Substantively, it might not seem like much, but symbolically, this order will sting the FBI and Department of Justice. The Foreign Intelligence Surveillance Court effectively barred any agents involved in the Carter Page FISA warrants from taking part in its proceedings as a consequence of the misconduct that took place in Operation Crossfire Hurricane. Also, the court will now require agents and attorneys to swear under oath explicitly that they have included all potentially exculpatory evidence in their presentations:
A secretive federal court on Wednesday effectively barred F.B.I. officials involved in the wiretapping of a former Trump campaign adviser from appearing before it in other cases at least temporarily, the latest fallout from an internal inquiry into the bureau’s surveillance of the aide.
A 19-page opinion and order by James E. Boasberg, the chief judge of the Foreign Intelligence Surveillance Court, also largely accepted changes the F.B.I. has said it will make to its process for seeking national-security wiretaps following a damning inspector general report about errors and omissions in applications to monitor the adviser, Carter Page.
But Judge Boasberg ordered law enforcement officials to specifically swear in future cases that the applications to the court contain “all information that might reasonably call into question the accuracy of the information or the reasonableness of any F.B.I. assessment in the application, or otherwise raise doubts about the requested findings.”
The court has also accepted a package of reforms from the FBI, after rejecting their first submission. Warrant applications will now have to be sworn by case agents rather than their supervisors, as was previously the case. The bureau also promised “enhanced training” to avoid the pitfalls of the Page case, whatever that means. Do they really need enhanced training to avoid deliberately misrepresenting a target’s relationship with other US intelligence agencies, for instance?
The banishment of Crossfire Hurricane figures is almost certainly meant to be embarrassing, but that’s about as much teeth as FISC has in this situation. As the New York Times’ Charlie Savage points out, the court has limited authority to deal with FBI misconduct. It has no oversight over the Department of Justice at all, which is an executive-branch agency. Presumably the court’s rotating judges had already adopted a more skeptical approach to more recent surveillance warrant applications after reading the Michael Horowitz report, but unless Congress changes the FISA law, courts are still required to follow it.
Speaking of which, the law is due to expire, and Donald Trump has already declared he won’t sign an extension without significant changes. Given what happened in Crossfire Hurricane, few would be surprised to know that, of course:
President Donald Trump told top House and Senate Republicans on Tuesday evening that he would not support a clean extension of federal surveillance powers and called for them to work out a deal with Democrats on how to move forward. …
Trump’s comments in an hour-plus meeting on Tuesday night came despite a push from Attorney General William Barr to modify the law administratively to appease the president, who has railed in the past against the spying law after authorities used it to monitor an associate of his 2016 campaign.
“The president made it exceedingly clear he will not accept a clean re-authorization … without real reform,” Sen. Rand Paul (R-Ky.), told reporters after the meeting. “He was told by the attorney general, we can massage around the edges and we can fix this through regulation, the president didn’t accept that, pushed back very vigorously and said ‘we’re not doing this.'”
Trump instead told the lawmakers: “You all work out a bipartisan deal and come back to me and I’ll sign it,” according to a source in the room.
The law sunsets on March 15th, which means that the FISC’s sanctions on the FBI and DoJ might be moot by the 16th. That would involve not just humiliation but likely some level of panic at the FBI over its national-security responsibilities. They are the only national agency allowed to conduct counter-intelligence operations within the US, and any covert surveillance of a “US Person” would require a FISA warrant even to begin.
Last week, I spoke with former Acting Attorney General Matthew Whitaker about the FISA process and the need for reform. Whittaker, who still advises the president at times, says the process needs reform but not a shutdown or complete revision:
The Horowitz report has been out for months, though, so the deadline issue is one that Congress created for itself. If they want to renew FISA, it had better start including an adversarial process to test the government case in some manner and a lot more accountability for fraudulent representations on warrants. That’s not an unreasonable ask in the post-Russiagate era.