By Andrew O'Reilly, Bill Mears | Fox News
In a rare public order Tuesday, the chief judge of
the Foreign Intelligence Surveillance Court [FISC]
strongly criticized the FBI over its surveillance-application process, giving
the bureau until Jan. 10 to come up with solutions, in the wake of findings
from Justice Department Inspector General Michael E. Horowitz.
The order, from the court's presiding judge Rosemary
M. Collyer, came just a week after the release of Horowitz's withering report
about the wiretapping of Carter Page, a former campaign adviser to President
Trump.
"The FBI's handling of the Carter Page applications,
as portrayed in the [Office of Inspector General] report, was antithetical to
the heightened duty of candor described above," Collyer wrote in her four-page order. "The frequency
with which representations made by FBI personnel turned out to be unsupported
or contradicted by information in their possession, and with which they
withheld information detrimental to their case, calls into question whether
information contained in other FBI applications is reliable."
"As [FBI Director Christopher Wray] has stated, the
inspector general’s report describes conduct by certain FBI employees that is
unacceptable and unrepresentative of the FBI as an institution," the
bureau responded in a statement Tuesday night. "The director has
ordered more than 40 corrective steps to address the report’s recommendations,
including some improvements beyond those recommended by the IG."
Horowitz said he did not find significant evidence
that FBI agents were involved in a political conspiracy to undermine
Trump's candidacy in 2016. However, the report did find numerous errors and
inaccuracies used by FBI agents to obtain permission to monitor Page's phone
calls and emails.
While Collyer's order did not specify exactly what
reforms the FBI needed to implement to its policies for obtaining
permission to wiretap people under the Foreign Intelligence Surveillance
Act, or FISA, the order did say that the FISA court will weigh in on whether
the reforms are deemed sufficient.
"The [FISA court] expects the government to provide
complete and accurate information in every filing with the court," Collyer
wrote. "Without it, the [FISA court] cannot properly ensure that
the government conducts electronic surveillance for foreign intelligence
purposes only when there is a sufficient factual basis."
The Foreign Intelligence Surveillance Court has dealt
with some of the most sensitive matters of national security: terror threats
and espionage. Its work, for the most part, cannot be examined by the American
public, by order of Congress and the president. Its work has been mostly
secret, its structure largely one-sided.
"The most unusual thing is that there is a body of
law that the court has created, but as a practitioner that is part of that law,
we have between zero and some very limited knowledge of what that law
is," Michael Sussmann, a former Justice Department prosecutor and current
private attorney in the consumer and computer-privacy field, told Fox News.
"But, it's the fact that there is a secret law and a secret body of law
that makes it the most vexing."
Tuesday's order from the court came amid a
Republican-led push to reform FISA.
Reps. Chris Stewart, R-Utah, and Brad Wenstrup, R-Ohio,
last week introduced the FISA Improvements Act in a bid to "stop these
abuses" and effectively amend FISA by adding requirements on the FBI, the
DOJ and on the Foreign Intelligence Surveillance Court, which would also give
Congress "critical new insight to perform oversight of the FISA
powers."
"The deceptive actions of a few high-ranking
officials within the FBI and the Department of Justice have eroded public trust
in our federal institutions," Stewart stated. "They flattened
internal guardrails, deceived the FISA court, and irreparably damaged the
reputation of an innocent American" - a reference to Page.
The GOP bill would mandate that amicus curiae – an
impartial court advisor – be assigned to all cases where a U.S. person is
involved. It also would ensure that the DOJ disclose "any usage of
unverified information in the application," and include a provision in
which any FISA extensions are heard or denied by the same judge which
"ensures that the government is not able to obfuscate details of an
expiring order's newly gathered evidence to support renewal."
The House voted earlier this year against a bipartisan
amendment to FISA, proposed by Michigan Rep. Justin Amash -- then a Republican
-- and Rep. Zoe Lofgren, D-Calif., which would have halted the 2020 funding for
FISA's Section 702, which was authorized in 2008 as a means to monitor
communications by foreign nationals outside the U.S. Amash later left the
Republican Party to become an independent.
Collyer's order was met with praise by some Republican
lawmakers, including Senate Judiciary Committee Chairman Lindsey Graham, R-S.C.
"Very pleased to see the FISA court condemn the FISA
warrant application and process against Carter Page," Graham said in a
statement. "As Inspector General Horowitz’s report describes in great
detail, the FISA process falsified evidence and withheld exculpatory evidence
to obtain a warrant against Mr. Page on numerous occasions."
Horowitz's report was hardly the first time the court has
come under scrutiny. In 2013, self-confessed National Security Agency [NSA]
leaker Edward Snowden revealed a secret FISC order approving government
collection of mass amounts of so-called metadata from telecom giant Verizon and
leading Internet companies, including Microsoft, Apple, Google, Yahoo and
Facebook.
The revelations triggered debate about national security
and privacy interests, and about the secretive legal process that set
government surveillance in motion. Approvals would come from a rotating
panel of federal judges at the FISC, deciding whether to grant certain types of
government requests -- wiretapping, data analysis and other monitoring for
"foreign intelligence purposes" of suspected terrorists and spies
operating in the United States.
The Snowden revelations confirmed the scope of the NSA's
efforts had greatly expanded -- along with the court's original mission.
No longer were FISC judges approving individual surveillance requests. Now, in
essence, they were reinterpreting the Constitution, expanding the limits
of privacy and due process, critics said.
"The laws have been secretly interpreted in a way
that now allows the government to monitor the communications of all of us-- a
dragnet of surveillance," said David Sobel, a senior counsel at the
Electronic Freedom Foundation. "Based on the statistics we have, the court
appears to be a rubber stamp but part of the problem is because this process is
secret, and because the public can't see what the court is doing or read the
opinions, it is hard to assess the extent the court is asking tough questions
and holding the govt.'s feet to the fire."
Fox News' Jason Donner, Jake Gibson and
Hollie McKay contributed to this report.
