[Congressional Record Volume 165, Number 204 (Tuesday, December 17, 2019)]
[Senate]
[Pages S7084-S7086]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL INTELLIGENCE SURVEILLANCE ACT
Mr. CORNYN. Mr. President, I understand the majority leader will be
here soon, and when he does come, I will be glad to yield to him. In
the meantime, I want to talk about last week's report from the
inspector general of the Department of Justice on the FBI's
counterintelligence investigation into the Trump campaign and its
contacts with Russia in 2016.
This is a very long report. It is more than 400 pages long, and it
outlines a series of errors--17, all counted--made by the FBI under the
leadership of Director James Comey.
It is important for people to realize that all these mistakes were
made in a previous administration and not under the leadership of FBI
Director Chris Wray, and they don't reflect, in my view, the actions of
the rank-and-file FBI agents. But it is a serious matter, and we need
to get to the bottom of it, and we need to take corrective action.
The report details a pattern of concerning behavior by those who were
charged with protecting and defending the United States, and it raises
a lot of red flags.
Last week, the inspector general testified before the Judiciary
Committee. I told him at that time--and I think it bears repeating--
that as an ardent supporter of law enforcement and our intelligence
community, I worry that the mistakes and the intentionally misleading
conduct undertaken by some leaders in the FBI under the previous
administration will undermine the public's confidence in what is a very
sensitive but important area, like foreign intelligence surveillance.
We rely on the men and women of the FBI to identify and counter
threats to our national security, all the while protecting incredibly
sensitive information and the privacy of American citizens. It requires
a tremendous amount of trust from the American people, and I am afraid
that some of the information that surfaced in this report puts that
trust in jeopardy.
The inspector general detailed a number of truly disturbing and
alarming facts about how this investigation was conducted, especially
when it comes to the Foreign Intelligence Surveillance Act, otherwise
known as FISA.
FISA is a means whereby FBI agents can go to the Foreign Intelligence
Surveillance Court and show probable cause that an American citizen is
an agent of a foreign power. Obviously, these are very, very sensitive
investigations, and the sort of authority that is given to the FBI
under these circumstances is very intrusive. In my view, it is entirely
justified and necessary when, in fact, you are protecting the United
States from very real counterintelligence matters. But the inspector
general identified 7 mistakes in the initial Carter Page foreign
intelligence surveillance application and 10 additional ones in 3
renewals. These were not typos or misspelled words; these were
misrepresentations meant to deceive the court so they would issue a
foreign intelligence surveillance warrant.
To make matters worse, even as new exculpatory information came to
light on Carter Page, this information was not shared with the Foreign
Intelligence Surveillance Court--information that they would have found
relevant in considering whether the FBI and the U.S. Government had met
their required showing.
I asked the inspector general whether he believed that if the court
knew what we know now, would the court have ever issued the FISA
warrant in the first place? He perhaps wisely said he was not in a
position to predict what the judges may or may not do, but he said he
knew they wouldn't sign a warrant if they were told that all of the
information was not included and certainly not if they were lied to, as
occurred here in the Carter Page foreign intelligence surveillance
warrant. As a former judge myself, I think that is absolutely accurate.
But that begs the question, What is the FISA Court going to do about
this? We know what we need to do because already the FBI Director has
indicated that there are a number of areas where he believes this whole
process needs to be reformed in order to restore public trust in the
integrity of this process.
I was interested to see a report in the New York Times that is dated
today at 4:55 p.m. entitled ``Court Orders FBI to Fix National Security
Wiretaps After Damning Report.''
Mr. President, I ask unanimous consent that following my remarks,
this article be printed in the Record.
Take a step back from this scenario and think more broadly about how
this type of behavior may play out in a criminal proceeding. For
example, imagine you are a judge and you find out that you were lied to
by the prosecution, that you were presented with information that was
not only incorrect but intentionally fabricated to help build their
case. What would you do? Well, depending on the scenario, the court may
hold that individual in contempt of court. The judge may decide to
throw out some of the evidence or the entire case and possibly--
probably--refer that lawyer to disciplinary proceedings, where that
lawyer would be in jeopardy of losing his or her law license. These are
remedies that exist if these sorts of actions happen during ordinary
court proceedings, and I believe they are probably available to the
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Foreign Intelligence Surveillance Court should the court decide to take
that kind of action.
I note that in this article I have attached and I referred to
earlier, the court has now given the FBI a January 10 deadline to come
up with a response to what the court is asking about.
Of course, the court, I am sure, had to be troubled by what it saw as
not only the sloppy work but the intentional misrepresentation and
outright lies used by the FBI in this instance to get this foreign
intelligence surveillance warrant against Carter Page--as well they
should be concerned.
But the Foreign Intelligence Surveillance Court is different from
ordinary courts. It handles cases that are critical to our national
security, full of highly sensitive, largely classified information, and
these same sorts of remedies that you might use in an ordinary court
may or may not apply.
The way I see it, if we don't take corrective action--if the FBI
doesn't take corrective action, if Congress doesn't undertake a review
of this whole FISA process--we will be in danger of losing this ability
to investigate or to collect intelligence to keep our country safe. The
only way that happens currently is if the public trusts Congress and
the FISA Court to enforce the laws and rules to make sure that privacy
interests of American citizens are adequately protected, and only based
upon an extraordinary showing--an evidentiary showing by the Government
that a FISA warrant is warranted should that be ordered by the court.
All of that is at risk unless, I believe, reform is undertaken and
the court takes corrective action in whatever means it thinks
appropriate to punish those who misled it in issuing these four FISA
warrants for Carter Page.
This whole episode, I believe, sets a very dangerous precedent. If
these agents and lawyers are able to break every rule to investigate a
political campaign of an American President and are facing no
consequences, what is to stop others from doing that in the future? If
they can use the awesome power of the Federal Government to investigate
a Presidential campaign and someone who later became President, what
chance do ordinary Americans have of making sure that the rules will be
applied to them and that their privacy will be respected?
We have to have accountability for these errors and these
intentionally deceptive representations. We can't have people like that
working at the FBI who are charged with supporting our national
security. We can't allow that to continue or to happen again.
We need to see that adequate disciplinary measures are undertaken by
the FBI, perhaps by the court itself, while Congress looks at what we
can do to reform this whole FISA procedure to make sure things like
this do not happen in the future.
I was glad to see, in his report, the inspector general said that his
office has initiated a full audit to look into the FBI's compliance
with FISA procedures across the board.
He also noted that the FBI's National Security Division Assistant
Attorney General had sent a letter to the FISA Court in July of 2018,
outlining some of the errors made in the Carter Page FISA applications
and saying that DOJ lawyers will be supplementing that information
based on the inspector general report that the inspector general
testified on last week.
As we look for ways to prevent this type of abuse from happening in
the future, we need to hear from the FISA Court what it believes is
appropriate discipline and appropriate measures it needs to take to
protect the integrity of their proceedings and to stop things like this
from happening in the future. All of this would be critical not only to
find what went wrong but also what Congress does or does not need to do
to protect the integrity of this process.
FISA--the Foreign Intelligence Surveillance Act--is absolutely
critical to our national security, and we must not only protect the
integrity of the process but restore the American people's trust in it.
I know this isn't something that can be solved overnight, but I am
committed to working with all of our colleagues here in Congress, as
well as the Justice Department and the Foreign Intelligence
Surveillance Court, to try to do what we need to do to prevent these
failures from ever happening again.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From The New York Times, Dec. 17, 2019]
Court Orders F.B.I. to Fix National Security Wiretaps After Damning
Report
(By Charlie Savage)
In a rare public order, the secretive Foreign Intelligence
Surveillance Court responded to problems with the
eavesdropping on a former Trump campaign aide uncovered by an
inspector general.
A secretive federal court accused the F.B.I. on Tuesday of
misleading it about the factual basis for wiretapping a
former Trump campaign adviser and ordered the bureau to
propose changes in how investigators seek permission for some
national security surveillance.
In an extraordinary public order, the presiding judge on
the Foreign Intelligence Surveillance Court, Rosemary M.
Collyer, gave the F.B.I. a Jan. 10 deadline to come up with a
proposal. It was the first public response from the court to
the scathing findings released last week by the Justice
Department's independent inspector general about the
wiretapping of the former Trump adviser, Carter Page, as part
of the Russia investigation.
``The frequency with which representations made by F.B.I.
personnel turned out to be unsupported or contradicted by
information in their possession, and with which they withheld
information detrimental to their case, calls into question
whether information contained in other F.B.I. applications is
reliable,'' Judge Collyer wrote.
The court ``expects the government to provide complete and
accurate information in every filing,'' she added.
While the inspector general, Michael E. Horowitz, debunked
the claims by President Trump and his allies that senior
F.B.I. officials were part of a political conspiracy, his
investigation also exposed a litany of errors and
inaccuracies by which case agents cherry-picked the evidence
about Mr. Page as they sought permission to eavesdrop on his
calls and emails.
The order specifies no particular reforms for the bureau's
policies for seeking permission to wiretap people under the
Foreign Intelligence Surveillance Act, or FISA. But it
indicated that the court will weigh in on whether the
F.B.I.'s proposals are sufficient.
At a Senate Judiciary Committee hearing last week about the
report's findings, the chairman of the panel, Senator Lindsey
Graham, Republican of South Carolina, addressed the FISA
court directly, telling the judges that they needed to take
steps to preserve political support for the national security
surveillance system.
``The FISA system, to survive, has to be reformed;'' Mr.
Graham said. ``To the FISA court: We're looking to you to
take corrective action. If you take corrective action, that
will give us some confidence that you should stick around. If
you don't, it's going to be hurtful to the future of the
court, and I think all of us are now thinking differently
about checks and balances in that regard.''
Mr. Horowitz is scheduled to testify about the report again
on Wednesday at a hearing before the Senate Homeland Security
and Governmental Affairs Committee.
Mr. Horowitz suggested several changes. He recommended that
the F.B.I. overhaul the forms used to ask the Justice
Department to submit a FISA request or renewal to ensure they
identify any information that cuts against suspicions about a
target; surface any reasons to be skeptical about an
informant whose information is included; and require agents
and supervisors to reverify factual assertions repeated from
prior applications when they seek renewals.
In a statement issued when the report was released, the
F.B.I. director, Christopher A. Wray, said he accepted Mr.
Horowitz's findings and embraced the need to make changes. He
said he was ordering ``concrete changes'' to ensure that that
FISA process was ``more stringent and less susceptible to
mistake or inaccuracy.''
Among the other ideas floated by reform proponents,
including the American Civil Liberties Union: appointing a
third party to critique the government's cases for
wiretapping people, at least in sensitive investigations, or
allowing defense lawyers with security clearances to see the
government's evidence presented to the FISA court on those
rare occasions when it is used to prosecute a suspect.
Mr. Horowitz has already begun an audit of other, unrelated
FISA applications to see whether there is a broader pattern
of problems in how the F.B.I. is portraying the evidence
about suspects. Another possibility for reform is that going
forward, the bureau's general counsel could oversee recurring
audits of a random sampling of FISA applications, so that
case agents will always have to take into account that
someone may later second-guess their work.
In his report, Mr. Horowitz scrutinized the four
applications that the Justice Department submitted between
October 2016 and June 2017 to wiretap Mr. Page, whom F.B.I.
agents suspected might be a conduit between the Trump
campaign and Russia during its covert operation to manipulate
the 2016 presidential election.
The review uncovered a deeply dysfunctional and flawed
process riddled with inaccuracies and material omissions.
Investigators highlighted facts that made Mr. Page look
suspicious while failing to mention potentially exculpatory
ones, and when they
[[Page S7086]]
sought to renew the wiretap, they failed to correct earlier
statements whose credibility had since come under serious
question, the report found.
Justice Department lawyers who deal directly with the FISA
court passed that misleading portrait onto the judges. While
Mr. Horowitz's findings placed most of the direct blame on a
handful of case agents and their supervisors who worked
directly with the raw evidence, his report also blamed senior
officials for permitting a culture in which such actions
could happen.
The report said Mr. Horowitz's investigators had found no
evidence that political bias against Mr. Trump was behind the
problems--as opposed to apolitical confirmation bias, gross
incompetence or negligence. But the inspector general said
the explanation the F.B.I. offered--that the agents had been
busy with other aspects of the Russia investigation, and the
Page FISA was a minor part of those responsibilities--was
unsatisfactory.
Congress enacted FISA in 1978 to regulate the government's
use of domestic surveillance for national-security
investigations--those aimed at monitoring suspected spies and
terrorists--as opposed to ordinary criminal cases. The law
sets up a special court, made up of 11 sitting district court
judges who are selected to serve staggered terms by the chief
justice of the Supreme Court, and decide whether the evidence
shows a target is probably a foreign agent.
In 2018, government records show, the court only fully
denied one of 1,080 final applications submitted under FISA
to conduct electronic surveillance. However, the court also
demanded unspecified modifications to 119 of those
applications before approving them. There were 1,833 targets
of FISA orders, including 232 Americans, that year.
National-security wiretaps are more secretive than ordinary
criminal ones. When criminal wiretap orders end, their
targets are usually notified that their privacy has been
invaded. But the targets of FISA orders are usually not told
that their phone calls and emails have been monitored, or
that their homes or businesses have been searched.
And when people are prosecuted for crimes based on evidence
derived from ordinary criminal wiretaps, the defendants and
their lawyers are usually allowed to see what the government
told judges about them to win approval for that surveillance,
giving them the opportunity to argue that investigators made
mistakes and the evidence should be suppressed.
But defense lawyers, even those with security clearances,
are not shown FISA applications for their clients. As a
result, there is no prospect of second-guessing in an
adversarial court setting to keep F.B.I. agents scrupulous
about how they portray the evidence when seeking to persuade
FISA judges to sign off on putting a target under
surveillance.
In the absence of that disciplining factor, the Justice
Department and F.B.I. have developed internal procedures that
are supposed to make sure that the evidence presented in FISA
applications is accurate and includes any facts that might
undercut the government's case. But that system failed in the
Page wiretaps, Mr. Horowitz's report showed.
At the Senate hearing, one of the rare areas of agreement
between Republicans and Democrats was the need for change to
the FISA system. Senator Richard Blumenthal, Democrat of
Connecticut, who has unsuccessfully proposed legislation to
tighten restrictions on national-security surveillance in the
past, said he welcomed the moment.
``I hope my Republican colleagues who have been so vocal
and vehement about the dangers of potential FISA abuses will
join me in looking forward and reform of that court,'' Mr.
Blumenthal said, adding: ``I hope that we can come together
on a bipartisan basis to reform the FISA process.''
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