Justice IG pours fuel on looming fight over FISA court

Justice Department Inspector General Michael Horowitz is reviving a looming fight over the country’s surveillance powers. 

Horowitz — who is doing a widespread investigation of the Foreign Intelligence Surveillance Act court — released an interim memo this week that found widespread errors within warrant applications. 

His findings poured new fuel onto calls from reform-minded lawmakers as they barrel toward a renewed fight over the surveillance court as soon as next month. 

Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) said they would use the reauthorization of three provisions in the 2015 USA Freedom Act that expired last month to address issues raised by Horowitz about the surveillance court. 

“This report also comes at a critical time. In the coming months the Senate will consider extending important surveillance tools authorized in the USA FREEDOM Act of 2015. … The FISA process needs real reforms, not window-dressing,” the two senators said in a joint statement. 

Rep. Doug Collins (R-Ga.), a Trump ally in the House, added in a tweet that Horowitz’s findings were “unbelievable” and underscored “exactly why we need to reform our #FISA system. We can’t let what happened to @realDonaldTrump in 2016 ever happen again!”

Lawmakers have been grappling with how to reform the surveillance court for months. But their first effort resulted in a deadlock. 

The House included some changes to the FISA court process in a bill that extended and amended three then-soon-to-expire provisions of the USA Freedom Act, a 2015 law that overhauled the country’s intelligence program. 

But the Senate punted on the House bill and passed a 77-day extension of the USA Freedom provisions in order to focus on the growing coronavirus crisis. 

That short-term extension, however, has been unable to pass the House. That leaves the three USA Freedom provisions — which deal with a records collection program, “lone wolf” surveillance and “roving” wiretaps — lapsed and the surveillance court process unreformed by Congress, for now. 

The Senate’s extension, if the House is able to pass it, would give Congress until roughly the first of June to pass a longer reauthorization and tackle larger surveillance reforms. Both chambers are out of town until at least April 20, and lawmakers acknowledge that date is flexible as the country braces for an escalation of coronavirus cases across the country. 

Under a deal struck by leadership, the Senate will bring up the House’s three-year reauthorization, and allow for a handful of amendment votes. Lee and Leahy say they plan to offer an amendment to expand legal protections for individuals targeted for surveillance and “address the issues identified by the Inspector General” to make sure agencies provide all evidence to the court as part of its warrant applications. 

Trump has railed for years against the surveillance courts, arguing that his 2016 presidential campaign was “spied” on. Trump on Wednesday used a question about if impeachment distracted him from the coronavirus to highlight Horowitz’s findings. 

“You look at the report that came out from IG Horowitz; it’s disgraceful what went on. It’s disgraceful. It’s a total disgrace. They got caught in the act,” he said. 

Trump hasn’t said he supports the House bill as it’s currently written. A spokesman for Lee said last month that the president told the Utah senator, who has urged him to veto it without changes, that he doesn’t support it. 

Libertarian-minded GOP lawmakers and progressives have argued that the courts do not do enough to provide transparency about their activities or privacy protections for targeted individuals. 

Those concerns found a broader base among Republicans after Horowitz released a damning report late last year on the FBI’s warrant applications related to Trump campaign associate Carter Page, where he found 17 significant errors and omissions. 

His latest memo, released on Tuesday, found additional errors after he reviewed nearly 30 warrant applications. Horowitz told FBI Director Christopher Wray that he did “not have confidence” the FBI was properly following Woods Procedures, an FBI policy that requires officials provide supporting documentation to back up factual assertions made in surveillance warrant applications.

“We believe that a deficiency in the FBI’s efforts to support the factual statements in FISA applications through its Woods Procedures undermines the FBI’s ability to achieve its ‘scrupulously accurate’ standard for FISA applications,” Horowitz wrote in the memo. 

Horowitz said as part of the interim review his team visited eight FBI field offices and reviewed 29 FISA applications related to investigations that took place between October 2014 and September 2019. His team was unable to locate Woods files for four of the applications, or they weren’t completed. In the other 25 files, Horowitz said they found an average of 20 issues per file. 

That includes a “high of approximately 65 issues in one application and less than 5 issues in another application,” Horowitz wrote in the report.

Top Republicans immediately demanded Horowitz come and testify before Congress about his findings — guaranteeing it stays in the spotlight as lawmakers look at potential reforms to the FISA Court. 

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) is running his own investigation, including holding closed-door depositions, into the FISA process. 

“I intend to have Inspector General Horowitz come to the Committee to explain his findings and receive his recommendations about how to change the program,” Graham said. 

Rep. Jim Jordan (Ohio), the top Republican on the House Judiciary Committee, sent a letter to Rep. Jerrold Nadler (D-N.Y.), the chairman, asking for him to call Horowitz to testify once the House is back in session because of the “pervasiveness and seriousness of the FISA application deficiencies.”

“As the Congress continues to consider reauthorization of — and reforms needed to — the FISA process,” Jordan added, “the committee must first fully understand the scope and nature of the FBI’s errors and deficiencies in the FISA application process.”