New findings by the Justice Department inspector general that the FBI has repeatedly violated surveillance rules could impact Congress' pending reauthorization of key powers related to the Foreign Intelligence Surveillance Court (FISC), with top Republican lawmakers already saying the DOJ report will have major consequences for surveillance law.
Several surveillance provisions under the 2015 USA Freedom Act have lapsed in recent weeks, at least temporarily, because the House has not yet passed the Senate's 77-day temporary extension. The House had amended portions of the law in its own proposed three-year reauthorization, but the Senate couldn't reach an agreement on the matter and decided to try to punt the matter so that lawmakers could focus on the coronavirus pandemic.
The three lapsed provisions include the "roving wiretap" power, which enables authorities to obtain a warrant from the FISC without identifying the target, and while following a target from one device to another. Also included is the "lone wolf" power, which allows authorities to obtain a FISA court warrant without demonstrating that the target is working for a foreign entity. A records provision that allows authorities to seize telephone metadata and banking records, among other documents, is also suspended.
The DOJ has called on Congress to renew the surveillance provisions, even as it acknowledged they were not perfect.
“No one was more appalled than the attorney general at the way the FISA process was abused. This abuse resulted in one of the greatest political travesties in American history and should never happen again," Justice Department spokeswoman Kerri Kupec said in a statement. “However, FISA remains a critical tool to ensuring the safety and security of the American people, particularly when it comes to fighting terrorism."
But lawmakers were skeptical, pointing out that the DOJ watchdog had found that FISA problems were systemic at the bureau and extended beyond the FBI's probe into former Trump adviser Carter Page. In four of the 29 cases the DOJ inspector general reviewed, the FBI did not have any so-called "Woods files" at all, referring to mandatory documentation demonstrating that it had independently corroborated key factual assertions in its surveillance warrant applications. In three of those applications, the FBI couldn't confirm that Woods documentation ever existed.
The other 25 applications the DOJ reviewed contained an average of 20 assertions not properly supported with Woods materials; one application contained 65 unsupported claims. The review encompassed the work of eight field offices over the past five years in several cases.
"Unbelievable," wrote Rep. Doug Collins, R-Ga. "Inspector General Horowitz found 4 of the 29 Woods Files were missing... and in 3 instances, it’s possible they never existed. This is exactly why we need to reform our #FISA system. We can’t let what happened to @realDonaldTrump in 2016 ever happen again!"
Sens. Mike Lee, R-Utah, and Patrick Leahy, D-Vt., issued a joint statement saying the DOJ report would impact the surveillance reauthorizations.
“This report also comes at a critical time. In the coming months the Senate will consider extending important surveillance tools authorized in the USA FREEDOM Act of 2015," they wrote. "The FISA process needs real reforms, not window-dressing."
Congress is out of session until mid-April. Senate leaders struck a deal with pro-privacy lawmakers, including Lee, Leahy and Sen. Rand Paul, R-Ky., that will allow them to propose amendments to the House's FISA plan when the Senate is back in session.
"The FISA process needs real reforms, not window-dressing."
Lee and Leahy said they would be sure to “address the issues identified by the inspector general" in their amendments.
Sen. Ron Wyden, D-Ore., who serves on the Senate Intelligence Committee, in March urged an amendment that would prohibit the warrantless collection of web browsing and Internet search history, as well as an amendment establishing independent oversight of the FISA process.
“Under this agreement, the Senate will have an opportunity to debate whether the government can conduct digital tracking of Americans without a warrant," Wyden said. "Everyone who was concerned about the government collecting their library records, or seeing who you called, should be terrified that the government can grab your Internet browsing history without a warrant. That’s wrong, and my amendment prohibits that practice. And I strongly support my colleagues’ amendment to add independent oversight of FISA, which has had bipartisan support for many years and will finally be considered.”
Reps. Warren Davidson, R-Ohio, and Zoe Lofgren, D-Calif., urged the Senate to reject the bill.
President Trump, who has repeatedly noted that Page was extensively monitored under FISA based on information that has since been proven legally inadequate and in some cases fraudulent, has floated the possibility of vetoing a FISA reauthorization should it come to his desk.
Page was surveilled largely because of a discredited dossier funded by the Hillary Clinton campaign and the Democratic National Committee (DNC). An FBI lawyer in that case even falsified a CIA email submitted to the FISA court in order to make Page's communications with Russians appear nefarious, the DOJ inspector general found; and the DOJ has concluded that the Page warrant was legally improper.
The report from the DOJ inspector general last week stood in stark contrast to the years of assurances from top Democrats and media commentators that bureau scrupulously handled FISA warrants.
"It Ain’t Easy Getting a FISA Warrant: I Was an FBI Agent and Should Know," read a 2017 article from former FBI special agent and CNN analyst Asha Rangappa, who spent most of her career as a university admissions administrator. It is unclear whether Rangappa has ever handled a FISA application.
In the piece, Rangappa credulously asserted that FISA applications, after a preliminary exhaustive review, travel "to the Justice Department where attorneys from the National Security Division comb through the application to verify all the assertions made in it. Known as 'Woods procedures' after Michael J. Woods, the FBI Special Agent attorney who developed this layer of approval, DOJ verifies the accuracy of every fact stated in the application."
Rangappa, who repeated the same message on-air multiple times, was not alone in the media in propping up the FISA process. A comprehensive review by The Washington Post's Erik Wemple underscored how Politico national security reporter Natasha Bertrand launched her career in part through ultimately debunked reporting on the Steele dossier.
Wemple's Washington Post itself ended up in the Page FISA application as a key source alongside the dossier. A 2016 opinion piece by the Post's Josh Rogin entitled, "Trump campaign guts GOP’s anti-Russia stance on Ukraine," had overstated developments at the Republican National Convention in 2016. A single delegate had proposed a sweeping amendment to change the GOP platform to provide lethal weapons to Ukraine, in a major shift from the Obama administration's policy; parts of that amendment were rejected.
But, the Post's opinion piece framed the development as nefarious, and a possible smoking gun. In a Page FISA application, the FBI went on to cite Rogin's article word-for-word – without quotation marks, but with a footnoted citation – as evidence that the Trump campaign could be working with the Russians in an illicit manner. The FBI apparently did not obtain independent verification of the article’s claims.
Nevertheless, for several years, Democrats and other analysts at The New York Times, The Washington Post and CNN have repeatedly claimed that key claims in the Clinton-funded anti-Trump dossier had been corroborated and that the document was not critical to the FBI's warrant to surveil Page. Horowitz repudiated that claim, with the FBI's legal counsel even describing the warrant to surveil Page as "essentially a single source FISA" wholly dependent on the dossier.
Among the unsubstantiated claims in the dossier: that ex-Trump lawyer Michael Cohen traveled to Prague to conspire with Russian hackers; that the Trump campaign was paying hackers working out of a nonexistent Russian consulate in Miami; that a lurid blackmail tape of Trump existed and might be in Russian possession; and that Page was bribed with a 19 percent share in a Russian company.