FISA failures: Biden DOJ’s push to renew powers puts spotlight on controversial actions
Jerry Dunleavy
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The Biden administration faces a self-admitted “trust question” when pushing to renew certain powers under the Foreign Intelligence Surveillance Act, with Republicans on Capitol Hill sure to point to Trump-Russia FISA abuses.
The reauthorization, which must be done before it expires at the end of 2023, will meet pushback from at least some congressional Republicans, given FISA abuses unearthed in recent years. Some of the highest-profile examples include the FBI’s use of British ex-spy Christopher Steele’s discredited dossier to obtain flawed FISA surveillance against Trump campaign associate Carter Page. The DOJ’s watchdog has found other FISA problems since then as well.
BIDEN ADMINISTRATION PUSHES FOR CONTROVERSIAL FISA RENEWAL BY POINTING TO CHINA CHALLENGE
Assistant Attorney General Matt Olsen admitted on Tuesday the Biden administration’s FISA renewal effort faced a “politics” problem as well as a “trust” problem.
Olsen mentioned the FBI’s flawed Trump-Russia “Crossfire Hurricane” investigation during a discussion after his Tuesday speech at the Brookings Institution, where he admitted “mistakes” were made related to the “traditional FISA” warrants against Page. He added that new DOJ and FBI rules had helped fix problems at the bureau, but that the FBI needed a “culture of compliance” and that “we still have work to do in regaining the trust of the American people.”
Even though Section 702 and the sort of improper FISA surveillance against Page fall under different legal authorities, Olsen said he considered them linked.
“When I talked about these issues from Crossfire Hurricane, I did not make the point that that’s not Section 702. … I understand that it’s a different part of FISA … but it is so much part of the challenge that we face,” Olsen said. “So yes, Crossfire Hurricane, Carter Page, totally separate part of FISA. … But the reason they are so connected — and I say not just on the politics, but on the trust question — those mistakes that we made cost us with the American people and Congress.”
But when asked by the Washington Examiner what his personal feelings were about the FBI’s use of the Steele dossier to obtain FISA surveillance against Page, Olsen dodged.
“Obviously I’m not gonna talk about any particular FISA,” Olsen said, adding, “I can’t address any particular use of FISA.”
A senior DOJ official told the Washington Examiner on Tuesday that “we welcome the opportunity to talk to members in Congress and their staff about all of the different measures that have been put in place after the findings of the inspector general … to address the accuracy and completeness of FISA applications.”
Senior officials from both the Office of the Director of National Intelligence and the DOJ told the Washington Examiner that their agencies are open to speaking with congressional Republicans about potential reforms to Section 702 specifically and to FISA more broadly, so long as the needed authorities under Section 702 are preserved.
The officials noted that more than 200 House members and over 20 members of the Senate are new enough that they weren’t in office for past reauthorization battles, so they would be reaching out to them in particular. The officials said their mission was to “educate” all congressional members about the importance of the FISA authorities.
Biden national security adviser Jake Sullivan said on Tuesday that the White House, DOJ, and ODNI will “engage constructively with the Congress to preserve this essential tool.”
DOJ Inspector General Michael Horowitz’s report in December 2019 criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants against Page, for concealing potentially exculpatory information from the FISA court related to collusion denials by Trump associates, and for the bureau’s reliance on the Steele dossier.
At the time, Horowitz criticized the bureau’s “entire chain of command.” The watchdog said he was unable to determine whether the FBI’s flaws were due to “gross negligence” or “intentional misconduct.”
The Justice Department later told the FISA court it believed at least some of the Page FISA warrants were “not valid.” FBI Director Christopher Wray agreed there had been at least some illegal surveillance and said he was working to “claw back” that FISA information.
Wray and then-Attorney General William Barr announced FISA reforms in September 2020, with Barr saying that “what happened to the Trump presidential campaign … must never happen again.”
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Rep. Mike Turner (R-OH), now the chairman of the House Intelligence Committee, put together a working group led by Rep. Darin LaHood (R-IL) to deal with the renewal process for Section 702.
“We’re doing a comprehensive review of the outstanding issues,” Turner told The Record in October 2022. LaHood told the outlet that Congress will look at the “possibility of reforms” for FISA, arguing that “the central goal is for our laws to both protect the rights of Americans and further our national security interests, and that the executive branch is compliant with those laws.”