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Secret U.S. Court Issues Public Rebuke Of FBI Over Russia Report

DAVID GREENE, HOST:

A secret federal court has emerged from the dark to publicly slam the FBI and Justice Department. The Foreign Intelligence Surveillance, or FISA, court has to sign off if, say, the FBI thinks someone may be a foreign terrorist or spy and they want to wiretap them or carry out surveillance on U.S. soil.

NOEL KING, HOST:

Recently, the inspector general of the Justice Department strongly criticized the FBI for how it handled the investigation into President Trump's campaign and Russia. Now, the inspector found no political bias against Trump from the agency, but he also said the FBI and the Justice Department mishandled surveillance on a former Trump campaign aide, Carter Page. They didn't disclose information to the court that made Page less suspicious.

GREENE: Now the FISA court itself has demanded that the FBI explain its mistakes and show how it will fix the problems. Mary McCord is a former top Justice Department official. She served during both the Obama and Trump administrations and was partly involved in the FISA applications we're talking about. She is now a professor at the Georgetown University Law Center and joins us this morning. Thanks for coming on the program.

MARY MCCORD: My pleasure. Happy to be here.

GREENE: I just want to start with, you know, your former role. You were assistant - acting assistant attorney general for national security, played some role in the first two FISA applications during this FBI investigation. I mean, you're actually named in the inspector general report. So how do you defend the department's actions that are in question here?

MCCORD: Well, I think if, you know, a careful read of the report shows that most of the blame, at least that the inspector general is placing on the department, is with respect to a failure of the FBI to apprise Department of Justice attorneys, those in the chain of review of FISA applications, of all of the pertinent facts and relevant facts that should have been provided - and not only to the Department of Justice officials, but also many facts that should have been provided to the court.

And so - and I'm not here to, you know, trash the FBI. There are very good people, excellent people there who try very hard every day and are very careful every day to make sure that their FISA applications are 100% accurate. But obviously, the inspector general's report found a number of deficiencies in this particular FISA application. And so I'm not at all surprised that the chief judge of the FISA court has asked for the government to answer to those misrepresentations and those omissions and explain what it intends to do to rectify the situation.

GREENE: So you're saying that if employees of the FBI were trying to look at Carter Page, for example, they might not have been totally forthcoming about things that, for example, may have seemed less suspicious about this former Trump campaign aide. That information never even made it into the department at, like, the level where you were working.

MCCORD: That's correct. And, you know, it's similar - a FISA application is not that much different than, say, an application for a search warrant or an application for a Title III warrant in a normal criminal case. I mean, the process is different. The court it goes to is different because it's a FISA court. But the FISA court is made up of Article III judges, the same judges that sit in criminal cases.

And anytime that Department of Justice lawyer or prosecutor is going to be submitting an application for any type of search or surveillance to any court, they are reliant on information provided by law enforcement. Sometimes that might be local law enforcement. Sometimes it might be the FBI. Sometimes it might be other law enforcement. And so the - in this case, the bureau, of course, the strength of the application is dependent on the information provided by the bureau to the Department of Justice. And the Department of Justice, of course, is the only entity that can make applications to the FISA court for these orders.

So it's a ying and a yang relationship. The FBI needs the department. The department relies on the FBI. And the FISA court relies, of course, on both.

GREENE: And the FISA court now saying that they can't necessarily rely on the FBI or the department to be truthful, even in future applications. So what needs to be done here? What needs to be fixed?

MCCORD: Well, I think what you're going to see - and we've already seen out of Director Wray, you know, 40 different recommendations or 40 different things he intends to change about the process. I think we're going to see a much more rigorous review of the factual accuracy of every assertion made in a FISA application.

So there is a procedure that the FBI uses, and it's a creation of something called a Woods file, named after the FBI assistant director who came up with this notion, which is a file where every single factual assertion is stored. It's where any kind of derogatory or negative information is stored, any kind of information, as you indicated earlier, David, that would tend to suggest that maybe the target of the application is less culpable. And so I think what we'll see is a much more rigorous review make sure that everything that is in that Woods file - first of all, that everything's in there, and that everything in that Woods file that needs to be presented to the Department of Justice and needs to be presented to the FISA court will, in fact, be presented.

GREENE: Mary McCord was a longtime Justice Department official, now with Georgetown University Law Center. Thanks so much for your time this morning. I really appreciate it.

MCCORD: You're welcome. Transcript provided by NPR, Copyright NPR.

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