Senate Judiciary Chairman Lindsey Graham said the Foreign Intelligence Surveillance Court might have to be eliminated if there is no fundamental reform following a report that found issues with the FBI’s use of the surveillance process.
Arguing that missteps by the Justice Department and FBI should never be made again, the South Carolina Republican made his case for change at a hearing Wednesday with the DOJ watchdog, who assessed the Trump-Russia investigation.
“I’m a pretty hawkish guy, but if the court doesn’t take corrective action and do something about being lied to, you will lose my support,” Graham told DOJ Inspector General Michael Horowitz during a lengthy opening statement. “I know a lot about what’s going on out there to hurt us, and they are real threats, and they are real agents. And they are really bad actors out there. I would hate to lose the ability of the [Foreign Intelligence Surveillance Act] court to operate at a time, probably when we need it the most. But after your report, I have serious concerns about whether the FISA court can continue unless there is fundamental reform.”
The focus of Horowitz’s inquiry was examining allegations of FISA abuses against onetime Trump campaign associate Carter Page related to the FBI’s reliance on a salacious and unverified dossier compiled by British ex-spy Christopher Steele. Horowitz concluded that the FBI’s investigation was filled with serious missteps and the concealment of exculpatory information from the FISA court. The report said at least 17 “significant errors and omissions” were discovered in the Page FISA applications spanning from October 2016 to summer 2017.
After Monday’s release of Horowitz’s report, Senate Republicans want to see more scrutiny on the FISA application process ahead of the reauthorization of three FISA provisions. The three FISA measures expected to sunset on March 20, after Congress’ passage of a government-funding bill last month, are the business records, roving wiretaps, and lone-wolf provisions.
Graham has long been a staunch supporter of the FISA process as a national security tool but said that some of the 17 flaws uncovered by Horowitz “are earth-shattering” and “should scare the hell out of all of us.”
“What has been described as a few irregularities become a massive criminal conspiracy over time to defraud the FISA court, to illegally surveil an American citizen, and to keep an operation open against a sitting president of the United States, violating every norm known to the rule of law,” Graham said. “Trump’s time will come and go. But I hope we understand that what happened here can never happen again because what happened here is not a few irregularities. What happened here is the system failed. People at the highest level of our government took the law into their own hands. And when I say defraud the FISA court, I mean it.”
Graham said fixing these problems is possible.
“I think Democrats and Republicans are willing to make sure this never happens again — that if you open up a counterintelligence investigation on a presidential campaign in the future, there needs to be more checks and balances,” he said.
Graham called on Horowitz “to audit the FISA process” and said he planned on calling in FBI Director Christopher Wray to discuss what other fixes might be needed.
“I think we need to rewrite the rules of how you start a counterintelligence investigation and the checks and balances that we need,” Graham said. “Mr. Horowitz, for us to do justice to your report, we have to do more than try to shade this report one way or the other. We have to address the underlying problem of a system in the hands of a few bad people can do a lot of damage.”
The inspector general determined that the initiation of the Trump-Russia investigation in July 2016 crossed the low threshold to be properly predicated, although Attorney General William Barr has cautioned this assessment is not absolute and will be more fully addressed in U.S. Attorney John Durham’s inquiry into the Russia investigation.
The DOJ watchdog is known to have criminally referred only one FBI lawyer, Kevin Clinesmith, who has since left the bureau, for altering an email that was used by officials as they prepared an application renewal to present before the Foreign Intelligence Surveillance Court.
Horowitz said that, as a result of the flaws in the FISA process, key information was not shared with DOJ leadership and the FISA court. “The FISA applications made it appear as though the evidence supporting probable cause was stronger than was actually the case,” Horowitz said.
The errors in the FISA approval process included concealing exculpatory information obtained through confidential human sources, which showed Trump campaign members and associates disputed many of Steele’s allegations and denied Steele’s claims of a grand conspiracy between the Trump campaign and the Russians. Horowitz also concluded the bureau withheld from the FISA court information they obtained that cast doubt on Steele’s credibility and the credibility of his sources and most salacious claims.
As seen in an appendix at the bottom of Horowitz’s report, Wray ordered the FBI to take more than 40 corrective steps to address the inspector general’s recommendations.
