar Association rule 3.3:
In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
The FBI’s use of the Steele dossier fails every test for the proper handling of intelligence or evidence. FBI and Justice Department officials submitted the dossier to the FISA court without a full vetting. The FBI’s concealing of its origins was intentionally deceptive and can’t be blamed upon a single mistaken application because the same deceptions were repeated through several applications and renewals. The FBI has been handling intelligence properly for decades. One can only conclude this was not a good faith attempt to evaluate a possible foreign threat in an election, but was instead part of an effort to influence the election’s outcome.
It is a bitter irony that it may be Special Counsel Robert Mueller who finally does a proper evaluation of the Steele dossier.