Court-Appointed Expert Finds FBI’s Proposed Surveillance Reforms Insufficient

January 16, 2020 Updated: January 20, 2020
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The changes proposed by the FBI to address the profound failures in its secret surveillance applications are insufficient, according to the court-appointed expert overseeing the bureau’s reforms.

David Kris, the expert appointed by the Foreign Intelligence Surveillance Court (FISC), made the conclusion in a filing (pdf) with the court on Jan. 15. In addition to recommending measures in areas the FBI already explored, he proposed a set of broader changes necessary to restore the bureau’s “organizational culture of individual responsibility for rigorous accuracy” with the FISC, he said.

“The FBI is subject to an obligation of scrupulous accuracy in representations made to this Court,” Kris wrote. “It breached that obligation through a series of significant and serious errors and omissions.”

“These corrective actions point in the right direction, but they do not go far enough to provide the court with the necessary assurance of accuracy, and therefore must be expanded and improved.”

On Dec. 19, FISC Judge James Boasberg ordered the FBI to report the actions it is taking and is planning to take in order to address the significant failures in its submissions to the court, detailed in a voluminous report by the Department of Justice Office of Inspector General (OIG).

The inspector general found 17 “basic, fundamental and serious errors” in its review of the four applications the FBI submitted to obtain and renew surveillance warrants to monitor former Trump 2016 presidential campaign adviser Carter Page, according to the OIG report. The failures included withholding exculpatory evidence on Page and withholding evidence that undermined the credibility of a crucial source, among other issues.

Kris’s call for more fundamental reforms at the FBI may partly assuage the concerns of senior Republicans, including President Donald Trump, who criticized the judge’s selection of Kris from a list of experts designated to oversee FISA issues.

Kris has long defended the surveillance of Page and criticized Republicans for casting the spying as part of a broader plot to remove Trump from office. Kris has been an outspoken supporter of impeaching Trump and criticized Rep. Devin Nunes (R-Calif.) for a 2018 memo that documented FISA abuses by the FBI in connection with the Page warrants.

The OIG report largely vindicated the Nunes memo, while finding no concrete evidence that political bias played into the decision to apply for the surveillance warrants on Page. After the release of the OIG report, Kris highlighted that the “errors weren’t political … but neither are they acceptable, particularly in an investigation involving a presidential campaign.”

Kris identified three categories for the reforms proposed by FBI Director Christopher Wray that address the paperwork, training, and audits of the FISA process. Kris suggested, however, that such reforms don’t address the broader issue of individual responsibility and ownership within the bureau’s culture.

“Standards and procedures, checklists and questionnaires, automated workflows, training modules, and after-the-fact audits are all important,” he wrote. “But they cannot be allowed to substitute for a strong FBI culture of individual ownership and responsibility for the accuracy and completeness of FISA applications,” he said.

“Without that, even the best procedures will not suffice; indeed, expanded procedures dictating multiple layers of review and approval could backfire, creating a kind of moral hazard, in which each layer believes, or assumes, that errors have or will be caught by the others.”

The first category consists of new and revised forms, checklists, questionnaires, and documents. The FBI didn’t commit to a timeline for some of the forms, and Kris advised the court to order it to do so. Kris also recommended that the court order the FBI to continuously look for improvements in the FISA application process and report those to the court.

“In general, the various proposed modifications to FISA request forms, checklists, verification forms, CHS questionnaires, supervisor forms, field guidance, and related documents point in the right direction,” Kris wrote. “These reforms are not alone sufficient, but reforms of this sort are clearly necessary.”

“Regular and proactive improvement in standards and procedures that averts a crisis is vastly preferable to reactive improvement compelled by a crisis.”

The second category of the FBI’s recommended reforms addresses training for personnel. Among other suggestions, Kris advised the court to require the FBI to conduct testing on the material taught in FISA trainings. He also recommended ordering that FBI agents who don’t pass tests be barred from submitting FISA applications.

The third category consists of auditing and reviewing the FBI FISA practices. Kris recommended that “the Court should require the government to conduct more accuracy reviews, to expand those reviews, and to conduct a reasonable number of in-depth reviews on a periodic basis.”

The Epoch Times requested comments from the chairmen and ranking members of the Intelligence committees in the House and Senate. None responded by the time of publication.

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