Shadowy FISA Court at Center of IG Report Could See Major Changes, Senators Say

Justice Department Inspector General Michael Horowitz arrives to testify about the Inspector General's report on alleged abuses of the Foreign Intelligence Surveillance Act (FISA) during a Senate Judiciary Committee hearing on Capitol Hill in Washington on Dec. 11, 2019. Saul Loeb/AFP via Getty Images

Several lawmakers are calling for reforms to the Foreign Intelligence Surveillance Court (FISA court) and its warrant application process following a damning report from Justice Department Inspector General Michael Horowitz, who found that the FBI was able to mislead courts to surveil Trump campaign adviser Carter Page.

“I have serious concerns about whether the FISA court can continue unless there is fundamental reform. After your report, I think we need to rewrite the rules of how you start a counterintelligence investigation and the checks and balances that we need,” stated Senate Judiciary Chairman Lindsey Graham (R-S.C.) during the Judiciary Committee hearing on Wednesday. “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. The system and the hands in a few bad people can do a lot of damage.”

The renewed interest in the court comes after a Judiciary hearing on Wednesday, with some Senators indicating they want a bipartisan measure to overhaul the process.

The FISA court was authorized via the Foreign Intelligence Surveillance Act of 1978, and it is made up of 11 judges who serve seven-year terms and are selected by the Supreme Court’s Chief Justice. They sign off on warrants related to national security and intelligence gathering.

It “entertains applications submitted by the United States Government for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes,” according to a description on the court’s website.

But one lawmaker has pilloried the court for years.

“Look, it’s been badly abused,” Sen. Mike Lee (R-Utah) told Fox News. “I’ve been saying for years, for the nearly all the nine years I’ve served in the United States Senate, that this is a statute that’s rife with opportunities for abuse. I knew that it would not be a question of if, but when and how badly it would be abused.”

“That’s now happened,” he added. “I’ve now got people at every end of the political spectrum on the Senate Judiciary Committee and the Senate as a whole saying that FISA, the foreign intelligence surveillance act as it now stands, cannot stand any longer. We’re going to scrap this thing, we’re going to undertake a major overhaul, or we’re not going to let this be business as usual.”

Horowitz’s report, released Monday, noted at least 17 significant errors in the FBI’s attempts to get a FISA warrant to surveil Page, adding that it also relied on information gathered from former British spy Christopher Steele, who had been contracted by the Democratic National Committee, to produce opposition research against Trump.

“These errors and omissions resulted from case agents providing wrong or incomplete information to [the National Security Division’s Office of Intelligence] and failing to flag important issues for discussion,” Horowitz said in his report.

During the hearing, several senators made note of Lee’s efforts to reform the FISA court.

“I wish Mike Lee weren’t sitting here two people from me right now, because as a national security hawk, I’ve argued with Mike Lee in the four-and-a-half or five years that I’ve been in the Senate that stuff just like this couldn’t possibly happen at the FBI and at the Department of Justice,” Senator Ben Sasse (R., Neb.) said in the hearing. He added: “Mike Lee has warned me for four-and-a-half years the potential for abuse in this space is terrible and I constantly defended the integrity and the professionalism of the bureau and of the department that you couldn’t have something like this happen.”