Senators zero in on shadowy court at center of IG report

A shadowy court is emerging as a top target following an inspector general report on the FBI’s probe into Trump campaign associates.

Lawmakers are calling for reforms to the Foreign Intelligence Surveillance Court (FISA court) and the warrant application process after Justice Department Inspector General Michael Horowitz found that the FBI was able to mislead the courts to surveil Trump adviser Carter Page.

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said Thursday that his panel would look at legislation to implement more “checks and balances” in the FISA hearing process.

“The goal is to make sure this doesn’t happen again, so you tighten up the system right,” Graham said. “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.” 

Sen. Dick Durbin (D-Ill.), when asked if he thought there was bipartisan interest on FISA reform, said, “I hope so.” 

“This was a real wake-up call that three different teams can screw this up at the FBI,” added Durbin, a member of the Judiciary Committee. 

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 FISA court, authorized under the Foreign Intelligence Surveillance Act of 1978, is made up of 11 judges who serve seven-year terms and are selected by the chief justice of the Supreme Court. The judges are responsible for signing off, or not, on warrant applications submitted as part of intelligence gathering and national security operations.

But more often than not, they sign off.

The government filed 1,117 warrant applications to the FISA court last year, including 1,081 that requested electronic surveillance. The court approved 1,079 that included requests for electronic surveillance, according to a Justice Department report.

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.

But the push for FISA court reforms could win over Republicans who usually aren’t supportive of reining in surveillance authorities. GOP senators this week tipped their hats to their libertarian-minded colleagues, who have pushed for reforms largely without success in the years since the 9/11 attacks. 

GOP Sens. Thom Tillis (N.C.) and Ben Sasse (Neb.) said Sen. Mike Lee (R-Utah) accurately predicted the potential for FISA abuse. 

“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,” Sasse said during the Horowitz hearing.

Sasse added that Horowitz’s findings sparked a “massive crisis of public trust,” because it raised questions about what happened within low-profile FISA applications that wouldn’t draw the same level of scrutiny. 

Tillis also told Lee, “We’ve now seen the abuses we were warned about, you can smirk again, you were right.” 

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.”

Horowitz recommended the FBI strengthen its procedures on initial FISA applications and renewal applications, including needing to reverify factual assertions in previous applications and urging the FBI to review the performance of all employees linked to the Page investigation. 

FBI Director Christopher Wray has already announced that he is implementing 40 corrective steps, including how the bureau uses the Foreign Intelligence Surveillance Act to apply for surveillance applications. The agency is also making “significant changes” to its Confidential Human Source Program to improve how it collects, documents and shares information about those sources. 

One legislative push asked for by Horowitz during the hearing was for the Justice Department inspector general to be able to investigate misconduct by attorneys within the department, which current law prohibits it from doing. That idea has garnered bipartisan support on the Senate Judiciary Committee.

But Graham appeared skeptical that Wray would be able to convince lawmakers that he would be able to change the culture within the FBI. 

“The people who did this stuff have to be held accountable. That’s just as important as changing the law. Those who took the law in their own hands and lied to the court and manufactured evidence, they need to pay a price as a deterrent,” Graham said. “That means people have to get fired and some people have to go to jail.”