The Obama Justice Department official appointed by the Foreign Intelligence Surveillance Court to scrutinize the FBI’s FISA reforms determined the bureau’s reforms would be insufficient without a change in the FBI’s culture.
David Kris, a controversial pick for the job after his full-throated defenses of the FBI’s decision-making throughout the Trump-Russia investigation, said the changes FBI Director Christopher Wray proposed in the wake of DOJ Inspector General Michael Horowitz’s damning report on FISA abuse were insufficient and told the court its review “should not obscure the larger issues presented.”
“Standards and procedures, checklists and questionnaires, automated workflows, training modules, and after-the-fact audits are all important, but they cannot be allowed to substitute for a strong FBI culture of individual ownership and responsibility for the accuracy and completeness of FISA applications,” Kris said in a Wednesday filing. “Without that, even the best procedures will not suffice; indeed, expanded procedures dictating multiple layers of review and approval could backfire, creating a kind of moral hazard in which each layer believes, or assumes, that errors have or will be caught by the others. Organizational culture is paramount to real reform, and the inspector general’s report suggests that the FBI’s culture of accuracy has suffered.”
Horowitz’s report, released on Dec. 9, lambasted the DOJ and the FBI for 17 “significant errors and omissions” related to its targeting of Carter Page, stretching from October 2016 to summer 2017, and critiqued the broader counterintelligence investigation into the Trump campaign, dubbed Crossfire Hurricane.
Kris addressed his 15-page letter to presiding Judge James Boasberg, who appointed Kris to serve as the court’s amicus curiae earlier in January, a position that is supposed to provide impartial advice to the court. The former assistant attorney general with the DOJ spent most of President Trump’s term defending the bureau’s actions, including its use of British ex-spy Christopher Steele’s salacious and unverified dossier to obtain surveillance warrants against Page. Kris had also harshly criticized the FISA memo put together by Republican California Rep. Devin Nunes in early 2018, which alleged “abuses related to the FISA process” by the FBI.
Kris responded Monday to Wray, who was in turn responding to then-presiding FISA court Judge Rosemary Collyer’s public order, released on Dec. 17, in which she demanded the bureau explain “what it has done and plans to do” about its problematic FISA process. The FISA court also ordered a review of all FISA filings handled by Kevin Clinesmith, the FBI lawyer who altered a key document about Page and was referred to the DOJ for possible criminal investigation.
Wray ordered more than 40 “corrective steps” to address the Horowitz report, among them 12 related to the FISA process. To emphasize the “importance” of compliance with these changes being implemented, Wray said he distributed a video to the workforce and followed up with a bureauwide email on Monday. He said, “The FBI leadership believes that the repeated messaging to its workforce of the absolute need for accuracy and completeness in all FISA applications” and the implementation of “corrective actions” will “result in a substantially renewed institutional focus on ensuring accuracy, transparency, and completeness in all FISA applications.”
But Kris said, “A key method of improving organizational culture is through improved tone at the top” and called Wray’s current efforts a “reasonable beginning, but they are not sufficient and should be expanded and supplemented.”
“Director Wray and other FBI leaders, as well as relevant leaders at the Department of Justice, should include discussions of compliance not only in one or two messages but in virtually every significant communication with the workforce for the foreseeable future,” Kris wrote. “Every time (or almost every time) Director Wray visits a field office in 2020, for example, his remarks should include appropriate references to the paramount and urgent need for accuracy and rigor in FISA applications. He should also require his subordinates to deliver similar remarks.”
Kris said, “The message, and seriousness of purpose, should cascade” from the top of the FBI all the way down, adding that “repeated and relentless communication is often required to convey a corrective message to an organization as large, dispersed, complex, and proud as the FBI.”
“This court has rightly questioned whether it can continue to trust FBI affidavits and demanded assurances of accuracy and completeness. The government has proposed 12 corrective actions which point in the right direction but do not go far enough,” Kris concluded. “Above all, however, the FBI must restore — and the court should insist that it restore — a strong organizational culture of accuracy and completeness.”
The Page FISA applications were approved by a number of high-ranking officials, including FBI Director James Comey, FBI Deputy Director Andrew McCabe, Deputy Attorney General Rod Rosenstein, and Deputy Attorney General Sally Yates, all of whom have since left the government. In testimony about his report, Horowitz later faulted the FBI’s “entire chain of command” in seeking the warrants. Dana Boente is the only signatory still remaining in active government service, working as the Trump administration’s top lawyer at the FBI beginning in January 2018.
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