Secret Surveillance Court Rebukes FBI, DOJ With Order To Re-Validate Their Work
Tuesday, December 17, 2019
Updated at 6:20 p.m. ET
The secret court that oversees intelligence collection upbraided the FBI and Justice Department on Tuesday with a highly unusual order for them to re-validate their work.
The extraordinary order, signed by Judge Rosemary Collyer, presiding judge of the Foreign Intelligence Surveillance Court, requires officials to submit an explanation in writing about how they're remediating the problems identified by the recent inspector general report about the Russia investigation.
Federal law enforcement leaders have until Jan. 10 to file a sworn submission about what they have done, or plan to do, "to ensure the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application," she wrote.
Collyer also ordered a timetable for reforms and "an explanation of why, in the government's view, the information in FBI applications submitted in the interim should be regarded as reliable."
The judge, in short, ordered federal law enforcement officials to explain why the court should trust what they submit when they're requesting warrants to collect the communications of people who figure in investigations.
Doubt about the FBI and Justice Department's practices exploded followed the release of a report by Inspector General Michael Horowitz that found 17 omissions or other problems with the filings connected to Carter Page, who served as a junior foreign policy aide to Donald Trump's campaign for a time in 2016.
Investigators sought, obtained and renewed a warrant for Page into 2017, but as Horowitz documented, they left out vital information that might have prompted the judges involved to reach a decision other than authorizing the surveillance.
Horowitz and his investigators didn't opine as to whether judges might have rejected the surveillance if they'd been in possession of the full facts, but Collyer's order on Tuesday suggested that she was among the critics of the FBI and DoJ practices described in the report.
"The FBI's handling of the Carter Page applications, as portrayed in the OIG report, was antithetical to the heightened duty" required of investigators, Collyer wrote.
Other critics observed that Tuesday was only the latest sign of problems with the secret court or the Foreign Intelligence Surveillance Act, the law that governs it and the activities of the agencies involved.
"This was not the first time the government abused its surveillance powers, nor was it the first time the intelligence court was made aware of surveillance abuses," said Neema Singh Guliani, senior legislative counsel for the American Civil Liberties Union.
She cited findings and admissions from an earlier era, in 2001 and 2000, about problems with surveillance applications. (Guliani's initial statement mistakenly referred to 2002, rather than 2000.)
"Congress must radically reform the FISA process to increase accountability, and to ensure that there is a meaningful opportunity to challenge the government's allegations in FISA applications," said Guliani. "We can't trust the secret intelligence court alone to police this process."
Feds vow reform
FBI Director Christopher Wray already has vowed that the FBI will adjust its procedures in response to the IG report. Wray also has said that the bureau may discipline people in connection with their actions in the Russia case.
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., and other supporters of Trump have condemned the FBI and Justice Department over the Russia investigation.
Trump and some other critics have blamed the Russia imbroglio on a few conspirators within officialdom who acted out of political animus toward Trump.
Horowitz did not find, however — as Trump often has charged — that the case was politically motivated, a "hoax" or a "witch hunt."
The big picture of the investigation, which later came to be led by then-special counsel Robert Mueller, was one opened properly and pursued largely by the books, Horowitz said.
Democrats in Graham's hearing sought to zoom back from the heavy focus on Page and underscore what they called the importance of the big picture: that the Russian attack on the election was real, that Mueller's findings are not in dispute and that the peril of foreign interference endures.
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