Republican anger over the selection of David Kris to oversee the FBI’s plan to fix its shoddy processes for obtaining surveillance warrants from the Foreign Intelligence Surveillance Court could spill over into a battle over the future of the secret court.
Congress soon will open a debate on reauthorizing three Foreign Intelligence Security Application measures set to expire in March. If the provisions lapse, it would threaten the FBI’s ability to investigate terrorism and espionage cases.
Republicans quietly questioned whether the secretive FISA Court should continue to exist after a damning report by the Justice Department inspector general found serious errors and omissions by FBI agents when they filed to obtain surveillance warrants for Carter Page, a former Trump campaign adviser.
“I would hate to lose the ability of the FISA Court to operate at a time, probably when we need it the most. But I have serious concerns about whether the FISA Court can continue unless there is fundamental reform,” said Senate Judiciary Chairman Lindsey Graham, South Carolina Republican.
Since the appointment of Mr. Kris, who served in the Justice Department under Presidents George W. Bush and Barack Obama, Republicans have doubled down on their demand to overhaul the FISC.
“A few of us are not only appealing this to the judge who has now taken over the FISA process, but we are looking at this when it comes to renewing the FISA process within Congress,” Rep. Mark Meadows, North Carolina Republican, told reporters last week.
President Trump and his allies spent the past week slamming the appointment of Mr. Kris, who will serve as an amicus curiae, or adviser to the court. They say his public statements and writings prove he is too biased in favor of the FBI to impose meaningful reform.
“If there was any hope for the system fixing this FISA mess, it extinguished with David Kris‘ appointment,” Mr. Page told The Washington Times. “Nobody trying to fix the rampant abuse and coverup plaguing the entire FISA process would have picked Kris, a former FISA lawyer and longtime FISA apologist. Instead, you appoint Kris for only one reason: You just want it to look like you do.
“America’s only hope now for accountability for change, for returning to a society where we don’t fear being spied on, is for someone outside the system to stand up and force the change that’s clearly unwanted.”
Even Mr. Kris‘ criticism of the FBI’s plan to fix its FISA procedures as “insufficient” did little to quell Republican outrage. In a harsh rebuke, he said the FBI doesn’t go far enough to prevent further FISA abuses.
The next day Mr. Meadows and Rep. Jim Jordan, Ohio Republican, sent a blistering letter to the FISC judge demanding to know why Mr. Kris was selected.
“If the FISC’s goal is to hold the FBI accountable for its serious misconduct, Mr. Kris does not appear to be an objective — or likely effective — amicus curiae for several reasons,” they wrote. “At a minimum, the selection of Mr. Kris creates a perception that he is too personally invested on the side of the FBI to ensure it effectuates meaningful reform.”
Kenneth L. Wainstein, a Republican former U.S. attorney for the District of Columbia, worked with Mr. Kris in the George W. Bush Justice Department. He said Republican anger is misplaced.
“I’ve known David for 19 years. He did more than anyone else to expand and refine our investigative tools post 9/11 to meet the terrorism threat. He is an exceptionally good choice for this and calls balls and strikes as he sees them,” Mr. Wainstein told The Washington Times.
“He just filed a brief that shows that he is looking at these issues on the merits and there is no clearer evidence of his impartiality than the brief itself,” he continued.
Mr. Kris has appeared on left-leaning MSNBC programs, including “The Rachel Maddow Show,” and contributed to the left-leaning Lawfare blog.
In his writings, Mr. Kris asserted Republicans “falsely accused” the FBI of misleading the FISC on the Page wiretaps. But the Justice Department’s inspector general concluded the FBI did mislead the court by omitting evidence that could have exonerated Mr. Page.
Mr. Kris also wrote “there was probable cause to conclude” Mr. Page was a Russian agent. Mr. Page was never charged with a crime.
Mr. Wainstein said Mr. Kris‘ should not be penalized for expressing his opinions.
“No one has more experience with FISA, its use in national security operations and its oversight, than David Kris. It would be a shame to lose the benefit of that experience because he like any other expert has a record of public statements on this issue,” he said.
Rep. Devin Nunes of California, the top Republican on the Permanent Select Committee on Intelligence, said the choice of Mr. Kris was “inexcusable,” describing him as “nasty.”
They may just get that chance.
If the three FISA measures expire March 15, it could seriously hamstring the court’s authority.
The provisions are a business records measure that authorizes the FBI to search books records and paper documents; a roving wiretap provision allowing the FBI to wiretap phone numbers not listed in a warrant; and a lone wolf provision that allows the court to issue a warrant without tying a lone wolf to a terrorist organization.
“It would irresponsible for Congress to undermine a critically important investigative tool like FISA simply to score political points,” Mr. Wainstein said. “FISA is an essential tool in our national security operations and critical to detecting and neutralizing national security threats.”
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