F.B.I.’s Proposed Fixes Are Inadequate, Expert Tells Surveillance Court
Jan. 15, 2020
The fallout continues from an inspector general’s findings that the bureau botched wiretap applications in the Russia investigation.
WASHINGTON — The F.B.I.’s plan to fix problems with its national security surveillance do not go far enough, an expert in surveillance law told a secretive court on Wednesday.
Steps that the bureau listed in a filing last week fail to adequately ensure that judges receive a complete and accurate portrait of the facts about suspects before deciding whether to let the F.B.I. invade their privacy, David S. Kris, an expert in the Foreign Intelligence Surveillance Act, or FISA, told the court in a 15-page brief .
“The F.B.I.’s proposed corrective actions are insufficient and must be expanded and improved in order to provide the required assurance to the court,” Mr. Kris wrote. The court appointed him to critique the F.B.I.’s proposal to overhaul how it goes about seeking national security wiretaps after an inspector general report about the Trump-Russia investigation last month revealed flaws in the process.
In his most significant additional proposal, Mr. Kris suggested that the court consider ordering the F.B.I. to change its policy on who signs the factual affidavit that accompanies a wiretap application in a counterintelligence or counterterrorism investigation. An agent based at the field office running the case should sign it, not a supervisor at F.B.I. Headquarters in Washington, as is currently the case, Mr. Kris said.
The idea is that if the responsible officials are closer to and more directly familiar with cases, they will be more likely to spot errors or omissions in the draft document that case agents compile.
“This would represent a major change in practice, with potentially profound consequences, because it would tend to shift responsibility away from F.B.I. Headquarters in particular cases,” Mr. Kris wrote. “It therefore should not be undertaken lightly. The F.B.I.’s recent failures, however, are egregious enough to warrant serious consideration of significant reform.”
An F.B.I. spokeswoman declined to comment on Mr. Kris’s filing.
The conflict follows the release last month of scathing findings about FISA wiretap applications targeting Carter Page, a former Trump campaign foreign policy adviser, in the report by the Justice Department’s independent inspector general detailing his examination of aspects of the Russia investigation.
While the inspector general, Michael E. Horowitz, found no conspiracy by high-level F.B.I. officials to sabotage Mr. Trump out of political bias — contrary to the narrative that Mr. Trump and his allies have pushed — they did uncover serious problems in the Page wiretap applications.
The F.B.I. cherry-picked the evidence about Mr. Page , including omitting important facts that raised doubts about its suspicion that he might be a secret Russian agent. The Justice Department passed that misleading summary of the facts on to the FISA court.
Mr. Horowitz found no evidence that political bias — as opposed to gross incompetence or confirmation bias — was behind the bungling. But he rejected as unsatisfactory the explanation that the agents were busy on other aspects of the Russia investigation.
The F.B.I. filing last week described 12 steps the bureau is taking to make sure that any potentially relevant and mitigating information reaches the court in future applications, like enhancing training and expanding verification forms and checklists that agents must fill out.
Mr. Kris also made a series of smaller suggestions to improve those ideas, like imposing a deadline for the F.B.I. to carry out one of its proposed changes, which the bureau had not included in its filing, and ordering it to provide regular updates on its progress.
Mr. Kris has written extensively about FISA, a notoriously complex law, and he led the Justice Department’s National Security Division in the first term of the Obama administration. He was appointed to help the court analyze the F.B.I.’s proposal by Judge James E. Boasberg, an Obama appointee selected by Chief Justice John G. Roberts Jr. of the Supreme Court to serve as the FISA court’s presiding judge starting this year.
President Trump criticized the selection of Mr. Kris over the weekend in a dispute that traces back to a 2018 memo attacking the Page FISA applications by Representative Devin Nunes, Republican of California and a staunch Trump ally. He was then the chairman of the House Intelligence Committee.
Mr. Kris criticized Mr. Nunes’s memo at the time as “dishonest” and “disgraceful and dangerous nonsense.” But Mr. Nunes’s allies have portrayed Mr. Horowitz’s findings as vindicating him, and on Jan. 12, Mr. Nunes told Fox News that Mr. Kris had a history of “defending dirty cops” and labeled his appointment “another misstep,” calling for the FISA court to be abolished.
Mr. Trump echoed the attack in a Twitter post , writing: “You can’t make this up! 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!”
Complicating matters, however, some claims about the F.B.I. in Mr. Nunes’s memo, which Mr. Kris critiqued, were substantially different from the problems the inspector general later uncovered and condemned.
For example, Mr. Nunes’s major claim was that the Justice Department had cited political opposition research financed by Democrats — the so-called Steele dossier — without identifying its funders or telling the court that the information had political origins.
But when the applications were declassified, it turned out that investigators included a lengthy footnote telling the court that the material had been gathered by someone whose employer was most likely looking for information that would harm Mr. Trump’s campaign.
Despite its criticism of the F.B.I.’s handling of the Steele dossier in other respects, the report explained that investigators drafted this footnote to inform the court about the potential bias and portrayed the fact that it did not name Christopher Steele’s clients as standard procedure.
Last month, Mr. Kris reassessed his criticism of Mr. Nunes in light of the report. Mr. Kris said he continued to believe that Mr. Nunes’s specific claim about whether the F.B.I. deceived the court about the Steele dossier’s political origins was “extremely misleading and inappropriate, especially for an oversight committee chairman.”
But he acknowledged that in broader strokes, “the inspector general’s report shows that there were significant failures in the FISA applications, and some of those failures relate to Nunes’s other criticisms.”
Adam Goldman contributed reporting.
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