Order

OCR transcription for search; preserved printed pages are authoritative

Filed
United States Foreign
Intelligence Surveillance Court

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# UNCLASSIFIED UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C.

Mayra Peterson, Clerk of Court

IN RE CARTER W. PAGE,
A U.S. PERSON

Docket Numbers:

16-1182, 17-52, 17-375, 17-679

ORDER RESPECTING THE LIMITED DISCLOSURE OF INFORMATION
IN THE CLASSIFIED APPENDIX TO THE REPORT ON MATTERS
RELATED TO INTELLIGENCE ACTIVITIES AND INVESTIGATIONS
ARISING OUT OF THE 2016 PRESIDENTIAL CAMPAIGNS

This matter is before the Court on the Government's Motion to Permit the Disclosure of
Information Contained in the Classified Appendix to the Report on Matters Related to
Intelligence Activities and Investigations Arising out of the 2016 Presidential Campaigns, filed
in the above-captioned dockets on June 7, 2023 ("Motion"). The Court is granting the Motion as
stated herein.

On June 25, 2020, the Court issued an Opinion and Order Regarding Use and Disclosure
of Information entered in the above-captioned four dockets ("June 25, 2020 Order"), which
explained why the results of electronic surveillance and physical search conducted under color of
orders issued in those dockets" were subject to the prohibitions against use or disclosure of the
results of unauthorized surveillance and search set forth in 50 U.S.C. §§ 1809(a)(2) and
1827(a)(2). It is a criminal offense to "intentionally . .. (1) engage[ ] in electronic surveillance

Information acquired under color of the above-captioned dockets, in both minimized and un-minimized (i.e., raw)
form, is referred to as "Page FISA information."

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under color of law except as authorized by" identified statutory provisions, or "(2) disclose[ ] or
use[ ] information obtained under color of law by electronic surveillance, knowing or having
reason to know that the information was obtained through electronic surveillance not authorized"
by FISA or another "express statutory authorization." 50 U.S.C. § 1809(a). It is similarly an
offense to intentionally conduct a physical search under color of law within the United States to
obtain foreign intelligence information, "except as authorized by statute," or intentionally
disclose or use information obtained by such a search, "knowing or having reason to know that
the information was obtained through physical search not authorized by statute, for the purpose
of obtaining intelligence information." 50 U.S.C. § 1827(a). The applications in the above-
captioned dockets involved "material errors and omissions" pertinent "to whether there was
probable cause to believe that Page was an agent of a foreign power." June 25, 2020 Order at 1.
As a result of those deficiencies, the government admitted that "at least the third and fourth Page
FISA applications lacked adequate factual support" and that "the restrictions on use or disclosure
in Sections 1809 and 1827 apply at least to information acquired under color of the third and
fourth dockets. ... " Id. at 4 (internal quotation marks omitted). Because "the government
declined to argue . . . that those provisions do not apply (or apply differently) to information
obtained under the first two dockets," the Court proceeded from the premise that Sections
1809(a)(2) and 1827(a)(2) apply to information acquired under color of all four dockets. Id.

The June 25, 2020 Order also recognized an exception to those prohibitions where use or
disclosure of particular information "has been or can be demonstrated to be necessary to remedy
or deter the types of harm at which §§ 1809 and 1827 are addressed," such as when use or
disclosure is "necessary to avoid similar instances of over-collection . .. or to remedy a prior

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over-collection." Id. at 4, 20 (internal quotation marks omitted and alteration in original).
Furthermore, "Sections 1809 and 1827 would be self-defeating if they were interpreted to
prohibit use or disclosure of [information from unauthorized electronic surveillance or physical
search], even when necessary to investigate and prosecute the very crimes they define." Id. at
19. Pursuant to that exception, the Court permitted use or disclosure of Page FISA information
in certain specified contexts, including "insofar as necessary to effective performance or
disciplinary reviews of government personnel" and "insofar as necessary to investigate or
prosecute potential crimes relating to the conduct of the Page or Crossfire Hurricane
investigations." Id. at 20-21. The latter context, the Court explained, was applicable (but not
limited to) "use by, and disclosure by or to, personnel engaged in the review" of such
investigations then being led by John H. Durham. Id. at 17, 21.

The completion of Mr. Durham's work as Special Counsel has given rise to the
government's current request to disclose a limited amount of Page FISA information under
circumstances not contemplated by the June 25, 2020 Order. Special Counsel Durham has
prepared a final report titled Report on Matters Related to Intelligence Activities and
Investigations Arising out of the 2016 Presidential Campaigns ("Report"). Motion at 1. The
Report is unclassified and has been released to the public; however, there is a Classified
Appendix to the Report, which contains a limited amount of Page FISA information. Id. at 1, 4.
That information "is described in sections of the classified appendix addressing how the FBI
assessed, explained, or excluded potentially relevant information from the Page FISA
applications." Id. at 4.

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Through the underlying Motion, the Government seeks to share the Classified Appendix
with select Members of Congress and limited staff "who have oversight responsibility for FISA,
the FBI, and the Department of Justice." Id. at 8. Towards that end, the Government proposes to
distribute the Classified Appendix, including its Page FISA information, to Members and limited
staff of the House Permanent Select Committee on Intelligence, the U.S. Senate Select
Committee on Intelligence, the House Judiciary Committee, the U.S. Senate Committee on the
Judiciary, and to the Members of Congress identified in 50 U.S.C. § 3093(c)(2). Id. at 6. In the
Government's view, disclosure of the Page FISA information contained in the Classified
Appendix may provide details about how the Government has exercised FISA authorities, and as
a result, may "inform how Congress proceeds in attempting to prevent future unauthorized
collections and violations of §§ 1809 and 1827." Id. at 9. "Accordingly, it is incumbent upon
the Government to provide a fulsome and accurate record of its investigations into the conduct of
Government personnel [involved in the Page or Crossfire Hurricane investigation]." Id. at 9-10.

The Court's previously recognized exception to the prohibitions found in 50 U.S.C. §§
1809(a)(2) and 1827(a)(2), when necessary to remedy or deter the types of harm at which those
sections are addressed, is very limited. "Neither the government nor the Court is free to depart
from the plain meaning of §§ 1809(a)(2) and 1827(a)(2) simply to facilitate actions thought to be
reasonable, or even laudable." June 25, 2020 Order at 20. Here, the disclosure of the Report's
Classified Appendix, including its Page FISA information, to certain Congressional personnel
engaged in ongoing oversight of the Government's exercise of FISA authorities will provide the
complete published results of Special Counsel Durham's investigation, including with respect to
the FBI's FISA activities regarding Page. As such, the Court views disclosure in this narrow

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context as aligning with the purposes for use or disclosure of Page FISA information set out in
the June 25, 2020 Order. See Order Regarding Further Disclosures of Information, Nos. 16-
1182, 17-52, 17-375, 17-679, at 2 (FISA Ct. Nov. 23, 2020) (citing the June 25, 2020 Order and
finding "disclosure of Page FISA information to the Senate Committee on the Judiciary, under
the circumstances described by the government, to be consistent with the parameters for
disclosure previously established by the Court").

The government has marked one paragraph of the Motion as classified at the Secret level.
The rest of the Motion is marked as Unclassified. This Order is marked in the same manner
because it contains information only from the Unclassified paragraphs of the Motion.

Accordingly, IT IS HEREBY ORDERED THAT the Motion is GRANTED as follows:
Notwithstanding the June 25, 2020 Order, the government may give access to the Page FISA
information in the Classified Appendix to members and limited staff of the House Permanent
Select Committee on Intelligence, the U.S. Senate Select Committee on Intelligence, the U.S.
Senate Committee on the Judiciary, and the House Judiciary Committee, and to the members of
Congress identified in 50 U.S.C. § 3093(c)(2), and

IT IS FURTHER ORDERED THAT, in all other respects, the June 25, 2020 Order
remains in effect, including (i) the six-month reporting requirement on the retention, use, or
disclosure of any Page FISA information and (ii) the prohibition on further use or disclosure of
such information (except as permitted by this Order or the June 25, 2020 Order), and

IT IS FURTHER ORDERED THAT, by June 30, 2023, the government shall submit to
the Court a copy of the Motion that is suitable for public release, including any redactions the

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government believes are necessary. If applicable, the submission shall also include a written
explanation of why redactions are necessary.
ENTERED this 9 day of June, 2023.

ANTHONY JCTRENGA
Judge, United States Foreign
Intelligence Surveillance Court

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