Alan Dershowitz called for a “reshuffle” of the Foreign Intelligence Surveillance Court to protect the privacy of American citizens.
The Harvard Law School professor emeritus told Fox News host Sean Hannity on Friday that anyone, including either of them or their families, could be subject to surveillance abuse if a low-ranking FBI official has a “grudge” and a role in the FISA process.
“This could happen to you or me or anybody. Today, the way the FISA court operates, some low-ranking FBI agent with a grudge against somebody could walk in and say, ‘Dershowitz, Hannity were talking to the Russians, let’s intrude on his privacy, his wife’s privacy, his children’s privacy,'” Dershowitz said after noting that Attorney General William Barr’s memo to the FBI ordering the organization to clear any investigations into 2020 candidates with him may not go far enough.
He took aim at how most of the FISA court’s work is conducted ex parte, in which only one side presents evidence, which has rankled privacy advocates since the FISA court was established by Congress in 1978 to oversee the approval of surveillance warrants sought by federal law enforcement and intelligence agencies. On its website, the court says secret ex parte proceedings are necessary to protect classified national security information.
“We need to reshuffle the entire FISA court,” Dershowitz said. “We need to have a defense attorney in there with security clearance who plays the devil’s advocate, like when the Catholic Church gives somebody sainthood, you need to have somebody arguing the other side. Here, you have to have somebody who has security clearance saying no, no, no. Hold up. This is not verified. This is not good.”
Reforms are already being considered after Justice Department Inspector General Michael Horowitz released a scathing report on alleged FISA abuses that faulted the Justice Department and the FBI for 17 “significant errors and omissions” during the process of obtaining FISA warrants to wiretap Trump campaign adviser Carter Page. The independent watchdog was particularly critical of the FBI’s reliance on British ex-spy Christopher Steele’s unverified dossier to obtain the authority to wiretap Page, an American citizen suspected of being an agent for Russia but was never charged with any wrongdoing.
A FISA court filing made public last month said the Justice Department found that “in view of the material misstatements and omissions,” the final two orders targetting Page “were not valid.” It remains unclear whether the department believes the first two orders also had serious issues. FBI Director Christopher Wray testified to Congress this week that every FBI official named in the Justice Department watchdog report on FISA abuse is being reviewed for possible disciplinary action. Former FBI lawyer Kevin Clinesmith, who had altered a key document in the Page FISA filings, is already under criminal investigation by U.S. Attorney John Durham, a prosecutor from Connecticut who was tasked by Barr with investigating the origins of the Russia inquiry.
Dershowitz, who was a member of Trump’s legal defense team during the Senate impeachment trial, said he has been arguing for FISA reform since its inception, but he now believes there is a real possibility for positive change.
“Finally, I think we have the joint, hopefully, bipartisan support for changing FISA to protect all American citizens, not just politicians,” he said.
