Scathing Report Puts Secret FISA Court Into The Spotlight. Will Congress Act? | WYPR

Scathing Report Puts Secret FISA Court Into The Spotlight. Will Congress Act?

Dec 22, 2019

Even by the secretive standards of U.S. national security, the court that oversees government surveillance in terrorism and espionage investigations is cloaked in mystery.

The Foreign Intelligence Surveillance Court, also known as the FISA Court — for the Foreign Intelligence Surveillance Act, which governs it — operates completely out of sight.

That means secrecy surrounds every case in which the FBI goes to the court to get approval to wiretap an American — or foreigner — on U.S. soil who's suspected of spying for a foreign power or belonging to a terrorist group.

But this month, Justice Department Inspector General Michael Horowitz gave the public a rare behind-the-scenes look in his report on the early stages of the Russia investigation.

What he found were serious errors with the FBI's surveillance on former Trump campaign aide Carter Page. He documented 17 significant inaccuracies and omissions in the bureau's applications to wiretap Page.

"We found that investigators failed to meet their basic obligations of ensuring that the FISA applications were scrupulously accurate," Horowitz told lawmakers.

Information that supported the FBI's case to eavesdrop on Page was given to the court, while information that undercut it was left out.

Those findings have fueled calls for reforms to how the FISA process works.

One of the most noteworthy advocates for change is Sen. Lindsey Graham, R-S.C., chairman of the Senate Judiciary Committee.

"I'd hate to lose the ability of the FISA court to operate at a time when we need it most," Graham told Horowitz at a hearing days after the inspector general's review came out. "But after your report, I have serious concerns about whether the FISA court can continue unless there's fundamental reform."

Longtime critics: Where you been?

For longtime critics of the FISA process, the problems unearthed by the inspector general point to what they've said all along were deeper issues with national security surveillance.

Elizabeth Goitein, the co-director of the Liberty and National Security program at the Brennan Center for Justice, noted that Horowitz did not find evidence that the Page surveillance was the result of political bias.

"That means that his kind of shading of the facts is most likely par for the course in FISA applications," Goitein said.

"What we have to worry about is that the system is so secretive and so one-sided — where the FISA court hears only from the government — that these kinds of distortions can go undetected."

It took a nearly 20-month investigation by the inspector general to bring them to light in this instance. But now that these errors are public, they have attracted the attention not only of lawmakers and outside critics, but the court's own leaders.

The FISA court's chief judge, Rosemary Collyer, released a rare public order last week rebuking the FBI over its actions in the Page case.

The court was created in 1978 to oversee national security investigations and protect Americans' constitutional rights. The judges make a call on whether probable cause exists to collect someone's communications based on the information provided by the FBI and Justice Department.

The government, therefore, has what Collyer called a "heightened duty of candor" — an obligation to be forthcoming and scrupulously accurate.

In the Page case, she says, it was not.

Collyer ordered the government to tell the court by January 10 what it has done so far and what it plans to do to ensure such inaccuracies and omissions don't happen again.

Federal Judge Rosemary M. Collyer rebuked the FBI and Justice Department over their practices involving one warrant in the Russia investigation.
Charles Dharapak / ASSOCIATED PRESS

Concerns over the big picture

She also pointed to worries about a broader issue: the frequency of the FBI's misrepresentations in the Page matter raised questions about the accuracy of its other surveillance requests.

It's a point that lawmakers, such as Sen. Ben Sasse, R-Neb., have also made.

"If the American people hear this and they say, 'This can happen against a campaign for the presidency of the United States' what happens in an ordinary FISA case?"

For civil liberties advocates, such questions about FISA are not new.

They have long expressed concern about the government's use of intrusive surveillance on Muslim Americans, for example.

But the Page case has registered with congressional hawks in a way those concerns seldom did. Sasse and other lawmakers who have defended national security surveillance in the past now say Congress may need to make changes to FISA.

And lawmakers will soon have a chance to do so. Three parts of FISA are set to expire in March.

The Brennan Center's Goitein says that gives members of Congress who have long opposed FISA reform a chance to address the problems raised by the inspector general's report.

"So we'll see if they've had a change of heart, whether they're actually going to build in greater civil liberties protections or whether all of this talk about FISA reform was just political posturing."

One longstanding question has been whether there should be an advocate for defendants at the time authorities are requesting a warrant.

Today, FISA judges hear from government attorneys making the case for why investigators suspect someone and why they believe they're justified in conducting surveillance. But that process is secret, and the subject isn't notified even after the surveillance has ended.

So one issue for members of Congress is whether there should be a standing advocate who challenges the Justice Department's requests on behalf of the subjects involved in order to give the FISA judges a counter-position to consider.

An invaluable authority, feds argue

For all the talk of reform, those who have used FISA to track foreign spies and terrorists say it is in many ways irreplaceable.

"FISA is an incredibly important tool," said Stephanie Douglas, a former FBI executive assistant director for the National Security Branch. "Not just in counterintelligence investigations. It's also a very important tool in counterterrorism investigations and even some cyber investigations."

Douglas, who now works for Guidepost Solutions, says the process for getting FISA orders may need to be tightened, but she warns against tossing out FISA entirely.

That's the line from FBI director Christopher Wray as well.

He says he's ordered "corrective steps" to fix the FBI's FISA process. The goal, he says, is to make sure that the information presented to the court is verified, reviewed and accurate.

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LULU GARCIA-NAVARRO, HOST:

Even by the secretive standards of U.S. national security, the Foreign Intelligence Surveillance Court is cloaked in mystery. It oversees government surveillance on American soil in terrorism and espionage investigations. But a recent report from the Justice Department's inspector general has raised questions about how the court protects the rights of Americans and whether it needs to be reformed. NPR justice correspondent Ryan Lucas brings us this report.

RYAN LUCAS, BYLINE: When the FBI wants to wiretap an American suspected of spying for a foreign power or belonging to a terrorist group, it needs to get court approval. That comes from the Foreign Intelligence Surveillance Court, also known as the FISA Court. That approval process plays out in secret behind closed doors. There are now growing calls to change how this works, including from Chairman of the Senate Judiciary Committee Lindsey Graham.

(SOUNDBITE OF ARCHIVED RECORDING)

LINDSEY GRAHAM: I'd hate to lose the ability of the FISA Court to operate at a time, probably, when we need it the most. But after your report, I have serious concerns about whether the FISA Court can continue unless there is fundamental reform.

LUCAS: The report Graham refers to there is Justice Department Inspector General Michael Horowitz's review of the early days of the Russia investigation. Horowitz's report came out last week. And it focuses, in part, on the FBI surveillance of former Trump campaign adviser Carter Page. What Horowitz discovered was 17 significant inaccuracies and omissions in the FBI's applications to wiretap Page.

(SOUNDBITE OF ARCHIVED RECORDING)

MICHAEL HOROWITZ: We found that investigators failed to meet their basic obligations of ensuring that the FISA applications were scrupulously accurate.

LUCAS: Information that supported the FBI's case was given to the court, while information that undercut it was left out. For longtime critics of the FISA process, the problems the inspector general unearthed point to what they say are deeper issues with national security surveillance. Here's Elizabeth Goitein of the Brennan Center for Justice.

ELIZABETH GOITEIN: The way the system is built enables this kind of one-sided presentation that results in violations of the privacy of Americans.

LUCAS: The problems with the Page case have generated blowback, including from the FISA Court itself. The court's chief judge, Rosemary Collyer, issued a rare public order this week that sharply rebuked the FBI. She said the bureau has an obligation to be fully forthcoming with the court, and in the case of Page, it most definitely was not. She has ordered the government to tell the court by January 10 what it plans to do to make sure inaccuracies and omissions don't happen again.

There was a line tucked inside her order that pointed to a broader issue, as well. She said the frequency of the FBI's misrepresentations raises questions about the accuracy of its other surveillance requests. It's a point that lawmakers, including Republican Senator Ben Sasse, have also made.

(SOUNDBITE OF ARCHIVED RECORDING)

BEN SASSE: If the American people hear this and they say this can happen against a campaign for the presidency of the United States, what happens in an ordinary FISA case?

LUCAS: For civil liberties advocates, such questions about FISA are not new. They have long expressed concerns about the government's use of intrusive surveillance on, say, Muslim Americans. But the Page case has registered with congressional hawks in a way those concerns never did.

Sasse and other lawmakers who have defended national security surveillance in the past now say Congress may need to make changes to FISA. And lawmakers will soon have a chance to do so. Three parts of FISA are set to expire in March. The Brennan Center's Goitein says that gives members of Congress a chance to address the problems raised by the inspector general's report.

GOITEIN: So we'll see if they've had a change of heart, whether they're actually going to build in greater civil liberties protections or whether all of this talk about FISA reform was just political posturing.

LUCAS: For all the talk of reform, those who have used FISA to track foreign spies and terrorists say it is, in many ways, irreplaceable.

STEPHANIE DOUGLAS: FISA is an incredibly important tool...

LUCAS: That's Stephanie Douglas. She used to be in charge of the FBI's national security branch.

DOUGLAS: ...Not just in counterintelligence investigations but also a very important tool in counterterrorism investigations and even some cyber investigations.

LUCAS: Douglas, who now works for Guidepost Solutions, says the process for getting FISA orders may need to be tightened. But this kind of surveillance power shouldn't be tossed out entirely. That's the line from FBI Director Christopher Wray, as well. He says he's ordered corrective steps to fix the FBI's FISA process. The goal, he says, is to make sure that the information presented to the court is verified, reviewed and accurate.

Ryan Lucas, NPR News, Washington. Transcript provided by NPR, Copyright NPR.