NYT: Now we know that FISA surveillance is ugly, right?

Well, it certainly can be — in the wrong hands. The New York Times’ Charlie Savage takes a look at the broader implications of Michael Horowitz’ report on Operation Crossfire Hurricane, and especially the abuse of the Foreign Intelligence Surveillance Act (FISA). The FBI’s “error-ridden process” has highlighted serious flaws and fundamental problems in its counterintelligence operations within the US, enabled Savage argues by one-sided court access.


“What the report showed,” Savage writes, “was not pretty”:

At more than 400 pages, the study amounted to the most searching look ever at the government’s secretive system for carrying out national-security surveillance on American soil. And what the report showed was not pretty.

The Justice Department’s independent inspector general, Michael E. Horowitz, and his team uncovered a staggeringly dysfunctional and error-ridden process in how the F.B.I. went about obtaining and renewing court permission under the Foreign Intelligence Surveillance Act, or FISA, to wiretap Carter Page, a former Trump campaign adviser. …

Defenders of the system have argued that the low rejection rate stems in part from how well the Justice Department self-polices and avoids presenting the court with requests that fall short of the legal standard. They have also stressed that officials obey a heightened duty to be candid and provide any mitigating evidence that might undercut their request.

But the inspector general found major errors, material omissions and unsupported statements about Mr. Page in the materials that went to the court. F.B.I. agents cherry-picked the evidence, telling the Justice Department information that made Mr. Page look suspicious and omitting material that cut the other way, and the department passed that misleading portrait onto the court.


That’s certainly accurate in this instance, but it is also incomplete, as is Savage’s history of FISA. Congress passed the law in 1978 in response to the findings in Watergate and the Church commission that the FBI and previous administrations had used counterintelligence as an excuse to conduct political espionage on American citizens. FISA doesn’t authorize domestic intelligence surveillance, it restricts it with the warrant process. Congress forced the FBI to get approval for its counterintel warrants using a process similar to what law enforcement usually does to seek search warrants, which also does not usually involve an adversarial hearing unless the suspect already knows he or she is a target — a rarity in counterintel operations for obvious reasons.

The point of this history is that this isn’t really a process issue, considering that Congress simply forced the FBI to use the normal warrant process. It’s a leadership issue. We’ll get back to that in a moment, but it’s worth noting that Savage never actually gets around to accountability in this instance.

Instead, he works off this one data point to claim that FISA is usually this ugly nonetheless. Is it? In truth we don’t really know, because we usually don’t get to see these operations in the kind of detail Horowitz provides in this report. Horowitz wants a full audit to determine whether it’s routinely this bad or whether Operation Crossfire Hurricane was a special case. Horowitz is concerned that it’s not, but has some reason to think it was, as Savage acknowledges:


And while Mr. Horowitz obtained no documents or testimony showing that the inaccuracies stemmed from any political bias — as opposed to incompetence and negligence — he also rejected as “unsatisfactory” the explanation that the agents were busy on the larger Russian investigation and that the Page wiretap order was only a small part of their responsibilities.

Savage does better than most of the media in acknowledging the risk of politics infecting the FBI, and especially its counterintelligence operations. However, the number and scope of the misrepresentations and omissions found by Horowitz put them far beyond “inaccuracies,” especially with the actions of an FBI attorney deliberately altering evidence to support the Page warrant. That is a criminal act, with full intent to defraud the court. And that prompts the question of motive that goes beyond the question of competence.

It also calls into question the leadership in place at the time of Operation Crossfire Hurricane. Horowitz made clear that these material misrepresentations indicts all levels of the FBI’s management, including the man who claims to have been vindicated by the report. In my column for The Week, I argue instead that Horowitz vindicated the firing of James Comey:

The impact of Horowitz’ findings go well beyond the Trump presidency, and well beyond the typical partisan warfare in the Beltway too. Congress passed the Foreign Intelligence Surveillance Act in 1978 as a reform to curtail political intrigue under the guise of domestic counterintelligence operations by the FBI. The country had been shocked at the extent to which presidents and founding director J. Edgar Hoover had used that authority to conduct political surveillance on opposition groups. Recognizing the need for effective but accountable domestic counterintelligence and its occasional need to surveil U.S. citizens or legal residents, Congress passed FISA as a means to ensure that the FBI could only conduct those operations when probable cause exists for it.

As Horowitz points out in his report, those safeguards only work when the FBI and its leadership take the requirement for full honesty and disclosure to the FISA court seriously. The bureau requires its personnel to ensure that these warrant applications are “scrupulously accurate” to maintain confidence in the FBI’s ability to prevent political abuse of its powers. Failure to do so resulting in intelligence operations aimed at innocent Americans risks revoking even the limited authority the FBI has under FISA to conduct such operations. A revocation based on such abuse would create critical gaps in national security, especially in an era dominated by non-state terror networks.

Given the explosive nature of an investigation into a major-party presidential campaign adviser, Horowitz concludes that James Comey and his senior team failed to take that responsibility seriously. Comey’s op-ed sloughing these off as inadvertent “mistakes,” including one in which an FBI lawyer altered documents to fraudulently support the warrant, corroborates Comey’s lack of seriousness. Far from vindicating his leadership, Horowitz’ report comes much closer to vindicating Comey’s termination.


Oddly, the name James Comey never comes up once in Savage’s analysis. Why not?

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