The Foreign Intelligence Surveillance Court dodged questions posed by Republican congressmen concerned about its selection of Obama official and longtime FBI defender David Kris to advise it on FISA reforms.
Judge James Boasberg, the FISA court’s presiding judge, did not mention Kris’s name in the two-page letter obtained by the Washington Examiner, but said the input the court would receive from the hand-picked adviser, known as an amicus curiae, is “purely advisory, and it is the court, not the amicus, that oversees each matter and determines its outcome.”
Reps. Jim Jordan of Ohio and Mark Meadows of North Carolina sent the FISA court a letter in mid-January, asking specific questions about which candidates aside from Kris the spy court had considered. In their letter, the lawmakers asked whether the court had considered biased writings and statements Kris made about the matter he was asked to about Trump campaign associate Carter Page, his criticisms of former House Intelligence Committee Chairman Devin Nunes, and his defenses of the FBI’s Trump-Russia actions.
“While we readily acknowledge that it is important for interested members of Congress to understand these matters thoroughly, it would be inconsistent with well-established principles of judicial conduct and ethics, as well as longstanding traditions of separation of powers among the branches, for the Court to comment on matters that have come before it or to discuss its thought processes or internal deliberations,” Boasberg wrote at the end of January. He assured congressmen that “our Court recognizes how important it is to the nation that the FISA process operates efficiently and fairly.”
Boasberg provided only what he called a “general explanation regarding the selection of amici.” The judge pointed to the list of eight possible current court-approved advisers, including Kris, and said “it is not uncommon for the most qualified amici to have written, lectured, and spoken on issues within their expertise” and “in picking from the group of designated amici on a given matter, the FISC typically considers availability, interest, subject-matter expertise, as well as potential financial or fiduciary conflicts of interest in the individual matter.”
Kris, a former assistant attorney general with the Justice Department’s national security division during the Obama administration, had supported the FBI’s Trump-Russia investigation and criticized Nunes’s 2018 memo on alleged FISA abuses. Last month, he was selected to oversee the implementation of reforms in response to a scathing Justice Department report by DOJ watchdog Michael Horowitz on serious errors found in the FBI’s efforts to wiretap Page.
A Republican official with knowledge of the ongoing congressional FISA reform process blasted the judge’s letter.
“The FISC’s response, or lack thereof, raises alarms about whether the court is serious about FISA reform and the illegal surveillance of Carter Page,” the GOP official said. “By failing to even mention David Kris in the letter, the FISC made it clear that they have no problem using a clearly biased, Obama-era official, who doesn’t even believe that Carter Page was illegally surveilled, to oversee reforms of the failed FISA process.”
Said the GOP official: “It’s really quite something that a court like the FISC would so blatantly ignore a legitimate congressional inquiry.”
Kris filed a letter with the FISA court last month where he said the reforms proposed by the FBI in the wake of the Horowitz report were “insufficient” thus far and that the bureau “must restore” a “culture of accuracy and completeness” in the FISA process.
Jordan and Meadows previously laid out three main objections to Kris’s appointment by the court.
The first was that Kris “boasted about the rigorous process or FISA warrants” prior to the Nunes FISA memo and then claimed Nunes’s assertion that “the FBI misled the court was itself misleading” once the Nunes memo was made public.
“Mr. Kris was wrong,” the congressmen said.
The second was the former Obama official “seemingly prejudged the FBI’s conduct with respect to Carter Page” when hundreds of pages of heavily redacted FISA applications on Page were released in the summer of 2018, when Kris predicted that “it’s going to get worse, not better” for Page.
But, the congressmen said, the inspector general “confirmed that the FBI illegally surveilled Mr. Page.”
And thirdly, following the release of the Horowitz report, Kris “seemed to minimize the FBI’s actions” when he said the FBI’s misconduct wasn’t “political” and when he attributed the missteps to sloppiness.
“However, inspector general Horowitz testified that the office of inspector general’s review did not rule out political bias or intentional misconduct,” Jordan and Meadows said.
Remaining unanswered were a number of questions. These included whether the FISA court bore responsibility for the FISA abuse, when it first received evidence the FBI was misleading the court and how it responded, and other matters.
