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Amid partisan warfare over Russia probe, lawmakers agree FISA reforms needed

Department of Justice Inspector General Michael Horowitz testifies before the Senate Judiciary Committee on Dec. 11, 2019. (CNN Newsource)
Department of Justice Inspector General Michael Horowitz testifies before the Senate Judiciary Committee on Dec. 11, 2019. (CNN Newsource)
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The release of Department of Justice Inspector General Michael Horowitz’s long-awaited report on the FBI’s investigation of Russian interference in the 2016 election and its surveillance of a former aide to President Donald Trump’s campaign has fueled a heated partisan debate over the extent to which the 480-page document refuted the president’s claims of a politically-motivated conspiracy to spy on his campaign.

But the political theater on Capitol Hill this week threatened to overshadow a central point of Horowitz’s report: that safeguards put in place to protect Americans from inappropriate government surveillance appear to have utterly failed multiple times and need to be fixed.

“The inquiry into the Trump campaign and Carter Page was correctly predicated... I think it’s a shame the process has been used in the internecine battles between Republicans and Democrats surrounding impeachment,” said Claire Finkelstein, director of the Center for Ethics and the Rule of Law at Penn Law School. “There are legitimate concerns, but they are not concerns that go to the legitimacy of the investigation.”

Although Horowitz cleared FBI officials of allegations that the Crossfire Hurricane investigation was driven by political bias, he made clear at a Senate Judiciary Committee hearing Wednesday that no one involved should feel vindicated by his office’s findings. The inspector general’s review uncovered many disturbing lapses in procedures as investigators compiled applications to wiretap former Trump foreign policy adviser Carter Page.

“In our view, this was a failure of not only the operational team, but also of the managers and supervisors, including senior officials, in the chain of command,” his report stated.

Amid fiery rhetoric and pointed questions about election meddling, political views, and intrusive surveillance, senators from both parties suggested this case calls into question whether the process for obtaining Foreign Intelligence Surveillance Act warrants is broken.

“I have serious concerns about whether the FISA court can continue unless there’s fundamental reform,” said Chairman Sen. Lindsey Graham, R-S.C., likening the alleged abuses to the FBI spying on civil rights activists under Director J. Edgar Hoover.

Investigators obtained a FISA order to wiretap Page in October 2016 and the permission for surveillance was renewed three times in the following year. Horowitz’s review provided an unusually in-depth look at the applications and the evidence within them, and the results were troubling for national security experts, civil rights advocates, and many members of Congress.

“For many of us who’ve been FISA people for a long time, it came as a surprise and a disappointment,” said William Banks, founding director of the Institute for National Security and Counterterrorism and professor emeritus at Syracuse University.

When concerns have been raised about FISA in the past, proponents have often stressed how thoroughly FISA applications are vetted before they are submitted to the Foreign Intelligence Surveillance Court. However, Horowitz identified at least 17 “significant errors and omissions” in the four Page FISA applications.

Those missteps included the submission of incomplete or misleading information, omission of potentially exonerating facts, and failure to inform the court when information previously submitted turned out to be wrong. In many cases, this involved the use of unverified claims taken from a dossier of raw intelligence produced by former British spy Christopher Steele, whose work was indirectly funded by Democratic nominee Hillary Clinton’s campaign.

Horowitz found agents improperly inflated Steele’s credibility, passed on his allegations without confirming them, and did not update renewal applications when they learned of information casting doubt on his reporting. While he did not find clear evidence that these failures were intentional or politically-motivated, he also noted his team did not receive “satisfactory” explanations for them.

“In most instances, the agents and supervisors told us that they either did not know or recall why the information was not shared with OI, that the failure to do so may have been an oversight, that they did not recognize at the time the relevance of the information to the FISA application, or that they did not believe the missing information to be significant,” the report stated.

Former intelligence officer Rep. Will Hurd, R-Texas, said the misconduct Horowitz found should raise grave concerns for Americans, regardless of what motivated it. In particular, he pointed to the failure to notify the FISC that Page had previously provided information to the CIA about his contacts with Russians.

“Carter Page was an individual who thought he was actually helping the government,” he said. “He was working for one intelligence service against the Russians, and the FBI was trying to say he was working with the Russians. To me as a former intelligence officer, that’s insane that was missed.”

If the Fourth Amendment rights of a former aide to the president could be violated like this, Hurd warned anyone’s privacy could be at risk.

“What is going to happen to a congressman who speaks out against an administration?” he asked. “What’s going to happen to a Hollywood actor that speaks out against an administration? What’s going to happen to a teacher protesting for something? The protection of our privacy gives us our ability to speak truth to power.”

FISA was passed in 1978 to require investigators to go before a special court to get approval for domestic surveillance in national security investigations. The highly-secretive courts rarely reject applications, but former FBI officials say that is partly because the verification process agents go through before submitting applications is so extensive.

“If you’re the agent putting together a FISA application, you’re not going to bring it to the court unless you have enough to get it approved... It’s not just a rubber stamp,” said John Iannarelli, a former FBI special agent and national spokesperson.

Under so-called “Woods procedures,” agents are required to confirm every fact included in an application before submitting it and make clear to the court where they got it.

“Every time there’s a factual statement within the document, you’re supposed to make reference in the application to where that fact is documented in an FBI file,” said David Gomez, a former FBI assistant special agent in charge for national security.

The Carter Page filings exposed severe shortcomings in that process in the Crossfire Hurricane probe. Upon releasing the report Monday, Horowitz initiated a broader audit of FBI compliance with Woods procedures in FISA applications targeting U.S. citizens in counterintelligence and counterterrorism investigations.

“That so many basic and fundamental errors were made by three separate, hand-picked teams on one of the most sensitive FBI investigations that was briefed to the highest levels within the FBI, and that FBI officials expected would eventually be subjected to close scrutiny, raised significant questions regarding the FBI chain of command's management and supervision of the FISA process,” the report stated.

If this was how the FBI handled what everyone involved knew would be one of its most high-profile and heavily-scrutinized cases, some experts fear similar abuses could be occurring regularly in less closely-watched investigations.

“It’s pointing to the possibility that a widespread problem exists in the sense that these Woods procedures are not being followed as closely as they should be,” Gomez said.

Though many were surprised by Horowitz’s findings, longtime critics of the FISA process were not.

“This is just par for the course when it comes to FISA,” said Elizabeth Goitein, director of the liberty and security program at the Brennan Center for Justice. “There is a tendency for the investigators to try to make their case look as strong as possible.”

Goitein added this is not necessarily nefarious on the part of the FBI. Because there is no adversarial review of applications, agents might find it easy to overlook information that does not support their theories.

“It is absolutely predictable investigators are going to become attached to a theory of the case and are going to interpret facts through that lens,” she said.

Given what Horowitz’s investigation found, Iannarelli said an audit of other FISA cases is appropriate, but he is less concerned that the behavior exhibited by the Crossfire Hurricane team is systemic. Due to the sensitive nature of the investigation, it was run out of FBI headquarters by senior officials, including then-Director James Comey, so some typical oversight steps were bypassed.

“It seems like it’s not the FISA court but rather the process that two, three, four people in the FBI, including the director, were following that deviates from the way things should have been done,” Iannarelli said. “Everybody is under the microscope now to make sure they’ve got their I’s dotted and their T’s crossed.”

In response to the inspector general’s report, current FBI Director Christopher Wray announced further restrictions on operating investigations based out of headquarters. Iannarelli believes placing that responsibility in the hands of field agents who handle FISA applications regularly will eliminate opportunities for abuses.

“By making sure the cases always remain with the trained agents... I think that solves your problems right there,” he said.

Wray has made several other changes, including modifying FISA procedures to improve accuracy and completeness, more rigorous assessment of the credibility of confidential human sources, new protocols for FBI participation in intelligence briefings for presidential nominees, and new semiannual training requirements for agents involved in FISA matters.

Banks said it is too soon to tell what, if any, additional system-wide reforms are necessary. Much of that will be dictated by what the audit finds.

“I think we can count on a fair amount of transparency about it,” he added.

According to Goitein, steps recommended by the inspector general’s office, such as additional layers of review to ensure FISA applications are accurate and exculpatory information is included, could easily be adopted without undermining the government’s ability to protect the nation.

“The goal is to catch situations where maybe probable cause doesn’t exist, not to make it harder to make a case where probable cause does exist,” she said.

The public is already wary of the intelligence community’s ability to investigate Americans, and the response to the report from politicians might exacerbate those fears, Finkelstein said, potentially obscuring how important these tools are to national security.

“When Donald Trump says, ‘I’ve been spied on’ and Attorney General Barr says there definitely was spying that went on, I think that resonates with the public on both sides of the political spectrum,” she said, even if those claims are not accurate characterizations of the findings.

The unusual political dynamics surrounding the Horowitz report may actually help advance reforms, according to Goitein. As Wednesday’s Senate Judiciary hearing illustrated, Republicans like Sen. Graham who have long been advocates for expanding government surveillance powers appear to be having second thoughts now that those powers have been deployed to investigate Trump.

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“Conservative members of the committee who never previously showed any concern for subjects of foreign intelligence surveillance are talking about making changes to laws and procedures,” she said. “If they mean it, that’s a good thing.”

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