FISA Court Falls Under Congressional Scrutiny Following IG Report

The shadowy Foreign Intelligence Surveillance Court (FISA court) and the processes behind obtaining a warrant from it has fallen under harsh scrutiny by lawmakers following the release of the DOJ Inspector General’s report which found that the FBI was able to easily mislead the judges to surveil Trump adviser Carter Page.

“The goal is to make sure this doesn’t happen again, so you tighten up the system right,” said Senate Judiciary Chairman Lindsey Graham (R-SC), adding: “Quite frankly, I’m looking at the FISA court itself. … I’m looking for the court to tell the public, ‘Hey, we’re upset about this too,’ and, you know, take some corrective steps.”

Graham said his committee will look into legislation to introduce more “checks and balances” to the FISA process, according to The Hill.

When asked if he thought there would be bipartisan support for FISA reform, Sen. Dick Durban (D-IL) said “I hope so,” adding “This was a real wake-up call that three different teams can screw this up at the FBI.”

The renewed interest comes after five hours of partisan barb trading during a Judiciary hearing Wednesday with Horowitz that resulted in one clear bipartisan interest: overhauling the FISA court.

“One of the only points I’ve heard with bipartisan agreement today is a renewed interest in reforming the FISA process,” said Sen. Christopher Coons (D-Del.). –The Hill

Created under the Foreign Intelligence Surveillance Act of 1978, the FISA court is made up of 11 judges who are chosen by the chief justice of the Supreme Court to serve seven-year terms. They are responsible for approving warrant applications for intelligence gathering purposes and national security operations, which – as The Hill notes, “more often than not, they sign off.”

And in the case of Carter Page, the FISA judges initially denied a warrant to surveil the former Trump aide until the agency padded the application with the wildly unverified Steele Report, lying about Steele’s credibility, and then fabricating evidence to specifically say Page was not an “operational contact” for the CIA, when in fact he was – and had a “positive assessment.”

Last year the government filed 1,117 FISA warrant applications, including 1,081 for electronic monitoring. The court signed off on 1,079 according to a DOJ report.

That said, reform may come slowly.

But the timeline for any legislative reforms is unclear. Congress already faces a mid-March deadline to extend expiring surveillance authorities under the USA Freedom Act.

Durbin suggested the discussions could merge, while Sen. Ron Wyden (D-Ore.), a longtime privacy advocate, appeared skeptical that Republicans would ultimately get on board with broader changes to surveillance powers.

“Why after YEARS of blocking bipartisan FISA reforms are senior Republicans suddenly interested in it? There is no question that we need to improve transparency, accountability and oversight of the FISA process,” Wyden tweeted. –The Hill

Still, the IG report appears to have ‘enlightened’ some GOP lawmakers who previously resisted the notion of reining in FISA courts. Several GOP senators gave credit to their libertarian-minded colleagues on the hill, who have pushed for surveillance reform after accurately predicting the potential for abuse.

Those who have long-advocated for reform include GOP Sens. Thom Tillis (N.C.) and Ben Sasse (Neb.), according to Sen. Mike Lee (R-UT).

“I wish Mike Lee weren’t sitting here two people from me right now, because as a national security hawk I’ve argued with Mike Lee in the 4 1/2 or five years that I’ve been in the Senate that stuff just like this couldn’t possibly happen at the FBI and at the Department of Justice,” said Sasse during the Horowitz testimony, who added that the IG’s findings marked a “massive crisis of public trust” since we should know about FISA applications that aren‘t as high-profile as Page’s.

Horowitz reported a total of 17 “significant inaccuracies and omissions” in the applications to monitor Page, taking particular issue with applications to renew the FISA warrant and chastising the FBI for a lack of satisfactory explanations for those mistakes.

Horowitz stressed that he would not have submitted the follow-up applications as they were drafted by the FBI. Kevin Clinesmith, an FBI lawyer, altered an email related to the warrant renewal application, according to Horowitz’s report.

“[The] applications made it appear as though the evidence supporting probable cause was stronger than was actually the case,” Horowitz said. “We also found basic, fundamental and serious errors during the completion of the FBl’s factual accuracy reviews.“

Horowitz also found that there were errors that “represent serious performance failures by the supervisory and non-supervisory agents with responsibility over the FISA applications.” –The Hill

Let’s not forget that FISA court judge Rudolph Contreras recused himself from overseeing the case of former national security adviser Michael Flynn due to his personal friendship with former FBI counterintelligence agent Peter Strzok.

And the only reason Contreras did so was because his friendship with Strzok was revealed in their anti-Trump text messages found by the Inspector General.