Home / Articles / What is the FISA Agenda as the New Decade Begins?
The Foreign Intelligence Surveillance Act (FISA) enters 2020 under the microscope in a way seldom seen in the four decades in which it has served as the touchstone for conducting foreign intelligence electronic surveillance in the United States. Consequently, as the calendar has turned to January, now is as good a time as any to see what is on the FISA agenda for the new year.
An Update on FISA’s Present Posture
In 2019, the most significant FISA-related issue was the question of Congress renewing three FISA authorities facing sunset on December 15, 2019. Those three provisions were the (1) “lone wolf” surveillance authority, (2) the “roving wiretap” authority, and (3) the “access to business records” authority, which includes the “call detail record (CDR)” provisions that were the subject of congressional reform following the Edward Snowden disclosures. In November 2018, as 2019 approached, I wrote about the anticipated debate that I expected to surround the decision on whether or not to extend these authorities.
The absence of any material activity on the reauthorization issue until late 2019 was no surprise given the crowded congressional calendar. But, the traditional legislative logjam was exacerbated in 2019 by deep partisan divide and major developments impacting the congressional agenda including, inter alia, the release and subsequent fencing over the Mueller Report, the controversies that ultimately led to the impeachment of Donald Trump, and, on December 9, 2019, the release of Justice Department Inspector General Michael Horowitz’s report titled Review of Four FISA Applications and Other Aspects of the Crossfire Hurricane Investigation (the “Horowitz Report” or “Report”). These matters, particularly the House impeachment inquiry, left the legislative calendar in tatters, so it was no surprise that, in late November before the Horowitz Report was even issued, Congress added a little-noticed provision to an appropriations bill that extended the sunset date for the aforementioned FISA authorities until March 15, 2020.
When Congress finally takes up reauthorization of these three FISA provisions, it will do so in an environment that has changed significantly for FISA since the modest sunset extension passed in November 2019. What is now in FISA’s future as the calendar rolls forward? Or, stated more succinctly, will the Horowitz Report impact the coming reauthorization debate and, if so, will the Report’s findings prompt Congress to expand its examination of FISA beyond these three sunsetting FISA provisions?
Congressional reaction to the Horowitz Report has been limited largely to the sentiments expressed by members of the Senate Judiciary Committee during the Justice Department inspector general’s December 11, 2019 testimony (and by other senators following a hearing a week later where Horowitz testified before the Senate Homeland Security and Governmental Affairs Committee); but, the Foreign Intelligence Surveillance Court (FISC) has been considerably more proactive. Even before the Report was publicly issued in redacted form on December 9, 2019, the Justice Department’s internal review of the inspector general’s findings prompted a letter from DoJ reporting to the FISC on the FBI’s failure to disclose to the court that, inter alia, a former attorney in the FBI’s Office of General Counsel (subsequently identified by media sources as Kevin Clinesmith) had altered an email from “a separate United States Government Agency” (reportedly, the CIA) in which the CIA had reported to the FBI that it had a “prior reporting relationship” with Carter Page. Clinesmith had altered the email to state that Page was not a (CIA) source, and the FBI had failed to notify the FISC of any of these material facts.
The FISC wanted to know why, and, in an order issued on December 5, 2019, directed the government to: (1) identify all other matters before the FISC in which the “FBI OGC Attorney (i.e., Clinesmith) was involved;” (2) describe the steps taken by DoJ and the FBI to insure that all submissions related to those matters completely and fully described the material facts and circumstances; and (3) advise whether the conduct of the FBI OGC attorney had been referred to the appropriate bar association(s) for investigation or possible disciplinary action.
The FISC followed up with a second order on December 17, 2019. Ominously captioned “In re Accuracy Concerns Regarding FBI Matters Submitted to the FISC,” the order directs, inter alia, that, by January 10, 2020, the FBI provide
a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.
Distilled to its essence, the FISC has directed the FBI to deliver, under oath, a written explanation of the measures it is taking to ensure that every FISA application submitted by the FBI, both prospectively and retroactively, is accurate as to all material facts, a timetable for providing such assurance to the FISC, and an acceptable explanation for why, until these measures are implemented, the FISC should accept any FBI FISA application as reliable. Presumably, the DoJ and the FBI have spent the recent holiday season preparing a response.
Coincidentally or not, the FISC’s recent orders related to the FISA matters discussed in the Horowitz Report were accompanied by an announcement that Rosemary Collyer was stepping down as chief judge of the FISC. Chief Justice John Roberts has appointed James Boasberg as her replacement. Judge Boasberg is the first Democrat in nearly a quarter century to serve as FISC chief judge; but, more relevant to the question of the FISC continuing to hold the FBI’s feet to the fire regarding the serious deficiencies identified in the Horowitz Report related to the Carter Page FISA applications, Boasberg also happens to be the author of an October 2018 opinion (redacted and publicly released by the Director of National Intelligence in October 2019) that is highly critical of the FBI and initially refused to approve the government’s 2018 FISA Section 702 surveillance certification because of the FBI’s failure to comply with mandated Section 702 querying and minimization procedures. In other words, the FBI already has had a distinctly uncomfortable experience with Judge Boasberg that may make rehabilitating its credibility with the FISC that much more difficult.
What Lies Ahead in the Aftermath of the Horowitz Report
There having now been some opportunity to reflect on the content of the Horowitz Report, attention will likely turn to prioritizing the issues that the Report has identified. In the space that follows, I offer some thoughts on the question of “political bias” as it relates to Crossfire Hurricane: the issue that seems most important to the White House and the president’s supporters. Then, from the standpoint of the direct impact on FISA and counterintelligence matters generally, I speak to the effect of the Horowitz Report on the only Intelligence Community agency it addresses—the FBI.
On the Issue of “Political Bias”
Effective redress of the matters addressed by the Justice Department’s inspector general will necessarily depend on an informed grasp of the flaws that the Horowitz Report details while avoiding the continued diversions attempted by those still flogging the “political bias” theory that the Report largely turns away. There is need for the modifier “largely” because while the Report finds no evidence of bias, it also reaches no affirmative conclusion that bias was absent from all aspects of its investigative inquiry. Indeed, especially with respect to the events surrounding the Carter Page FISA applications, the inspector general made a point to observe that, while there was no documented evidence of bias, neither was he provided with satisfactory explanations for the serial errors that occurred with respect to the Page FISA applications.
If there was a level of politicization in the FBI (and DoJ) that impacted the performance of official duties—whether in the decision to launch the Crossfire Hurricane investigation or, subsequently, in its execution—this would be a matter of paramount concern. The presence of varied political viewpoints in the federal workforce, including those components entrusted with investigative and law enforcement functions, should come as no surprise—the recognition that federal employees have political views is not news—but the expression of those viewpoints in a manner that affects performance or impacts discretionary judgments should concern everyone regardless of political persuasion. David Kris, the former Assistant Attorney General of the Justice Department’s National Security Division and a frequent commentator on matters relating to FISA, describes the danger as the “operationalized politicization of intelligence and law enforcement,” and accurately prioritizes it as the principal danger addressed by the DoJ inspector general.
Horowitz’s investigation carefully scrutinized the precise question of whether the decision to initiate the Crossfire Hurricane investigation, or the subsequent execution of that investigation, was impacted by the political biases of participating FBI or DoJ personnel. The inspector general found no evidence of such bias.
Of course, privately held subjective bias is difficult to expose. Consequently, it may never be possible to objectively discount the presence of political bias—especially to those whose perceptions are shaped by the echo chamber reverberating with the views of partisans most interested in promoting the existence of such bias. Nonetheless, for those willing to entertain objective reason, an apolitical, impartial reading of the findings of the Horowitz Report (and Part I of the Mueller Report, as well) should reinforce the realization that the overarching focus of Crossfire Hurricane was Russia, not the Trump campaign. In fall 2018, former FBI general counsel James Baker told Congress, “[t]he FBI’s counterintelligence investigation regarding the 2016 campaign fundamentally was not about Donald Trump but was about Russia. Full stop. It was always about Russia. It was about what Russia was, and is, doing and planning.” With that essential point firmly in mind, some other takeaways seem clear after reflecting on the Horowitz Report: (1) the investigation was properly “predicated” under FBI guidelines; (2) the Lisa Page/Peter Strzok diversion is just that—poor judgment by two individuals that produced no operational effect on the investigation; (3) the Carter Page FISA applications reflect serious shortcomings and noncompliance with FBI procedures for which the FBI has failed to provide acceptable explanation; and (4) assessing the extent of the “FISA application problem” at the FBI should await Horowitz’s audit of the entirety of the FBI’s “Woods” files and the FBI’s response to the orders issued by the FISC which also seek further information on the FBI’s FISA submissions to that court.
David Kris has summarized the Horowitz Report’s conclusions on political bias in terms that comport with my own reading of the Report:
On balance, to sum it up in one (very long) sentence, I think it is fair to say the following about the inspector general’s report and the possibility of political bias in Crossfire Hurricane: (a) Horowitz did a very thorough investigation; (b) in the course of that investigation he was very much on the lookout for evidence of political bias that could have affected the conduct of Crossfire Hurricane; (c) he searched in the right places at the FBI and the Justice Department for such evidence (including agents’ text messages and emails, and the classified files); (d) he nonetheless did not find evidence of such bias; (e) he did find evidence affirmatively supporting the absence of political bias (including through the presence of evidence that justified various investigative steps and in testimony from FBI and Justice Department officials whose credibility does not appear to be seriously in question); but (f) he did not receive satisfactory explanations for the various significant failures that occurred in the investigation, which leaves the issue more open than it otherwise would be.
This seems a fair assessment of the inspector general’s evaluation of whether the initiation or execution of Crossfire Hurricane was motivated by political bias. It should serve as acceptable rebuttal to those who might undermine appropriate remedial efforts by continued promotion of the warped agenda that Crossfire Hurricane was spawned by “Deep State” political bias.
For the FBI: FISC Reviews, Compliance Issues, and Functional Tension
Political bias aside, from the standpoint of prospective action affecting FISA, the most important developments will be impacted most directly by the ongoing inquiries into internal FBI FISA procedures. Given the sensitivity of the underlying operational details that were almost certainly included in the FISA materials reviewed by the inspector general (and will equally likely be included in the submissions presented to the FISC and/or to Congress), it seems no stretch to conclude that security concerns will impact the level of public disclosure possible with respect to these materials. Meaningful reform can be achieved consistently with appropriate security actions; however, one can only trust that such operational security concerns will not be exploited for, and meaningful reforms frustrated by, political considerations—although, in this instance, if the past performance of certain government actors in both the executive and legislative branches can be viewed as reasonably affording some level of insight into likely future conduct, then that insight is not promising in terms of favoring meaningful reform over partisan interest.
Nonetheless, as the fallout from the inspector general’s Report unfolds, there are a few salient points to keep in mind. First, the significant problems identified by the Horowitz Report regarding the Carter Page FISA applications are not symptomatic of defects in the FISA statute itself, or of a compromised FISC. Neither the inspector general’s findings nor the evidence relied upon in producing those findings reveals a flaw in the carefully structured FISA statutory scheme. And, insofar as the FISC is concerned, simply put, the court cannot consider and deliberate on facts that it does not receive. Those who insist that the Carter Page FISA applications demonstrate the need for substantial change to, or elimination of, the FISC are pursuing a separate agenda for reasons of their own; but the Horowitz Report lends no support to their cause.
The same cannot be said for the FBI, the only Intelligence Community component whose activities are addressed by the Report. On the one hand, the “good” news is that nothing in the Report identifies a subsisting statutory defect that presumably would impact all agencies engaged in FISA surveillance activities. Conversely, the inspector general’s painstaking recounting of the repeated violations of internal FBI procedures in the Bureau’s mishandling of the four Carter Page FISA applications highlights that the FBI has serious compliance issues that demand a broad review of the FBI’s FISA application practices. Those repeated violations will now receive extensive scrutiny by the FBI, the Justice Department and, based upon the orders it issued in December 2019, by the FISC as well. Inspector General Horowitz already has signaled his intent to fully audit the FBI’s compliance with its Woods Procedures in all FISA applications that target U.S. persons in both counterintelligence and counterterrorism investigations.
Without suggesting that its past practice has been less rigorous, logic dictates that future FISA applications will be even more thoroughly vetted by the FISC—with the FBI’s now receiving microscopic review. Moreover, once the court has satisfied itself that it has received the necessary facts and explanations from the FBI as directed by its December 2019 orders, it may choose to adopt procedural rules designed to protect against a recurrence of the events that led the FISC to authorize the surveillance of Carter Page without receiving all facts material to making those authorizations.
It remains to be seen whether this will be enough for Congress, or whether Congress will even await completion of these various remedial undertakings before initiating its own actions. Calling the inspector general to testify within days of the release of the unredacted Report is surely not the last congressional word on the matters laid bare by the Horowitz Report, and the reauthorization debate that will address those FISA provisions now scheduled to sunset on March 15, 2020 will certainly be viewed by some legislators as an opportunity for an examination of FISA that extends well beyond the three authorities up for renewal.
Given the compliance problems identified by the DoJ inspector general, one particular characteristic of the FBI likely to receive renewed attention is a reexamination of the relationship between the counterintelligence and law enforcement functions of the FBI. The FBI’s effort to ensure an appropriate balancing of these functions has been the subject of almost perpetual criticism from civil liberties activists. So, while many of the problems identified with Crossfire Hurricane by the inspector general seem to have their origin in some rather unusual staffing and organizational decisions made within the FBI, critics of the Bureau’s dual roles rarely miss an opportunity to insist upon a return to the time when there was a stark, and rigidly enforced, demarcation between these FBI functions. If a reexamination of the FBI’s handling of these twin functions does, indeed, become part of the response generated by the release of the Horowitz Report, there is a history to this debate that offers important historical perspective and guidance to any remediation debate.
Will There Be a “Wall” Redux?
In 1995, following the unexpected death of Mary Lawton, the long-time head of the Justice Department’s Office of Intelligence Policy & Review (the predecessor to today’s National Security Division), the Department adopted a set of intelligence sharing procedures developed by then-Deputy Attorney General Jamie Gorelick. Those procedures effectively erected an internal barrier (“The Wall”) between the criminal investigative and counterintelligence components of the FBI. The effect was to virtually ban the participation of law enforcement personnel in any matter involving FISA-authorized surveillance. The Wall’s restrictions were enforced so rigidly by the Justice Department that the National Security Agency (NSA) was notified that it needed to classify its counterterrorism reporting as either FISA-derived or not so that information derived from non-FISA collection could be shared with FBI criminal investigators. NSA found the restriction so burdensome that it ultimately classified all of its counterterrorism reporting as FISA-derived, which had the practical effect of completely foreclosing access to any NSA reporting for FBI law enforcement personnel.
The FISC effectively adopted these DoJ intelligence sharing procedures and consistently insisted upon their inclusion as part of the FISA-mandated minimization procedures incorporated into any FISC order approving a FISA surveillance. The FISC continued to enforce those restrictions even after (1) DoJ implemented decidedly more relaxed intelligence sharing procedures at the outset of the George W. Bush administration, and (2) amendments to FISA included in the PATRIOT Act passed by Congress after the 9/11 attacks reflected a congressional desire to optimize counterterrorism efforts by eliminating most, if not all, of The Wall’s restrictions on intelligence sharing. Ultimately, the FISC’s insistence on preserving The Wall’s restrictions and incorporating those limitations into the minimization procedures for any FISA surveillance led the government to seek relief from the Foreign Intelligence Surveillance Court of Review (FISCR) producing, in 2002, that court’s seminal (and very first) decision. Concluding that the intelligence sharing restrictions initially produced by Gorelick and viewed as the foundation for The Wall were required neither by the Constitution nor by the language of FISA, the FISCR’s decision effectively razed The Wall.
That holding by the FISCR tends to obscure the largely unremembered underlying FISC decision that precipitated the FISCR’s dismantling of The Wall. That FISC decision portrayed a remarkable series of concerns voiced by the FISC “related to misstatements and omissions of material facts” acknowledged by the government “in some 75 FISA applications” submitted by the FBI with the approval of the Justice Department. These revelations, occurring before the 9/11 attacks and the PATRIOT Act legislation that followed those attacks, led to a “special meeting” mandated by the FISC in November 2000 “to consider the troubling number of inaccurate FBI affidavits in so many FISA applications.” According to the FISC opinion ultimately appealed by the government to the FISCR, the FISC received an explanation “from the Department of Justice about what went wrong, but not why,” and the court thereafter decided “not to accept inaccurate affidavits from FBI agents whether or not intentionally false.” Further expressing its concerns over the accuracy of FISA applications, on April 4, 2001, the FISC notified the Justice Department that “since last year there have been a series of cases involving material misrepresentations in FISA applications. The Court is deeply disturbed. More than finding fault, our primary concern is finding a solution.”
This recounting is eerily similar to the description of events surrounding the Carter Page FISA applications recited in the Horowitz Report. To bring the matter full circle in a way, the earlier sequence of events cited by the FISC in its 2002 decision in In re All Matters Submitted to the Foreign Intelligence Surveillance Court, including the aforementioned April 4, 2001 memorandum from the FISC, led to the adoption of the now famous “Woods Procedures” as an internal administrative requirement prudentially imposed to insure that FBI FISA applications were scrupulously accurate. As discussed at considerable length in the Horowitz Report, the DoJ inspector general will now audit the FBI’s “Woods” files related to FISA surveillances of U.S. persons targeted in counterintelligence and counterterrorism investigations in an effort to ascertain whether the defects identified in the Carter Page FISA applications signify a broader problem with the FBI’s internal FISA procedures.
Today, a properly predicated FBI investigation can be initiated either as a counterintelligence or criminal matter but, in either instance, proceeds with investigators equipped with the full range of FBI authorities. If the target of a counterintelligence investigation is also counterfeiting U.S. currency, for example, FBI counterintelligence agents are now empowered to make arrests using applicable law enforcement authorities. Reflecting this approach, the Attorney General’s Guidelines for Domestic FBI Operations explicitly provide that “all of the FBI’s legal authorities are available for deployment in all cases” in order to “protect the public from crimes and threats to the national security and to further the United States’ foreign intelligence objectives.” As David Kris explains in his treatise on national security investigations, “these three strands of authority are now explicitly braided.” As a result, the FBI’s “information gathering activities” need not be “differentially labeled” as law enforcement, counterintelligence, or affirmative foreign intelligence, and its personnel need not be “segregated from each other based on the subject areas in which they operate.” The guidelines further explain that, “[i]n many cases, a single investigation will be supportable as an exercise of a number of these authorities—i.e., as an investigation of a federal crime or crimes, as an investigation of a threat to the national security, and/or as a collection of foreign intelligence.” Today, while the FBI has separate investigative missions and possesses a variety of different investigative authorities, there is only one FBI, and it is entitled to bring all of those authorities to bear in any investigation, regardless of its origin as either law enforcement or counterintelligence in nature.
Whether the FBI continues to operate with this level of coordination between its law enforcement and counterintelligence elements is just one of the many issues that will play out in reaction to the Horowitz Report. But, on this one at least, there is history to be recalled and considered.
Some Closing Thoughts
When the DoJ inspector general testified before the Senate Judiciary Committee in December 2019, a number of Republican Senators made a concerted effort to alchemize Horowitz’s significant criticisms of the FBI’s handling of the Carter Page FISA applications into a broader allegation that Crossfire Hurricane really was a politically motivated targeting of the 2016 Trump campaign. As I have discussed earlier, this is a charge that fails to survive an impartial reading of the Report, and those who continue to proselytize this canard, whether from the White House or Capitol Hill, make no contribution to remediating the problems that the inspector general actually identified in the Report.
Those problems are indeed serious, and the first order of business would seem to call for determining whether the Page applications were the isolated product of operational and administrative peculiarities unique to the manner in which the Crossfire Hurricane investigation was organized and executed, or, more troubling, indicative of broader systemic problems in the way in which the FBI obtains and executes authority to conduct FISA surveillances. With this as a legitimate initial point of focus, logic suggests that allowing Inspector General Horowitz to complete his audit of the FBI’s “Woods” files while the FISC pursues its own investigative and remedial actions is the prudent course. Good governance should resist broader changes predicated more on impulse than information and partisanship than prudence. After all, a nation must think before it acts, and those who fail to learn from history are condemned to repeat it.
The Further Continuing Appropriations Act, 2020, and Further Health Extenders Act of 2019, P.L. 116-69, was signed into law on November 21, 2019. Section 1703 of P.L. 116-69 extended these FISA sunset dates.
 The FISC’s rules of procedure (Rule 13) specifically require that the government inform the court of any misstatement or omission of material fact in connection with any FISA submission.
 The “Woods” files refer to the administrative files that internal FBI procedures (i.e., the “Woods Procedures”) mandate be prepared with respect to each FISA application documenting the corroboration of the facts contained in each application. Implemented in 2001 and bearing the name of their principal author (FBI attorney Michael Woods), the Procedures are intended to ensure the full and accurate presentation of all facts necessary for the FISC to make its probable cause determination with respect to any FISA application submitted by the FBI. In the words of the Horowitz Report, the Woods Procedures are intended to ensure that FBI FISA applications are “scrupulously accurate.”
 To date, the public continues to have seen only redacted versions of the Horowitz and Mueller Reports.
 There has been considerable historical debate over the origins of “The Wall.” Conservative commentator Andrew McCarthy, an Assistant U.S. Attorney in the Southern District of New York in 1995, who led the prosecution against Sheik Omar Abdel Rahman for his involvement in the first World Trade Center terrorist attack, insists that Gorelick was responsible for implementing The Wall’s restrictions. Andrew C. McCarthy, The Wall Truth, National Review Online, Apr. 19, 2004. Available at http://www.nationalreview.com/mccarthy/mccarthy200404190849.asp. Conversely, Gorelick has argued that The Wall reflected the accretion of restrictions inherent in FISA and judicial decisions interpreting FISA. Jamie S. Gorelick, The Truth About ‘the Wall,’ The Washington Post, Apr. 18, 2004, at B07.
 Cedric Logan, The FISA Wall and Federal Investigations, New York University Journal of Law & Liberty, Vol. 4:209 at 240 (2009).
In re Sealed Case, 310 F.3d 717 (FISCR 2002). Despite having been created as part of FISA in 1978, the FISCR had never rendered a decision until this 2002 ruling.
See In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F.Supp.2d 611, 620 (FISC 2002).
 This remarkable, but now largely forgotten, language is found at 218 F.Supp.2d at 620-621. The italicized language is the FISC’s.
See Kris & Wilson, National Security Investigations and Prosecutions §§ 6:3 & n.6, 10:9 & n.5 (3d ed. 2019) (recounting the delivery of the April 4, 2001 memo and the Justice Department’s reaction thereto).