In the weeks since Inspector General Michael Horowitz’s report on the FBI’s security and privacy abuses was released, a new sense of urgency has come over the GOP.
Two House Republicans vowed last week to introduce legislation that would amend the Foreign Intelligence Surveillance Act, and several in the Senate have demanded additional oversight of an agency that has too much power and too little accountability.
This reform is long overdue. Just ask Mike Lee, the Utah senator who has been warning about FISA, its subjective application, and the threat it poses to the public’s privacy for the past nine years. Horowitz’s report, he told me, is an “opportunity” to take a good, long look at FISA and what it has allowed our intelligence community to become.
“When you have standards like this in place — standardless discretion, virtually limitless discretion — you’re going to have abuse,” he said. “It’s not a question of if, just when, and how often, and how bad it gets.”
Horowitz appeared before Lee and the rest of the Senate Judiciary Committee last week to testify about his report and the “17 significant errors and omissions” he found in the FBI’s FISA warrant application to surveil Trump campaign aide Carter Page. Though Horowitz concluded that political bias didn’t affect the results of the FBI’s surveillance of Page and its subsequent investigation into President Trump’s alleged ties to Russia, he did find that much of the abuse stemmed from deep-rooted irresponsibility in one of the world’s most powerful agencies.
Some of the FBI’s omissions seriously tainted the integrity of its investigation. In one instance, an FBI lawyer intentionally altered an email to make the surveillance of Page seem more legitimate. And, on the FISA warrant application itself, the FBI failed to mention that the Steele dossier, which provided unverified intelligence that the FBI considered “essential,” according to Horowitz, had been funded by political operatives, namely Hillary Clinton’s 2016 presidential campaign and the Democratic National Committee.
None of these abuses came as a surprise to Lee, who said the most shocking thing about Horowitz’s report was how long it took for something like this to come to light.
“I’m convinced this is not the only incident involving abuse of FISA. I’m absolutely convinced,” he said. “I think it’s almost unimaginable that there aren’t other significant abuses. So, we need to take this opportunity as a reminder, a sort of swift kick, that you can’t just pretend this is going to be OK.”
The next step will be a combination of legislation and oversight, Lee said. The Senate GOP plans to hold another hearing, this time with FBI Director Christopher Wray, to “ask him questions about what he’s doing to fix what happened, and to make sure it’s no longer happening, and that it won’t happen in the future,” Lee said.
Additional oversight will create the accountability the FBI currently lacks. But even this won’t solve the real problem, which is the vague law that allowed incompetence, negligence, and perhaps even deliberate bias to hijack the FBI’s operations.
FISA is a poorly worded law that must be directly amended, Lee said. Those who know the history of FISA know this is true: The bill was a response to former President Richard Nixon’s abuse of power and was drafted behind closed doors and pushed through the legislature with little debate. The amendments to it since have aggravated the problem.
The legislative reform Lee hopes to see will focus on tightening the probable cause requirement, which is “so loose as to be almost nonexistent right now,” Lee said. Conduct that is protected under the First Amendment should not be used in a FISA warrant application, he added, or, if it is, it must be substantiated with additional, verified intelligence (key word: verified).
Additionally, there should be some sort of third-party, amicus curiae presence on the FISA court in cases “that could be precedent-setting, cases that could be plowing new ground,” Lee said.
This is just the beginning of the reforms Lee said he hopes to see, and he’s optimistic about their results, especially now that the rest of his party is on board. “It’s been delightful,” he said. “I’ve done my best not to gloat or spike the football and remain somber and keep everyone focused on the fact that we, virtually all of us, agree that we have a problem.”
But one of the highlights during Horowitz’s testimony was when Nebraska Sen. Ben Sasse looked at Lee and admitted that, in their five-year-long debate over the merits of FISA, Lee had been right all along. “I couldn’t help but smile when Ben Sasse brought that up,” Lee said. “He said, ‘Mike Lee doesn’t drink, but if he did, I’d go out and buy him a whiskey,’ and Ted Cruz leaned over and said, ‘I have whiskey in my office.’”
The reforms Lee is proposing won’t pass easily, not even with GOP support. Many of his Democratic colleagues have underplayed the significance of Horowitz’s report because of the man the FBI targeted: Trump. Indeed, Democrats in both the House and the Senate emphasized Horowitz’s findings on bias, or the lack thereof, and urged the public not to lose trust in the U.S. intelligence community.
But FISA abuse shouldn’t be a partisan issue, Lee said. And he should know: He’s spent much of his political career working with the other side of the aisle to draw attention to the problems FISA poses.
“So, if you don’t like President Trump, that’s a different issue than this,” he said. “I think it’s impossible for someone to look at these facts and refute the notion that this reveals a major, major problem. The extent to which someone is concerned about it might turn on the level of support for the president, but that doesn’t mean this isn’t still a problem.”
And to those who say privacy is not an absolute and that it must at times give way to security, Lee said: “[Privacy and security] are one in the same. We are not truly secure unless our privacy is respected. And there is nothing terrifying or reckless or even remotely unsafe about requiring that the law tighten up. None of those things will make us unsafe, but they will make the law a lot safer for the American people.”
“Look, this thing wasn’t written on stone tablets,” he said. “This was not a law written by the hand of God on stone tablets and handed down to Mt. Sinai. We deal with the law as we take it, and we have to address the law as it now exists based on how it’s been implemented. And that means reform.”
