An attorney selected to advise the Foreign Intelligence Surveillance Court says he might have recommended against surveilling former Trump campaign adviser Carter Page. But he was never asked for an opinion.
John Cline was one of the first people designated by the shadowy court’s judges as eligible to advise them on privacy and other intelligence collection issues, but he was not consulted on the Page case — or any other — during his two years on the amici curiae roster.
Cline served as an on-call expert alongside five others when the FBI and Justice Department sought a warrant to spy on Page, a businessman who had worked in Russia, on Oct. 21, 2016. The government received the warrant the same day, and later three 90-day renewals.
House Intelligence Committee Republicans argued in a memo released Friday that surveillance of Page improperly hinged on opposition research compiled by ex-British spy Christopher Steele, who was paid by Democrats and Hillary Clinton's presidential campaign. It also argued that information wasn't available to the court, though that point has been disputed.
“If I had access to the underlying application, I might have argued that the Steele dossier was unreliable because of its origins, and perhaps for other reasons as well,” Cline told the Washington Examiner Monday.
It’s unclear if any of the other eligible FISC amici curiae were consulted on the Page case, but people familiar with the panel of experts say their opinion is rarely solicited.
The role of FISC amici curiae was created by the 2015 USA Freedom Act, a law that ended the National Security Agency’s bulk collection of U.S. call records and made various reforms to enhance privacy and transparency. The role was seen as a way to bring balance to the FISC, where judges often only hear the government's arguments.
The Freedom Act says the FISC “shall” use amici when confronted with “a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate,” and “may” use amici “in any instance as such court deems appropriate.”
The reform law's lead sponsor, Rep. James Sensenbrenner, R-Wis., said he would like to see the amici role strengthened in the wake of the Page memo.
“The recently released memo raised many concerns about the intelligence community’s use of FISA and Congress’ oversight of these powers,” Sensenbrenner told the Examiner. “As Congress moves forward with investigating these matters, we should reconsider strengthening the role of the amici curiae for FISC to ensure that every American’s Fourth Amendment right is properly protected.”
The FBI and Democrats on the House Intelligence Committee say the GOP's memo misrepresented classified information and made inaccurate and incomplete claims about secret court filings. Rep. Adam Schiff, D-Calif., said the memo inaccurately said that the government withheld information about the political nature of Steele’s work.
Some experts, such as Fourth Amendment scholar Orin Kerr, a law professor at George Washington University, argue the probable-cause standard for a warrant might have been met even with Steele’s partisan motives known to judges. “We just can’t tell” based on evidence in the GOP memo, Kerr wrote.
An attorney who has appeared before the FISA court and believes the public should have confidence in the surveillance of Page said amici should be used more often.
“Thus far, the amici have been underutilized by the lower court — the Foreign Intelligence Surveillance Court — but appropriately utilized by the Court of Review, which has appointed amici in each case before it since the statute was passed,” the attorney said.
The attorney, who asked not to be named, said the public should trust the FISC process involving Page, citing the role of many Justice Department officials and FISC judges. The attorney alleged a malicious effort to “undermine public trust in these institutions,” but said “appointing amicus should provide an additional defense against such claims.”
In late December, Cline — a prominent attorney in national defense cases, helping represent Iran Contra figure Oliver North, accused Chinese spy Wen Ho Lee, and Dick Cheney aide Lewis “Scooter” Libby — quit his position as a FISC adviser, writing that in more than two years he had never been asked by the court or its appellate body to weigh in on a case.
In his resignation letter, Cline wrote that he believed some of the other amici were also never asked for input and the rest weighed in on “only a small handful of matters.”
“I am concerned that my continued service as amicus might create the impression that I am participating in the courts’ work, when in fact I am not,” he wrote.
“I hope that, whatever else comes of the controversy over the Page FISC order, it will introduce some appropriate transparency into the FISA process,” Cline told the Examiner. “Congress should exercise greater public oversight over the FISA process, consistent with legitimate national security concerns; and ... the FISC — or Congress, if the FISC declines to act — should expand the role of amici curiae."
Although Cline said he could imagine objecting to the legal basis for surveilling Page, he said the fact that court files remain classified makes it difficult to say for sure.
“It’s hard to know for sure what arguments were available because we haven’t seen the full [Page warrant] application — only the [House Intelligence Committee] majority’s interpretation of portions of it,” Cline said. “Once the [committee] minority memo is out — assuming President Trump releases it — we’ll have a better idea what the Page FISA application actually contained and what arguments an amicus could have made against issuance of the FISA order.”