Scathing Report Puts Secret FISA Court Into The Spotlight. Will Congress Act? Critics inside and outside officialdom are calling for, at very least, the FBI to validate its practices in requesting surveillance. Will congressional action follow?
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Scathing Report Puts Secret FISA Court Into The Spotlight. Will Congress Act?

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Scathing Report Puts Secret FISA Court Into The Spotlight. Will Congress Act?

Scathing Report Puts Secret FISA Court Into The Spotlight. Will Congress Act?

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LULU GARCIA-NAVARRO, HOST:

Even by the secretive standards of U.S. national security, the Foreign Intelligence Surveillance Court is cloaked in mystery. It oversees government surveillance on American soil in terrorism and espionage investigations. But a recent report from the Justice Department's inspector general has raised questions about how the court protects the rights of Americans and whether it needs to be reformed. NPR justice correspondent Ryan Lucas brings us this report.

RYAN LUCAS, BYLINE: When the FBI wants to wiretap an American suspected of spying for a foreign power or belonging to a terrorist group, it needs to get court approval. That comes from the Foreign Intelligence Surveillance Court, also known as the FISA Court. That approval process plays out in secret behind closed doors. There are now growing calls to change how this works, including from Chairman of the Senate Judiciary Committee Lindsey Graham.

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LINDSEY GRAHAM: I'd hate to lose the ability of the FISA Court to operate at a time, probably, when we need it the most. But after your report, I have serious concerns about whether the FISA Court can continue unless there is fundamental reform.

LUCAS: The report Graham refers to there is Justice Department Inspector General Michael Horowitz's review of the early days of the Russia investigation. Horowitz's report came out last week. And it focuses, in part, on the FBI surveillance of former Trump campaign adviser Carter Page. What Horowitz discovered was 17 significant inaccuracies and omissions in the FBI's applications to wiretap Page.

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MICHAEL HOROWITZ: We found that investigators failed to meet their basic obligations of ensuring that the FISA applications were scrupulously accurate.

LUCAS: Information that supported the FBI's case was given to the court, while information that undercut it was left out. For longtime critics of the FISA process, the problems the inspector general unearthed point to what they say are deeper issues with national security surveillance. Here's Elizabeth Goitein of the Brennan Center for Justice.

ELIZABETH GOITEIN: The way the system is built enables this kind of one-sided presentation that results in violations of the privacy of Americans.

LUCAS: The problems with the Page case have generated blowback, including from the FISA Court itself. The court's chief judge, Rosemary Collyer, issued a rare public order this week that sharply rebuked the FBI. She said the bureau has an obligation to be fully forthcoming with the court, and in the case of Page, it most definitely was not. She has ordered the government to tell the court by January 10 what it plans to do to make sure inaccuracies and omissions don't happen again.

There was a line tucked inside her order that pointed to a broader issue, as well. She said the frequency of the FBI's misrepresentations raises questions about the accuracy of its other surveillance requests. It's a point that lawmakers, including Republican Senator Ben Sasse, have also made.

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BEN SASSE: If the American people hear this and they say this can happen against a campaign for the presidency of the United States, what happens in an ordinary FISA case?

LUCAS: For civil liberties advocates, such questions about FISA are not new. They have long expressed concerns about the government's use of intrusive surveillance on, say, Muslim Americans. But the Page case has registered with congressional hawks in a way those concerns never did.

Sasse and other lawmakers who have defended national security surveillance in the past now say Congress may need to make changes to FISA. And lawmakers will soon have a chance to do so. Three parts of FISA are set to expire in March. The Brennan Center's Goitein says that gives members of Congress a chance to address the problems raised by the inspector general's report.

GOITEIN: So we'll see if they've had a change of heart, whether they're actually going to build in greater civil liberties protections or whether all of this talk about FISA reform was just political posturing.

LUCAS: For all the talk of reform, those who have used FISA to track foreign spies and terrorists say it is, in many ways, irreplaceable.

STEPHANIE DOUGLAS: FISA is an incredibly important tool...

LUCAS: That's Stephanie Douglas. She used to be in charge of the FBI's national security branch.

DOUGLAS: ...Not just in counterintelligence investigations but also a very important tool in counterterrorism investigations and even some cyber investigations.

LUCAS: Douglas, who now works for Guidepost Solutions, says the process for getting FISA orders may need to be tightened. But this kind of surveillance power shouldn't be tossed out entirely. That's the line from FBI Director Christopher Wray, as well. He says he's ordered corrective steps to fix the FBI's FISA process. The goal, he says, is to make sure that the information presented to the court is verified, reviewed and accurate.

Ryan Lucas, NPR News, Washington.

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