When U.S. Attorney John Durham recently secured a guilty plea from former FBI lawyer Kevin Clinesmith, it was only the latest in a string of mishaps and scandals for the FBI. Soon after, Attorney General William Barr proposed a series of laudable, far-reaching administrative reforms designed to reduce opportunities for mischief at the FBI. But is internal reform enough? Or will new laws be needed to restore the trustworthiness of America’s premier law enforcement agency?
That the FBI has had a very bad run is undeniable.
Clinesmith admitted to doctoring an email submitted in sworn testimony to obtain Foreign Intelligence Surveillance Act warrants against Trump campaign associate Carter Page. Months before, a report from the Department of Justice inspector general documented 17 serious errors of omission and commission made by the FBI in investigating Page. The FBI’s performance was so shoddy that the secret court overseeing that federal surveillance program offered a rare public rebuke, accusing the FBI of numerous procedural violations.
You don’t have to be a Republican upset about Page to be concerned about FBI abuses. The inspector general followed up with another report examining a sampling of 29 other, unrelated FISA applications involving U.S. citizens, finding errors in each one. And Durham’s investigation into the origins of the FBI’s Trump-Russia inquiry continues to reveal information raising serious concerns that FBI and Department of Justice actions may have been driven by partisan, rather than public, interest.
An inspector general and a prosecutor can only examine mistakes and crimes after they are committed. Indeed, the Clinesmith guilty plea might be the only prosecutorial action to arise from these investigations. Perhaps Barr issued his new limits on FISA investigations of political candidates and staff within two weeks of Clinesmith’s guilty plea because he had become alarmed at the growing distrust of the FBI.
Among Barr’s reforms are requirements that the FBI have warrant applications reviewed by “relevant FBI personnel” for accuracy, with audits by a newly created oversight office. If the FBI identifies any errors in FISA court submissions, it must immediately report them.
Of special interest during this campaign season, before surveilling political candidates or staff, Barr’s reforms require the FBI to consider warning that person that a foreign government may be targeting them. If the government chooses not to give such a warning, the FBI director must spell out reasons for not doing so in writing.
While commendable, these changes are not enough. Why should we expect the FBI, as an institution, to follow new rules when it didn’t follow the old rules? How can the public, or even the Department of Justice, determine if someone in the FBI is cutting corners?
An action taken by one attorney general can also be undone or ignored by a future one. With the stroke of a pen or the wink of an eye, a future officeholder can nullify every one of Barr’s changes. With a contentious election just around the corner, a new Biden administration or a reconfigured Trump administration could undo much of what the current administration has accomplished — including surveillance reforms.
There is only one way to accomplish the corrections Durham and Barr have attempted. Congress should act to make these changes statutory and permanent, enacting Barr’s new regulations into law. And it can enact further commonsense reforms with strong bipartisan support. Last spring, measures reforming different aspects of our nation’s surveillance apparatus wound their way through Congress, with both houses showing a newfound willingness to reform the post-9/11 security landscape.
The most promising of these legislative efforts was a bipartisan amendment to a FISA reauthorization bill proposed by Sens. Mike Lee, a Utah Republican, and Patrick Leahy, a Vermont Democrat. This amendment would require the FISA court to make expanded use of amici curiae — outside legal experts with security clearances and expertise in civil liberties. The Lee-Leahy bill passed the Senate with an overwhelming bipartisan 77-19 vote before dying in the House.
While the Lee-Leahy amendment is limited in scope, the protections afforded by its expanded amici program would go a long way toward uncovering law enforcement errors and misconduct in a timely manner.
For example, if these court-appointed civil liberties experts had been empowered to review the Page warrant applications, perhaps the machinations of Clinesmith and others would have been discovered before they harmed an innocent person. The Lee-Leahy reforms could even counter the effects of any partisanship within the FBI. And the added scrutiny by a third party might even compel the FBI to follow the rules in the first place.
Codifying Barr’s rules changes and enacting Lee-Leahy would curb the potential for the FBI to once again veer out of control. Congress should find a legislative vehicle (or two) to make these reforms into law.
Bob Goodlatte is a former congressman from Virginia and chairman of the House Judiciary Committee. Gene Schaerr, a former associate counsel to President George H.W. Bush, is general counsel to the nonpartisan Project for Privacy and Surveillance Accountability.
