One last point of law that is covered in more detail in my column. FISA also requires the FBI and Justice Department to satisfy the court that surveillance — highly intrusive eavesdropping on the phone, email, text, and other communications of the alleged agent of a foreign power — is necessary because the information sought “cannot reasonably be obtained by normal investigative techniques.” (See FISA, Section 1804(a)(6)(C).) Such techniques include interviewing the alleged foreign agent.
The Schiff memo acknowledges that the FBI has interviewed Page numerous times over the years, including as late as March 2016 — six months before the FISA warrant. Yet, the Schiff memo fails to explain that Page was a government cooperator in a 2013 investigation of Russian spies, and that his information was used to prosecute the spies. In fact, this is the very matter in which the Russians were trying to recruit Page. I pointed out this out in responding to the Schiff memo’s precursor, a letter from the Intelligence Committee’s senior Democrat, Representative Jerrold Nadler of New York:
On the question of criminality, I note that many commentators point to Page’s involvement in a prior FBI investigation involving Russia, and darkly observe that he “was on the Bureau’s radar screen for years” before the October 2016 FISA warrant application — as if this supposition were a substitute for FISA’s legal requirement of proving criminal activity. But the 2013 investigation into which Page stumbled was a case of Russian agents trying to recruit him as a source. Far from doing anything criminal, Page appears to have cooperated with the FBI and Justice Department to nail the Russian spies. (See the Justice Department’s complaint in United States v. Buryakov, at pp. 12–13 — Page is “Male-1,” whom the Russian spy Victor Podobnyy refers to as an “idiot,” and whose 2013 interview by the FBI is described in paragraph 34.) Again, we don’t know everything the FBI knows, but based on what we have been told, it appears that in the prior case, Page worked with the United States against Russia; that does not jibe with the allegation in the FISA warrant application that he worked with Russia against the United States.
Consider these two facts. First, there is no public indication that Page has ever been unwilling to speak to federal investigators or has ever lied to them in the many times he has been interviewed — unlike, say, Christopher Steele, who was terminated as an informant for violating his agreement about press contacts and for apparently lying to the FBI about speaking to the media. Second, the FBI and Justice Department quite understandably wanted to know whether Page had met with Sechin and Divyekin but were unable to verify Steele’s hearsay claim that he had.
There is no public indication that Page has ever been unwilling to speak to federal investigators or has ever lied to them in the many times he has been interviewed.
With those things in mind, I will close here with the same questions I asked in the column posted last night:
When Steele brought the FBI his unverified allegations that Page had met with Sechin and Divyekin, why didn’t the FBI call Page in for an interview rather than subject him to FISA surveillance?
Given that it is a requirement of federal FISA law that the FBI and Justice Department demonstrate that surveillance is necessary because alternative investigative techniques have been tried and have failed, or would fail if tried, what did the government agents and lawyers tell the FISA court about why interviewing Page would not yield the information they were seeking?
