Leading House Republicans won’t back the reauthorization of powers under the Foreign Intelligence Surveillance Act without major reforms in the wake of the FBI’s FISA abuses and special counsel John Durham’s report.
Rep. Mike Turner (R-OH), chairman of the House Intelligence Committee, Rep. Darin LaHood (R-IL), the Turner-designated leader of the committee’s FISA Working Group, and Rep. Mike Garcia (R-CA), another key committee member, all spoke with the Washington Examiner about the need for guardrails before FISA powers are reauthorized.
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The trio of lawmakers want reforms at the FBI and at the Foreign Intelligence Surveillance Court, which approves the secret warrants. Their demands are at odds with the Biden administration, which wants to reauthorize FISA Section 702 powers without changes before it expires at the end of 2023.
“We have been very clear on a bipartisan basis with the intelligence community and the FBI that there is no support in Congress for a clean reauthorization of 702,” Turner told the Washington Examiner. “Reforms are necessary. We will be taking up the issue of reforms, and they will not be limited to 702 itself. It will encompass both abuses that we are aware of and abuses that are now in the public domain as a result of disclosure and Durham.”
It’s “essential” to have access to the national security tool, Turner said, but “it is equally essential that reforms occur to stop the abuses.”
Turner and LaHood took particular aim at fired FBI Director James Comey’s role in the Crossfire Hurricane investigation into Russia collusion in the 2020 presidential election. Durham’s report in May on his investigation of the Trump-Russia investigators revealed FISA wrongdoing related to the FBI’s reliance on British ex-spy Christopher Steele’s discredited and Democratic-funded dossier to obtain flawed FISA surveillance against Trump campaign associate Carter Page during and after the 2016 election.
The Office of the Director of National Intelligence then declassified a FISA Court opinion last month showing the FBI committed FISA violations 278,000 times in recent years, including on people believed to be connected to violent George Floyd protests and the Capitol riot.
Another recently declassified intelligence document concluded that “misunderstandings regarding FBI’s systems and FBI’s querying procedures caused a large number of query errors” related to 702.
The 702 portion of the FISA law is not directly connected to the Trump-Russia saga but relates to what the ODNI describes as “a key provision” of FISA “that permits the government to conduct targeted surveillance of foreign persons located outside the United States.”
The reauthorization has met opposition from many Republicans and some Democrats in the House and Senate. Leading the bipartisan working group is LaHood, who says he was subjected to an improper FBI FISA query in 2019.
“He is a victim — he was subject to improper 702 query, so he brings with him both an understanding of FISA and the importance of stopping the abuses,” Turner said. “We’re going to be looking at all aspects of FISA for reform, including the manner in which cases are processed by the FISA court, the manner in which people have access to FISA information, the standards that are applied for its access, and the manner in which the intelligence community shares that information among themselves.”
LaHood echoed to the Washington Examiner that “there is no clean reauthorization whatsoever — that is just off the table.” The congressman said “FISA can be made better” with “strong and systematic reforms.”
Republicans have repeatedly argued that the FBI and the intelligence community need to regain the trust of Congress and the public before the powers are reauthorized.
“Is it tougher here in Congress when people hear the Durham report? 100%. Of course,” LaHood said of reauthorizing 702. “I mean, it just feeds the narrative and the reality of how incompetent in many ways and highlights the problems the FBI has had and why we need to reform the FBI.”
FBI Director Christopher Wray testified in March the FBI misdeeds unearthed from its Trump-Russia Crossfire Hurricane investigation constituted “conduct that I consider totally unacceptable” and insisted he had implemented significant reforms since then. Wray also admitted that “there have been compliance incidents that have to be addressed” related to the FBI’s misuse of 702 and said the FBI had also taken steps to fix that.
“I think he’s been too much of a company man and he’s not been independent,” LaHood said of Wray. “I think people’s expectations were that he would come in and change things up and reform things, and I think he’s been too much of a shill for [Department of Justice] and for the FBI and hasn’t brought the necessary reforms.”
LaHood said he has “cast a wide net of people” to work on FISA reforms and to secure GOP support for them, saying he had spoken with former GOP Intelligence Committee Chairman Devin Nunes, former CIA Director and Secretary of State Mike Pompeo, former Director of National Intelligence John Ratcliffe, former Nunes staffer and Department of Defense official Kash Patel, former national security adviser Robert O’Brien, and former Attorney General William Barr.
LaHood suggested new criminal consequences for lying or omitting information to the FISA court so that “people would be put in prison.”
“Obviously the FBI is the No. 1 focus,” LaHood said. “The FBI has made a lot of changes internally. … A lot of these things haven’t been put into statute, they haven’t been made law, they are just internal mechanisms there, so I think there is some real value with statutorily putting those in place. We’ve talked about criminal penalties, criminal culpability, criminal liability. … We want to be careful not to have a chilling effect, but I think there is a happy medium there that we haven’t reached yet.”
The congressman said “roughly 8,000 to 10,000 FBI analysts and personnel have access” to FISA data, which he called “way too many.”
“You’ve gotta scale it down,” he said, and then impose scrutiny on those FBI officials granted access.
LaHood said the FISA Court needed real changes too, arguing that its amicus curiae (or “friend of the court”) process was not properly utilized, noting that FISA hearings are held ex parte — meaning without a defense lawyer present. He also pointed out the “perplexing” fact that FISA hearings don’t have transcripts.
The congressman said, “We also have talked to current and former FISA judges … and gotten some advice from them on how we fix it” and said the working group is “looking at how judges are selected, how long they stay with a case, [and] whether that is just a rubber stamp.”
Originally conceived as mainly a counterterrorism tool in the wake of the deadly 9/11 attacks by al Qaeda, top Biden officials, including Attorney General Merrick Garland, have sought to emphasize the role FISA 702 plays in combating threats posed by China and other foreign foes.
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Garcia told the Washington Examiner he’s not convinced the FBI has put in place adequate changes to prevent future abuse, and he’s “not satisfied with the lack of accountability for previous abuses.”
“It is clear that Congress must put in place guardrails on these powers” to restore faith in the intelligence community while “ensuring that there are consequences for acting in bad faith,” he said.
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