investigation, the possibility of conducting a defensive briefing for the Trump campaign on Russian activities. The Review says that:
We did not identify any Department or FBI policy that applied to this decision and therefore determined that the decision whether to conduct defensive briefings in lieu of opening an investigation, or at any time during an investigation, was a judgment call that is left to the discretion of FBI officials.
It went on to suggest that it would be desirable to give “senior Department leadership the opportunity … to consult with the FBI about whether to conduct a defensive briefing in a circumstance such as this one.”[1]
The Department and the FBI have taken steps to address this issue. First, the Attorney General has instructed the FBI Director to promulgate procedures concerning defensive briefings. The purpose of this requirement is “[t]o address concerns” that U.S. persons “may become unwitting participants in an effort by a foreign power to influence an election or the policy or conduct” of the government.[2] Second, the FBI has established a Foreign Influence Defensive Briefing Board (“FIDBB”). The FBI is
continuing [its] newly implemented review process for malign foreign influence defensive briefings, and in particular briefings to Legislative and Executive Branch officials. This will encompass actions taken after receipt of specific threat information that identifies malign foreign influence operations – that is, foreign operations that are subversive, undeclared, coercive, or criminal – including convening the [FIDBB] to evaluate whether and how to provide defensive briefings to affected parties. To determine whether notification is warranted and appropriate in each case, the FIDBB uses consistent, standardized criteria guided by principles that include, for example, the protection of sources and methods and the integrity and independence of ongoing criminal investigations and prosecutions.[3]
C. The Foreign Intelligence Surveillance Act (“FISA”)
FISA permits the government to seek authority from the FISC to use a range of investigative techniques.[4] For the installation and use of pen register and trap and trace devices, which are relatively unintrusive, FISA requires that the information likely to be obtained
- ↑ See Redacted OIG Review at 348 & n.482.
- ↑ Attorney General Memorandum, Supplemental Reforms to Enhance Compliance, Oversight, and Accountability with Respect to Certain Foreign Intelligence Activities of the Federal Bureau of Investigation at 3 (Aug. 31, 2020) (hereinafter “Supplemental Reforms Memorandum”).
- ↑ See Redacted OIG Review, Appendix 2, The FBI’s Response to the Report, at 433 (Dec. 6, 2019) (emphasis added).
- ↑ FISA contains provisions related to numerous intelligence collection activities. The principal provisions of the statute are codified at 50 U.S.C. §§ 1801–1812; 1821–1829; 1841–1846; 1861–1864; 1871–1874; 1881–1881g; 1885–1885c.
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