House Republicans deciding whether certain Foreign Intelligence Surveillance Act powers will be reauthorized warned the FBI about its “trust” deficit with Congress and the public as intelligence chiefs pointed to the tool’s use against China.
FBI Director Christopher Wray and other spy chiefs were grilled about FISA during a House Intelligence Committee hearing on Thursday.
The reauthorization, which must be done before the specific FISA authorities expire at the end of 2023, is sure to meet opposition from some Republicans given FISA abuses unearthed related to the FBI’s use of Christopher Steele’s discredited dossier to obtain flawed FISA surveillance against Trump campaign associate Carter Page during and after the 2016 election.
Rep. Mike Turner (R-OH), chairman of the committee, put together a working group led by Rep. Darin LaHood (R-IL) to deal with the renewal process for FISA Section 702. Turner, LaHood, and other Republicans argued Thursday that the FBI and the intelligence community need to regain the trust of Congress and the public before the powers are reauthorized.
“Unfortunately, there are far too many members of Congress on both sides of the aisle that question whether the executive branch can be trusted with this powerful tool,” LaHood told Wray. “And that’s because in the past and currently there have been abuses and misuses of 702 by the FBI. I believe that a clean legislative reauthorization of 702 is a nonstarter. … You must first acknowledge that a problem exists before we can formulate meaningful reforms to build back trust and confidence in the FISA process.”
Wray asserted that “no violations are defensible” and added that the FBI misdeeds unearthed from its Trump-Russia Crossfire Hurricane investigation constituted “conduct that I consider totally unacceptable,” insisting he had implemented significant reforms since then.
The portion of the FISA law the Biden administration is seeking reauthorization for is not directly connected to the Carter Page saga but rather relates to Section 702, which the Office of the Director of National Intelligence describes as “a key provision” of FISA “that permits the government to conduct targeted surveillance of foreign persons located outside the United States.”
Wray admitted Thursday that “there have been compliance incidents that have to be addressed” related to the FBI’s misuse of 702 and said the FBI had also taken steps to fix that.
“We are absolutely committed to making sure that we show you, the rest of the members of Congress, and the American people that we’re worthy of these incredibly valuable authorities,” Wray said.
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A recently declassified intelligence document concluded that “misunderstandings regarding FBI’s systems and FBI’s querying procedures caused a large number of query errors” related to 702. LaHood said the FBI’s “significant trust issue with members of Congress” was “made worse” by the declassified report.
Wray admitted that “we clearly have work to do,” saying real questions were being raised and that “we brought them on ourselves.” He pointed to a new internal audit office focused almost exclusively on FISA compliance.
LaHood called 702 an “invaluable tool” but said the working group must pursue “reforms and safeguards” before reauthorization.
Justice Department Inspector General Michael Horowitz’s report in December 2019 criticized the department and the FBI for at least 17 “significant errors and omissions” related to the FISA warrants against Page, for concealing potentially exculpatory information from the FISA court related to collusion denials by Trump associates, and for the bureau’s reliance on the Steele dossier.
Rep. Chris Stewart (R-UT) also shared concerns from a constituent on Thursday about FBI screw-ups and scandals. The congressman said 702 needs to be reauthorized but that it needs reforms first.
“Like any major institution, we have made mistakes,” Wray said, adding, “We are determined to be worthy of the trust of all Americans.”
Rep. Brian Fitzpatrick (R-PA) said he believed a big challenge for the intelligence community is the “perception of political bias” from the public.
Wray said “perception” matters too and pointed to training he had given to top FBI leadership and then to the whole workforce about the importance of nonpartisanship.
Director of National Intelligence Avril Haines agreed that “this is a critical issue” and said intelligence community culture should make clear that “politics have no place” there.
Rep. Trent Kelly (R-MS) said there had been “an erosion of trust” for the intelligence community. Haines insisted that “having the trust of the American people with respect to the intelligence community is absolutely fundamental” and said she was working to “ensure we are doing things in accordance with the law.”
Turner provided Wray with a letter asking him to show how recent FBI reforms would have prevented past abuses.
Assistant Attorney General Matt Olsen also admitted last month that the Biden administration’s FISA renewal effort faced a “politics” problem as well as a “trust” problem related to FISA and Crossfire Hurricane.
Originally conceived as mainly a counterterrorism tool in the wake of 9/11, top Biden officials have sought to emphasize the role FISA plays in combating threats posed by China and other foreign foes.
Haines said Thursday that 702 was “crucial” in the realm of “counterintelligence,” especially when looking at where and how China is sending spies into the United States, noted it was key in stopping Chinese cyberattacks, and called it the “most effective way” to gather info on adversaries outside the U.S.
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CIA Director William Burns agreed with Haines and said 702 also allows for focus on Chinese sanctions evasion and intellectual property theft, calling it “extremely important.” National Security Agency Director Paul Nakasone declared that 702 “is the No. 1 authority we need” against China.
Rep. Abigail Spanberger (D-VA) asked about the intelligence community’s fight against the fentanyl crisis, and Burns brought up 702 again, calling it a “crucial tool” in focusing on fentanyl networks ranging from Chinese precursor production to Mexican cartels. He argued that “702 has been crucial in illuminating that network for us.”
