FISA court selects former Obama administration lawyer to oversee FBI’s surveillance reforms
Inspector General found that the FBI misled the FISA court to keep Carter Page’s warrant alive; former federal prosecutor Francey Hakes weighs in.
David Kris, who has been appointed by the Foreign Intelligence Surveillance Court (FISC) to oversee the FBI's proposed surveillance reforms on Wednesday alerted the court that the bureau's proposals are "insufficient" and must be dramatically "expanded" -- even declaring that FBI Director Christopher Wray needs to discuss the importance of accuracy and transparency before the FISC every time he "visits a field office in 2020."
The unclassified findings were a stark rebuke to Wray, who had filed assurances to the FISC last week that the agency was implementing new procedures and training programs to assure that the FBI presents accurate and thorough information when it seeks secret warrants from FISC judges. At the same time, Wray acknowledged the FBI's "unacceptable" failures as it pursued Foreign Intelligence Surveillance Act (FISA) warrants to surveil members of the Trump team.
Kris is a former Obama administration attorney who has previously defended the FISA process on "The Rachel Maddow Show" and in other left-wing venues, making his rebuke of Wray something of an unexpected redemptive moment for Republicans who have long called for more accountability in how the bureau obtains surveillance warrants. ("You can’t make this up!" President Trump tweeted on Sunday. "David Kris, a highly controversial former DOJ official, was just appointed by the FISA Court to oversee reforms to the FBI’s surveillance procedures. Zero credibility. THE SWAMP!”)
Wray had specifically promised to change relevant forms to "emphasize the need to err on the side of disclosure" to the FISC, to create a new "checklist" to be completed "during the drafting process" for surveillance warrants that reminds agents to include "relevant information" about the bias of sources used, and to "formalize" the role of FBI lawyers in the legal review process of surveillance warrants.
Additionally, Wray said the FBI would now require "agents and supervisors" to confirm with the Justice Department's (DOJ) Office of Intelligence that the DOJ has been advised of relevant information. Wray further indicated that the FBI would formalize requirements to "reverify facts presented in prior FISA applications and make any necessary corrections," as well as to make unspecified "technological improvements."
But in a 15-page letter to FISC presiding Judge James E. Boasberg, obtained by Fox News, Kris declared that the proposed corrective actions "do not go far enough to provide the Court with the necessary assurance of accuracy, and therefore must be expanded and improved" -- and he took aim at Wray himself.
"The focus on specific forms, checklists and technology, while appropriate, should not be allowed to eclipse the more basic need to improve cooperation between the FBI and DOJ attorneys," Kris said, noting that the FBI and DOJ have historically not always worked well together.
"A key method of improving organizational culture is through improved tone at the top, particularly in a hierarchical organization such as the FBI," Kris said, noting that Wray's public statements on the matter, while positive, have not gone far enough. "Director Wray and other FBI leaders, as well as relevant leaders at the Department of Justice, should include discussions of compliance not only in one or two messages, but in virtually every significant communication with the workforce for the foreseeable future."
Indeed, the FISC "should require the FBI and DOJ to document and report on the nature and extent of this communication; such a requirement to document and report communication may encourage the FBI and DOJ to conduct more of it," he said. Every time Wray "visits a field office in 2020," Kris wrote, he should stress the importance of accuracy in FISA applications.
Top-down culture changes require "ongoing" and sustained efforts, not simply a handful of organizational reforms, Kris emphasized.
Separately, Kris urged the FISC to hold more hearings and involve field agents in those hearings when possible, both to increase accountability and break down communication barriers. However, Kris noted that the bureau needs to be cautious when it implements major changes involving field agents, given its tarnished credibility.
"The single most significant process issue that is not addressed in the government's submission concerns the possibility of using field agents, rather than headquarters agents, as declarants in FISA applicants," Kris went on. "This would represent a major change in practice, with potentially profound consequences, because it would tend to shift responsibility away from FBI headquarters in particular cases."
Such a reform, Kris said, should not be "undertaken lightly," but the "FBI's recent failures ... are egregious enough to warrant serious consideration of significant reform.
"Even if field agents do not serve as declarants in some or all FISA applications, the court should require them in appropriate cases to sign or otherwise attest to the court directly with respect to asserted facts within their purview," Kris said.
In addition to implementing procedures to test the effectiveness of new training modules and case studies set to be implemented by the FBI, Kris asserted that the FISC "should require the government to conduct more accuracy reviews, to expand those reviews, and to conduct a reasonable number of in-depth reviews on a periodic basis." A statistical approach is necessary and feasible, he said, given the FBI and DOJ's "vast resources."
Concerning the changed forms, Kris urged the FISC to "require the government to review, reassess, and report periodically on possible improvements to FISA standards and procedures." The bureau should also be forced to demonstrate that its new forms are "well-designed" and effective," he said.
Overall, Kris echoed the findings of the Justice Department Inspector General (IG), noting that the FBI had "profoundly" and repeatedly "breached its obligation" to provide accurate information to the secret court "through a series of significant and serious errors and omissions" during the Russia probe.
The FISC has ordered an inquiry into the slew of FBI surveillance abuses over the past several years but has stopped short of requiring the bureau to reverify several potentially impacted warrant applications.
For example, DOJ Inspector General Michael Horowitz found specific evidence of oversights and errors by several top FBI employees as they sought to obtain a warrant to surveil former Trump aide Carter Page under the FISA statute; an unidentified FBI supervisory special agent (SSA) mentioned in the IG report was responsible for ensuring that the bureau's "Woods Procedures" were followed in the Page warrant application.
Former Trump advisor Carter Page was surveilled by the FBI for more than a year. The DOJ inspector general has found a slew of problems with the FBI's handling of his warrant application, including the deliberate falsification of key evidence. (Photo by Chip Somodevilla/Getty Images)
According to the procedures, factual assertions need to be independently verified, and information contradicting those assertions must be presented to the court. But Horowitz found several instances in which the procedures were not followed.
Horowitz's report leaves little doubt that the unnamed SSA is Joe Pientka -- a current bureau employee.
The inspector general also noted than an unnamed "Case Agent 1" was "primarily responsible" for some of the "most significant" errors and omissions in the FISA warrant applications and renewals submitted to the FISC to extend the monitoring of Page.
Nevertheless, former FISC Presiding Judge Rosemary Collyer ordered the FBI only to identify "all other matters currently or previously before this Court that involved the participation of the FBI OGC [Office of General Counsel] attorney" mentioned in Horowitz's report.
Additionally, Collyer ordered the FBI to "describe any steps taken or to be taken by the Department of Justice or FBI to verify that the United States’ submissions in those matters completely and fully described the material facts and circumstances" and to advise whether the attorney's conduct "has been referred to the appropriate bar association(s) for investigation or possible disciplinary action."
Those were apparent references to ex-FBI attorney Kevin Clinesmith, whom Horowitz found to have doctored an email from the CIA. The FBI reached out to the CIA and other intelligence agencies for information on Page; the CIA responded in an email by telling the FBI that Page had contacts with Russians from 2008 to 2013, but that Page had reported them to the CIA and was serving as a CIA operational contact and informant on Russian business and intelligence interests.
Clinesmith then allegedly doctored the CIA's email about Page to make it seem as though the agency had said only that Page was not an active source. And, the FBI included Page's contacts with Russians in the warrant application as evidence he was a foreign "agent," without disclosing to the secret surveillance court that Page was voluntarily working with the CIA concerning those foreign contacts.
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Republican calls for more accountability may not go unanswered for long. Connecticut U.S. Attorney John Durham announced last year that he did not "agree" with the IG's assessment that the FBI's probes were properly predicted, highlighting Durham's broader criminal mandate and scope of review.
Durham is focusing on foreign actors, as well as the CIA, while Horowitz concentrated his attention on the Justice Department and FBI.
"Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened," Durham said in his statement, adding that his "investigation is not limited to developing information from within component parts of the Justice Department" and "has included developing information from other persons and entities, both in the U.S. and outside of the U.S."
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