The Justice Department called on the House to follow the Senate and temporarily reauthorize expired Foreign Intelligence Surveillance Act powers, which Speaker Nancy Pelosi declined to do when the lower chamber passed an emergency coronavirus relief bill.
The House approved the massive $2.2 trillion package on Friday, after which President Trump signed it, but Pelosi declined to use the opportunity to vote on extending key DOJ counterterrorism and counterintelligence surveillance authorities that lapsed in mid-March.
“The Department made strong reforms to the FISA process, many of which are reflected in the House-passed reform legislation, that it believes will address the misconduct of the past,” DOJ spokeswoman Kerri Kupec said over the weekend. “We urge the House to approve the Senate-passed temporary extension of the U.S. Freedom Act as soon as possible to avoid any further gap in our national security capabilities over the next several weeks.”
Last month, the House passed a bipartisan bill that reauthorized FISA-related lone wolf, roving wiretap, and business records powers and instituted a number of reforms. They expired in the middle of March.
The Senate reached an impasse in considering the House bill due to objections from libertarian-leaning GOP Sens. Mike Lee of Utah and Rand Paul of Kentucky. Instead, the upper chamber greenlighted a 77-day reauthorization and promised to take the House bill back up and consider amendments in April.
Pelosi has yet to give the House the same opportunity to revive those powers in the short term, and the lower chamber is on recess until April 20.
“There’s no way to spin it,” Doug Andres, the press secretary for Senate Majority Leader Mitch McConnell, told the Washington Examiner. “Speaker Pelosi’s decision to let [the] House leave without acting on a FISA extension was reckless.”
The House’s proposed legislation included reforms to the FISA process to strengthen congressional oversight and discourage politicized investigations, and the leadership of both parties in the House and Senate supported renewing those powers and passing the House reforms. But Lee and Paul opposed it, and Trump hinted he might veto the House’s version.
The expired roving wiretap powers let agents continue tracking a suspect even if they switch burner phones, the lone wolf amendment allows officials to monitor suspected terrorists with possible foreign links, and the business records provision gives investigators the ability to collect documents and follow the money.
Other Senate Republicans told Politico they blamed Pelosi for letting the FISA powers languish.
“The House needs to get this done. If they can pass a $2 trillion bill by voice vote or unanimous consent, they certainly could do this,” Sen. John Cornyn of Texas said. “I don’t think leaving town without addressing it is the responsible thing to do.”
Sen. Kevin Cramer of North Dakota said Pelosi’s decision seemed “reckless.”
“The 77 days was sort of the perfect compromise,” Cramer said. “And, when you strike that balance to make it easy, frankly, for unanimous consent in both chambers, it’s frustrating that they didn’t call it up, and it does put the work of the intelligence agencies at risk.”
Drew Hammill, the deputy chief of staff for Pelosi, told the Washington Examiner the blame was squarely with Senate Republicans.
“The House passed a very bipartisan FISA bill, which contained significant reforms, increasing transparency, oversight, and protections for civil liberties and privacy,” Hammill said. “In spite of significant bipartisan support among senators for the House bill, leader McConnell failed to take up the House bill and instead struck this risky delay deal in order to appease Sen. Lee.”
The war of words came after a newly released report by DOJ Inspector General Michael Horowitz illustrated that FISA flaws were not limited to the bureau’s targeting of Trump campaign associate Carter Page.
Horowitz’s preliminary audit released on Tuesday focused on the bureau’s requirement to create and maintain an accuracy subfile known as a “Woods file” to ensure that factual assertions in FISA applications are backed up by demonstrable evidence.
“We believe that a deficiency in the FBI’s efforts to support the factual statements in FISA applications through its Woods Procedures undermines the FBI’s ability to achieve its ‘scrupulously accurate’ standard for FISA applications,” Horowitz concluded.
The inspector general’s audit was a follow-up to his larger report in December focused on the Page warrants. That report criticized the DOJ and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants for Page and for the bureau’s heavy reliance on British ex-spy Christopher Steele’s salacious and unverified dossier. Steele put his research together in 2016 at the behest of the opposition research firm Fusion GPS, which was funded by Hillary Clinton’s presidential campaign and the Democratic National Committee through the Perkins Coie law firm.
On Tuesday, the DOJ watchdog revealed that, for four of the 29 applications his team had reviewed, “the FBI either has been unable to locate the Woods File that was prepared at the time of the application” or that “FBI personnel suggested a Woods File was not completed.”
For the remaining 25 applications, Horowitz’s investigators identified claims in the FISA applications that were either not supported or corroborated by or were inconsistent with the documentation in the Woods files.
“The Department of Justice welcomes the Inspector General’s ongoing audit and fully agrees with the report’s two recommendations,” Kupec tweeted in response on Tuesday. “The Department and the FBI have been hard at work implementing the more than forty corrective actions that FBI Director Christopher Wray ordered last year to reform the FBI’s FISA processes and procedures in response to the inspector general’s previous report and recommendations. Attorney General Barr has also issued additional accountability measures with respect to the opening of politically sensitive investigations.”
Kupec said the Justice Department is committed to “implementing reforms that will ensure that all FISA applications are complete and accurate” and emphasized that the legislation passed by the House would help address that.
