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EDITORIAL: FISA court abuses were much more widespread

Updated April 2, 2020 - 9:22 pm

The coronavirus threat overwhelms the news cycle, crowding out other events. But there are other events — many of them of importance.

This week, for example, the office of Justice Department Inspector General Michael Horowitz released a report on the FBI and its relationship with the secret federal court created in 1978 to combat foreign espionage and terrorism. The conclusions should concern those who value civil liberties.

The inspector general looked at more than two dozen secret warrant applications in which the FBI sought permission from the U.S. Foreign Intelligence Surveillance Court to wiretap Americans for national security reasons. Not one of the 25 requests passed muster, the review concluded, with each application having 20 issues on average.

“Clearly what Mr. Horowitz found is unacceptable, period, full stop,” Jim Baker, former FBI general counsel who now serves as director of national security and cybersecurity for the R Street Institute, told The Wall Street Journal. “Everyone, including the attorney general, is going to need to dedicate more resources to make sure that this is done properly.”

The issue gained attention last year when it was revealed the FBI had cut corners in its applications asking the FISA court to sanction surveillance of Carter Page, a former adviser to Donald Trump’s presidential campaign, as part of its investigation into Russian collusion allegations. That led to a highly unusual public rebuke of the law enforcement agency from the chief FISA judge. But the new IG report indicates that the Page missteps were not unusual.

“If an application as sensitive as Page’s had serious problems, it was highly likely there were going to be issues elsewhere,” Jake Laperruque, senior counsel for Project on Government Oversight, told the Journal.

FBI officials maintain they have made reforms in response to the findings. But that’s impossible to judge, given the surreptitious nature of the proceedings, highlighting the dangers inherent in secret justice conducted absent serious oversight.

But of equal importance, where is the accountability for such abuses? Not one application in the past five years was without problems, according to the IG report. Will the agents and supervisors who repeatedly put their names on these wiretap requests just carry on without consequence?

In addition, the IG report should be a glass of cold water to the faces of the 11 FISA court judges, who routinely sign off on government wire-tapping requests. The Journal reported in 2013 that, between 1979 and 2012, the court had rejected only a dozen of more than 30,000 applications. If this court is to survive with a commitment to eliminating abuses, the IG report suggests, these FISA judges must be much more aggressive in scrutinizing FBI requests.

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