[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

[[Page S7085]]

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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