Congress Intelligence Surveillance & Privacy

Further Thoughts on the Crossfire Hurricane Report

David Kris
Monday, December 23, 2019, 4:19 PM

Five observations about the Department of Justice Inspector General's report on the Crossfire Hurricane investigation.

The Department of Justice Building (Source/Flickr/Scott)

Published by The Lawfare Institute
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With a few more days to read the inspector general’s Crossfire Hurricane report and watch the C-SPAN video of his congressional testimony (and listen to the no-bull version on Lawfare), I have five additional observations beyond those set out in a series of tweets on the day the report was released, discussions on the Lawfare podcast the following day, and conversations with NPR, the New York Times, and the Wall Street Journal.

The first question, for me, remains the one about possible political bias in the FBI. In particular, should the inspector general’s report be understood as repudiating, or merely pretermitting, claims of political bias in the Crossfire Hurricane investigations and the Foreign Intelligence Surveillance Act (FISA) applications targeting Carter Page? What did the inspector general find, and what didn’t he find, with respect to political bias?

Second, even if not political, how serious were the failures in these FISA applications? Were they the sort of error one would expect to see in any thorough after-action review of a high-pressure, complex case, or were they something more severe? Is there any precedent for the inspector general’s review and for the errors he found?

Third, is there reason to believe that the errors were unique, or should we expect that the inspector general’s follow-up audit will find more of the same in other cases? Were there any special features of the Crossfire Hurricane investigation that might have caused the errors here, but not elsewhere?

Fourth, what is to be made of statements by Attorney General William Barr and U.S. Attorney John Durham concerning the Crossfire Hurricane investigation, and a prior memo released in early 2018 by Rep. Devin Nunes concerning the Page FISA applications? Why did Barr and Durham criticize and publicize their disagreements with the Inspector General, and was the Nunes memo more honest and accurate than I previously gave it credit for being?

Fifth, what are the prospects for various types of FISA reforms in the wake of Crossfire Hurricane?

1. Political Bias

The political question comes first, at least for me, in part because it is so important. If the investigations or the FISA applications were infected by political bias—if they really were conducted as part of an effort to undermine a campaign for the presidency—then we are in very deep trouble. To be clear, I am talking here about political preferences exerting an effect on investigative or other operational conduct. That requires more than a political viewpoint, which everyone has but which law enforcement and intelligence officials should be very careful about expressing, in part to preserve the appearance of apolitical action, which is itself very important. I believe that the inspector general assesses these political questions in the same way, distinguishing between government officials who (a) have a political view or preference; (b) express that view or preference on government hardware or networks or while working on an investigation with political aspects; and (c) allow a political view or preference to change their investigative or related conduct. See, e.g., Report at 13 n.22; C-SPAN at 2:10:50.

Operationalized politicization of intelligence and law enforcement would be in the same general category as some of the truly horrendous abuses of the first 30 years of the modern intelligence community’s existence, as described in the Church Report and in this article from Judge Laurence Silberman. Other kinds of failures, including intentional misconduct, can be very bad, and a sign of serious problems. But for me, at least, they are less frightening, less threatening to the foundations of our system of government, than the FBI trying to decide who gets to occupy the White House.

So, what does the inspector general’s report say about political bias?

At the outset, before assessing the inspector general’s findings, it is important to note that he and his team did a thorough investigation, reviewing more than a million documents and interviewing more than 100 witnesses (Report at i, 11-14). They enjoyed “broad access to relevant materials,” including “emails, text messages, and instant messages,” as well as classified messages and information (id.). Information from other government agencies was also reviewed if it came to the FBI (information at other agencies that did not come to the FBI was not reviewed). Even with respect to classified information, “the Department and the FBI gave us broad and timely access to all such material, and provided us with their full cooperation” (id. at 12 n.20). The key participants, including FBI agents and supervisors, and Christopher Steele, were interviewed. Two witnesses—a former State Department official and Glenn Simpson of Fusion GPS—declined to be interviewed, but there is no suggestion in the report, or in the inspector general’s testimony, that this altered the outcome of the investigation. In his congressional testimony, Inspector General Michael Horowitz described his report as “the product of a comprehensive and exhaustive review” (C-SPAN at 57:07; see also, e.g., C-SPAN at 2:55:10, 2:56:20).

Second, in the course of this thorough investigation, the inspector general was acutely on the lookout for evidence of political bias. “As part of our review, we also sought to determine whether there was evidence that political bias or other improper considerations affected decision making in Crossfire Hurricane, including the decision to open the investigation” (Report at iii). Previously, of course, the inspector general was critical of political text messages exchanged between FBI agent Peter Strzok and FBI lawyer Lisa Page, and the Crossfire Hurricane report goes out of its way to note this (id. at iii; see, e.g., id. at 9, 67). The report observes (id. at 13 n.22) that “we identified a small number of text messages and instant messages … in which FBI employees involved in the Crossfire Hurricane investigation discussed political issues and candidates. Unlike the messages in the [prior report concerning Strzok and Page], the messages here did not raise significant questions of potential bias or improper motivation because of the potential connection to investigative activity.”

Third, the inspector general did not find any evidence of such political bias. Here are some examples of what the report says about possible bias:

  • We concluded that [FBI Assistant Director Bill] Priestap’s exercise of discretion in opening the investigation was in compliance with Department and FBI policies, and we did not find documentary or testimonial evidence that political bias or improper motivation influenced his decision (iii).
  • We did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions to open the four individual investigations (iv).
  • We did not find documentary or testimonial evidence that political bias or improper motivation influenced the FBI’s decision to seek FISA authority on Carter Page (vi).
  • [W]e also found no documentary or testimonial evidence that political bias or improper motivations influenced the FBI’s decision to use CHSs [Confidential Human Sources] or UCEs [Undercover employees] to interact with Trump campaign officials in the Crossfire Hurricane investigation (xvii).
  • During our review, we identified a small number of text messages and instant messages, beyond those discussed in the OIG’s [Office of the Inspector General’s] Review of Various Actions in Advance of the 2016 Election, in which FBI employees involved in the Crossfire Hurricane investigation discussed political issues and candidates. Unlike the messages in the OIG’s Review of Various Actions in Advance of the 2016 Election, the messages here did not raise significant questions of potential bias or improper motivation because of the potential connection to investigative activity (13 n.22).
  • As part of our review, we sought to determine whether there was evidence that political bias or other improper considerations affected decision making in Crossfire Hurricane, including the decision to open the investigation.... We did not find documentary or testimonial evidence that political bias or improper motivation influenced Priestap’s decision to open Crossfire Hurricane (348).
  • Although the CHS operations implicated constitutionally protected activity, we found no evidence that they were undertaken solely for the purpose of monitoring constitutionally protected activity, which is prohibited by the DIOG [the Domestic Investigations and Operations Guide, the FBI’s internal manual]. We also found no testimonial or documentary evidence that these operations resulted from political bias or other improper considerations. We therefore concluded that these early investigative activities undertaken by the Crossfire Hurricane team were matters of judgment that were permitted by the AG [Attorney General] Guidelines and the DIOG (356).
  • We did not find documentary or testimonial evidence that political bias or improper motivation influenced the FBI’s decision to seek FISA authority on Carter Page (359).
  • We found that FBI policy permitted the receipt and use of Steele’s election reporting in the Crossfire Hurricane investigation, and we did not find documentary or testimonial evidence that this decision was the result of political bias or other improper considerations (381).
  • We also did not find documentary or testimonial evidence that political bias or improper motivation influenced the FBI’s decision to use CHSs to interact with Page, Papadopoulos, and the high-level Trump campaign official in the Crossfire Hurricane investigation (400).
  • We concluded that AD [Assistant Director] Priestap’s exercise of discretion in opening the investigation was in compliance with Department and FBI policies, and we did not find documentary or testimonial evidence that political bias or improper motivation influenced his decision (410).
  • We did not find any documentary or testimonial evidence that political bias or improper motivation influenced the FBI’s decision to conduct these operations. Additionally, we found no evidence that the FBI attempted to place any CHSs within the Trump campaign, recruit members of the Trump campaign as CHSs, or task CHSs to report on the Trump campaign (411).

Perhaps the two most extended discussions of potential political bias in the inspector general’s report emerge from interviews of the FBI and Department of Justice officials who were closest to the action. According to the report, “the evidence also showed that FBI officials responsible for and involved in the case opening decisions were unanimous in their belief that, together with the July 2016 release by WikiLeaks of hacked DNC [Democratic National Committee] emails, the Papadopoulos statement described in the FFG [Friendly Foreign Government] information reflected the Russian government’s potential next step to interfere with the 2016 U.S. elections.” The inspector general’s report goes on to note that these “FBI officials were similarly unanimous in their belief that the FFG information represented a threat to national security that warranted further investigation by the FBI. Witnesses told us that they did not recall observing during these discussions any instances or indications of improper motivations or political bias on the part of the participants, including Strzok” (Report at 349-350).

To test this unanimous reporting from the FBI, the inspector general decided to review “the text messages and emails of each of the FBI officials, in addition to Strzok, who participated in the decision to open Crossfire Hurricane and the four individual cases.” The results of that review “did not identify any statements in those communications that indicated or suggested the decision could have been affected by political bias or other improper considerations” (Report at 350).

As a further check, the inspector general’s team “also reviewed other contemporaneous documents, such as meeting notes, and asked witnesses who were not involved in the decision to open Crossfire Hurricane but who were familiar with the predication for the case for any evidence of political bias or improper motivation in the FBI’s decision making.” The results of that further check? “Again, we found no such evidence, including from Department officials briefed about Crossfire Hurricane subsequent to it being opened. These officials also did not express any concerns about the FBI’s decision to open the investigation. By way of example, David Laufman, then Chief of the National Security Division’s (NSD) Counterintelligence and Export Control Section (CES), told us that it would have been ‘a dereliction of duty and responsibility of the highest order not to commit the appropriate resources as urgently as possible to run these facts to the ground, and find out what was going on’” (Report at 350).

I include all these excerpts from the report because they inform the proper conclusions to be drawn with respect to political bias. The report is careful to say (repeatedly) only that it found no evidence of political bias, which is different from making an affirmative finding that there was none. This is the familiar conceptual distinction between the evidence of absence and the absence of evidence, and the familiar challenge of proving a negative. Some commentators have made much of this. But for me, given the scope and the focus of the review that was done, the absence of evidence is significant. There may indeed still be a stone out there hiding a political worm, but a lot of stones were turned over for this report.

At the same time, other passages in the report, and especially Horowitz’s congressional testimony, add a caveat to that assessment. The report says, for example, that while “[w]e did not find documentary or testimonial evidence of intentional misconduct on the part of the case agents who assisted [the Justice Department] in preparing the [FISA] applications, or the agents and supervisors who performed the Woods Procedures [to confirm the accuracy of the FISA applications], we also did not receive satisfactory explanations for the errors or problems we identified” (Report at xiii). The report makes similar statements at several other points (see, e.g., Report at 362, 377-378, 382 n.502, 414).

These statements in the inspector general’s report, and similar ones made during the congressional hearing, introduce a kind of double nuance to the findings on political bias. At one level, the absence of “satisfactory explanations” can be seen as limiting the significance of the absence of evidence of political bias. If the FBI couldn’t explain the errors, then how can anyone rule out the possibility of political motivations for those errors?

But as a nuance to this nuance, the references to the absence of explanation are focused more on whether the errors were intentional (as opposed to negligent), not on whether they were political rather than some other species of intentional error. In an exchange with Sen. Joni Ernst concerning the possibility of criminal referrals, Horowitz put it this way: “We didn’t see evidence of [criminal] intent, but we also didn’t hear good explanations, which left us with an open question on what the motive was and what the state of mind was” (C-SPAN at 4:35:07). There are other exchanges pointing the other way, of course, and emphasizing the absence of evidence of political motivation, bordering on treating it as an affirmative finding of no political bias, as tends to happen in congressional testimony on issues of partisan concern. See, e.g., C-SPAN at 1:38:15, 2:13:25, 2:51:20.

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.

2. Serious Errors

Even if the errors in the investigation were not the result of political bias, how serious were they? And are they unprecedented?

a. History. Beginning with precedent, the closest case to Crossfire Hurricane that I can think of arose almost 20 years ago, when I was first involved in national security and FISA. At that time, the government and the FISA Court were involved in a major disagreement about the “wall” that required separation between intelligence and law enforcement efforts to protect against foreign threats to national security. The FISA Court (in a case I argued) flatly rejected the government’s efforts, after the 9/11 attacks and the USA Patriot Act, to tear down the wall and permit full-blown coordination. 218 F. Supp. 2d 611 (FISC 2002). In an appeal of that decision (argued by Ted Olson, the solicitor general), the FISA Court of Review ruled in the government’s favor, tearing down the wall. 310 F.3d 717 (FISCR 2002).

Apart from the obvious lesson that the quality of your lawyer can affect the outcome of your case, the point of recounting this history is to establish that, at the time, excessive interactions between intelligence and criminal investigations were extremely sensitive and important. Documentation of the interactions was also critical: The FISA Court had a specific rule of procedure requiring that “[a]ll FISA applications shall include informative descriptions of any ongoing criminal investigations of FISA targets, as well as the substance of any consultations between the FBI and criminal prosecutors at the Department of Justice or a United States Attorney’s Office.” Descriptions of such interactions had to be scrupulously accurate.

In its opinion maintaining the FISA wall, the court discussed its concern with significant inaccuracies in FISA applications pertaining to criminal matters (218 F. Supp. 2d. at 620):

Beginning in March 2000, the government notified the Court that there had been disseminations of FISA information to criminal squads in the FBI’s New York field office, and to the U.S. Attorney’s Office for the Southern District of New York, without the required authorization of the Court as the “wall” in four or five FISA cases. Subsequently, the government filed a notice with the Court about its unauthorized disseminations.

As if that wasn’t bad enough, a few months later, in “September 2000, the government came forward to confess error in some 75 FISA applications related to major terrorist attacks directed against the United States. The errors related to misstatements and omissions of material facts, including” all of the following (218 F. Supp. 2d. at 620):

a. an erroneous statement in the FBI Director’s FISA certification that the target of the FISA was not under criminal investigation;

b. erroneous statements in the FISA affidavits of FBI agents concerning the separation of the overlapping intelligence and criminal investigations, and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys;

c. omissions of material facts from FBI FISA affidavits relating to a prior relationship between the FBI and a FISA target, and the interview of a FISA target by an assistant U.S. attorney.

This led the FISA Court, in November 2000, to convene “a special meeting to consider the troubling number of inaccurate FBI affidavits in so many FISA applications,” as part of which it received “a more detailed explanation from the Department of Justice about what went wrong, but not why” (Id. at 620-621). As of May 2002, despite more than a year of internal review, “how these misrepresentations occurred remains unexplained to the Court” (Id. at 621).

And then things got even worse. “In March of 2001, the government reported similar misstatements in another series of FISA applications in which there was supposedly a ‘wall’ between separate intelligence and criminal squads in FBI field offices to screen FISA intercepts, when in fact all of the FBI agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations” (218 F. Supp. 2d at 621).

In response to this onslaught of inaccuracy, an “FBI agent was barred from appearing before the Court as a FISA affiant[,]” and his case was referred to the Department’s Office of Professional Responsibility for review (Id.). Barring an agent from appearing in the FISA Court, which would likely also limit his ability to testify in a criminal case (see Giglio v. United States, 405 U.S. 150 (1972)), was a significant act that sent a strong signal.

On April 4, 2001, the FISA Court sent a memo to the attorney general noting 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.” The memo was not a bolt out of the blue; it was the result of ongoing discussions between the court and the Justice Department. But it reinforced, formalized, and memorialized the strong message that the court had been sending about the accuracy of FISA applications. See, e.g., Kris & Wilson, National Security Investigations and Prosecutions §§ 6:3 & n.6, 10:9 & n.5 (3d ed. 2019) [hereinafter NSIP].

The next day, April 5, the FBI issued the now-famous Woods Procedures (named after the remarkably talented FBI lawyer who was their primary author), which are discussed extensively in the Crossfire Hurricane report. As the FISA Court explained, “To come to grips with this problem” of inaccuracies in FISA applications, “in April of 2001, the FBI promulgated detailed procedures governing the submission of requests to conduct FISA surveillances and searches, and to review draft affidavits in FISA applications, to ensure their accuracy. These procedures are currently in use and require careful review of draft affidavits by the FBI agents in the field offices who are conducting the FISA case investigations, as well as the supervising agents at FBI headquarters who appear before the Court and swear to the affidavits” (218 F. Supp. 2d at 621).

The following month, May 2001, the attorney general issued a comprehensive memo to the FBI director on the FISA process. This memo required all of the following: (a) improved coordination among the various parties responsible for preparing FISA applications, including direct communication between Justice Department attorneys and FBI field agents; (b) submission of FISA applications at regularly scheduled sessions of the FISA Court except in cases of emergency; (c) streamlining and standardization of FISA applications; (d) coordination of FISA priorities to triage the work of preparing and filing applications; (e) training for FBI agents, including on the preparation of declarations (the affidavit of facts in a FISA application); and (f) an assessment of whether and how to establish an email system, capable of operating at the TS/SCI level, between the Justice Department, FBI headquarters and FBI field offices. By the end of August 2001, several training sessions had been completed in the New York field office, FBI headquarters elements had requested additional training, and plans had been developed to conduct on-site training at 10 FBI field offices that, taken together, accounted for more than 80 percent of the FBI’s FISA applications. See NSIP and original documents released to the authors under FOIA that are cited therein.

A year later, in April 2002, the Justice Department adopted an expanded review policy, under which attorneys would visit FBI field offices not only to assess compliance with FISA minimization procedures, but also to consider a selected sample of FISA applications to ensure that their factual assertions were supported by underlying documentation in FBI case files (Id.).

These measures, and others that followed, seemed to improve the problem of inaccuracies in FISA applications. The government itself had discovered the inaccuracies of which the court complained, and in the years following the adoption of new procedures, fewer errors were found.

Another precedent may be found in a series of errors of various types discovered and reported to the court beginning in and around 2009-2010, concerning agencies other than the FBI, as discussed in more detail below. These are too many and varied to be addressed thoroughly here, and in any event they may be more familiar to observers in the post-Snowden era. A query for words like “compliance,” “troubled” and “concerned” in IC on the Record will return several relevant FISA Court and other documents from this period.

b. Crossfire Hurricane. The errors in the FISA applications on Carter Page were significant and serious. They were not, in my experience, the kind of errors you would expect to find in every case. I will not belabor the point, as it seems unnecessary in light of the weight of informed opinion on the issue (I have seen no serious arguments that the errors found by the inspector general are trivial or not worthy of concern), but I feel confident saying the following. It’s not acceptable to rely on a Confidential Human Source and then not check with his FBI handler in describing his bona fides to the FISA Court (Report at viii-ix, x, 132, 160, 162, 261-262, 361, 367). It’s not acceptable to omit some potentially exculpatory recorded statements made by the FISA target to a source (id. at ix, 79-80, 127, 169 n.311). It’s not acceptable to leave unresolved credibility and perhaps factual disputes between a key source and his primary subsource (id. at ix, xii, 164, 186-193). It’s not acceptable, after closing the key source, to continue to get information from him through an Office of the Deputy Attorney General (ODAG) staffer, thereby effectively treating him as a subsource of the ODAG staffer (id. at 203, 290). And it’s certainly not acceptable for an FBI attorney to alter an email from another intelligence community agency as to whether the other agency had contact with the FISA target or treated him as a source (id. at 255). Like the inspector general (id. at 413), I “do not speculate whether the correction of any particular misstatement or omission, or some combination thereof, would have resulted in a different outcome” in the initiation and/or any of the renewals of the FISA applications on Page. The errors remain important either way.

3. Unique or a Pattern

An important question for the future is whether the errors in Crossfire Hurricane, like the ones from 20 years ago, are unique or part of a larger pattern. The inspector general has announced a broader audit of compliance with internal accuracy procedures in espionage and terrorism FISA applications targeting U.S. persons (Report at xiv, 380). This seems appropriate and may provide some important insight. In advance of that, however, I will offer some informed speculation about the two main possibilities. I emphasize that this is only speculation; there is no substitute for seeing the facts.

First, if the inspector general finds that Crossfire Hurricane is an outlier, and that other audited cases had materially fewer or less serious failures, I can think of a few possible explanations that will be offered. As discussed above, strong claims have been made, and there is at least the theoretical possibility, that the investigation was motivated by political bias and/or was part of a witch hunt or deep-state coup attempt to undermine President Trump. Such motivations presumably being absent from other investigations involving FISA, it could explain why Crossfire Hurricane experienced special failures. As discussed above, however, the inspector general’s findings—including his search for, and failure to find, evidence of political bias affecting the investigation—makes this unlikely. Regardless, if the inspector general’s broader audit of FISA comes back relatively clean, it will surely be used to support claims that Crossfire Hurricane must have been infected by political bias.

Are there any other possible explanations? As I read the inspector general’s report, and particularly Chapter 11, I was struck by the structuring and staffing of the Crossfire Hurricane investigation, including the fact that it was run out of FBI headquarters rather than a field office until January 2017, and subject to other changing structures and staffing through May 2017, when it was transferred to the Office of Special Counsel Robert Mueller. See Report at 63, 65-66, 81-83 & Figures 3.1-3.3.

The case was initially run from headquarters to reduce the chance of a leak that would harm then-candidate Trump, even though the FBI knew that doing so would limit the investigation’s effectiveness. The inspector general’s report explains (id. at 64, 354, emphasis added):

Agents and analysts on the Crossfire Hurricane team told the OIG that the decision to conduct the investigation out of FBI Headquarters instead of a field office presented multiple challenges, such as difficulties in obtaining needed investigative resources, including surveillance teams, electronic evidence storage, technically trained agents, and other investigative assets standard in field offices to support investigations.

* * * *

We found that the decision to run the investigation out of FBI Headquarters created challenges for the team, which we were told were known risks consciously taken by CD officials, including Priestap, in order to minimize the potential of an unauthorized public disclosure of the investigation and allow for better coordination with Headquarters and interagency partners. These challenges included difficulties in obtaining needed investigative resources, such as surveillance teams, electronic evidence storage, technically trained agents, and other investigative assets standard in field offices to support investigations. Additionally, the FBI had to detail agents to FBI Headquarters from field offices for 90-day temporary duty assignments (TDYs). Then, when these 90-day TDY assignments expired, new agents were detailed to FBI Headquarters, resulting in three iterations of Crossfire Hurricane teams and supervisors from July 31, 2016, to the transfer of the case to the Special Counsel’s Office in May 2017.

See also id. at 66 (“The Supervisory Intel Analyst told us that the shifting makeup of the teams and the changing leadership created a divide between the analysts and the agents, which resulted in less interaction between the two groups”), 152 n.289 (“According to the Headquarters Program Manager, because the investigation was closely held and being run out of Headquarters, it was initially not assigned to a specific unit in the Counterintelligence Division and therefore did not have an assigned program manager”).

Running a complex investigation directly from headquarters is not unprecedented, but it is not common—and for good reason. Changing agents every 90 days is obviously challenging, especially in an evolving and complex case like Crossfire Hurricane. That challenge may have been exacerbated by the intense operational tempo of Crossfire Hurricane, which is not typically the case in counterintelligence (as opposed to counterterrorism) matters.

As the inspector general explained, the “ad hoc staffing presented challenges compared to the established chain of command structure that exists in FBI field offices” with permanent investigative staff (Report at 354). “The turnover of agents and supervisors resulted in a loss of institutional knowledge and a lack of communication among agents, analysts, and supervisors,” and “witnesses we interviewed told us that investigating Crossfire Hurricane from FBI Headquarters created significant challenges” (id.). These are significant statements, but the inspector general’s report does not appear to pursue them further, which I found a little surprising. Where the inspector general is so openly lamenting the absence of an adequate explanation for the errors, and where a loose thread pertaining to the structure and staffing is so clearly (and correctly) identified, why not pull on it a little harder?

I do not mean to criticize the FBI’s decision to run the investigation from headquarters; it was one of many hard calls that had to be made under pressure and in real time. It probably did help avoid a leak, which would have been improper and unfair to then-candidate Trump (concerns raised about the revelations pertaining to Hillary Clinton, of course, provide a gauge of the potential significance of such disclosures, see, e.g., C-SPAN 2:32:20). But I do believe, based on my experience, that it contributed, perhaps significantly, to a lack of structure, coordination, and other discontinuities and management challenges in the way the Crossfire Hurricane investigation was run. Overall, during the 10-month period from the opening of the investigation (July 31, 2016) until the transfer to Mueller’s office, “three different teams of agents and analysts were assigned to the case: the first team worked out of FBI Headquarters from the opening of the case through December 2016; the second team worked out of three FBI field offices and FBI Headquarters from approximately January 2017 through April 2017; and the third team worked, like the second team, out of the three FBI field offices and FBI Headquarters from April 2017 to May 17, 2017” (Report at 63).

Put differently, if it does turn out that Crossfire Hurricane was uniquely or especially error-prone, as compared to other cases, I believe the headquarters and other structural and staffing aspects of the case will come to be seen as a significant cause of the errors. I therefore agree with the inspector general that the FBI should “develop specific protocols and guidelines for staffing and running any future sensitive investigations from FBI Headquarters” (Report at 354). FBI Director Christopher Wray seems to agree as well. His response to the report (id. at 425) explains that “[t]he FBI is a field-based law enforcement organization, and the vast majority of our investigations should continue to be worked by our field offices. Moving forward, in the very rare instance when FBI Headquarters runs a sensitive investigation, we are requiring prior approval by the FBI Deputy Director and consultation with the Assistant Director in Charge or Special Agent in Charge of the affected field offices.” This seems reasonable.

There are other conceivable explanations as well, including the possibility that some or all of the agents or other FBI personnel on Crossfire Hurricane were thrown off balance by what they were seeing in the Trump campaign and the early days of the Trump administration, and that this exacerbated tendencies toward confirmation bias or other institutional factors in favor of commencing or maintaining the investigation and/or FISA collection. I discussed this on the Lawfare podcast the day after the inspector general’s report came out. As I explained there (0:30:13), I had “the beginnings of several possible explanations, none of which I want to offer as the single, or in combination as the whole, story of why” the errors in Crossfire Hurricane occurred. Subject to those caveats, and after reviewing some of the points above, I said the following (0:33:30):

A last factor, which is maybe the most controversial … is just … how disorienting it may have been … to encounter in full flower, right away, in classified settings or in briefings or whatever, the characteristics of the Trump campaign and Trump officials—people like Mike Flynn, and Paul Manafort and George Papadopoulos [all of whom were later convicted of federal crimes]…. Those of us who are looking at things now … have had a long time now to get used to the rising temperature in the water, but these people [in the FBI] came face to face with the boiling water from Day 1, and I think it may have thrown them for a loop. It’s not an excuse, it’s not a justification, and I’m not even sure it’s really part of this, but … those are some of the things that occur to me.

What about the other side of the coin—if the inspector general’s audit finds a widespread pattern of significant errors in FISA applications, not limited to Crossfire Hurricane? That may further undercut any claims of political bias against President Trump—by showing that the FBI commits FISA failures on an equal-opportunity basis—but it will obviously raise other significant questions. What will it mean if, some 20 years after the FISA Court hammered the issue of important factual errors in multiple FISA applications, and the FBI adopted stringent new procedures, we are back to something that resembles where we started?

I can think of two main conclusions that could be drawn from a finding of widespread problems, depending on exactly what the inspector general’s audit shows. One is that the errors reveal a shortcoming in the Woods Procedures or related FBI practices. In that case, of course, the rules will need to change. The inspector general’s report emphasizes a failure to follow the Woods Procedures, see, e.g., Report at 413, not shortcomings in those procedures themselves, but it does have some recommendations for improvements. See, e.g., Report at 413 (“We also found basic, fundamental, and serious errors during the completion of the FBI’s factual accuracy reviews, known as the Woods Procedures, which are designed to ensure that FISA applications contain a full and accurate presentation of the facts”) and Appendix 1, 414-417 (recommendations for change, including Recommendation 1.b). The inspector general did recommend several potential improvements in other FBI procedures, including its rules for handling Sensitive Investigative Matters (id. at 414-417). In any event, if the audit suggests new and improved procedures for FISA accuracy, those can be adopted (some possibilities are discussed in Part 5 below).

I think the most likely explanation for a pattern of FISA failures—if that is what the audit finds—will be cultural. See C-SPAN 5:19:10. It is easy to forget that a generation has passed since an agent was barred from the FISA Court. I would not be surprised if there has been some cultural slippage. If that is the case, then strong leadership from the director and the attorney general, and other senior leaders, will be an essential element of reform. I think Director Wray has made a good beginning (Report at 426) by requiring several measures, including “a specialized, semiannual training requirement for FBI personnel at all levels who handle FISA and CHS matters.” See also id. at 428. But more will be required.

In fact, regardless of what the audit finds, based solely on the Crossfire Hurricane report, Director Wray is correct to take this very seriously. I am reminded of the still-remarkable transmittal letter sent by the WMD Commission to President Bush in 2005: “The FBI is one of the proudest and most independent agencies in the United States Government. It is on its way to becoming an effective intelligence agency, but it will never arrive if it insists on using only its own map.” The FBI has been through a lot of trauma since then, especially in the past few years, but I believe that elements of stubborn pride remain (not all of them necessarily all bad). Considering sticks as well as carrots, therefore, renewed fear of the FISA Court (see its orders of Dec. 17 and Dec. 5, 2019) or of FBI internal discipline may also be a motivator. See, e.g., C-SPAN 2:56:30; see also Report at 425 (letter from FBI Director Wray: “where certain individuals have been referred by the OIG for review of their conduct, the FBI will not hesitate to take appropriate disciplinary action if warranted at the completion of the required procedures for disciplinary review”). It is very difficult to maintain “scrupulous accuracy” in any complex process, and absent regular and vigorous reinforcement, and adaptation to changed circumstances, over time there is a tendency toward disorder and entropy. Ensuring accuracy and fidelity to facts and rules is not a one-and-done undertaking.

Cultural slippage is not the only possible explanation for widespread problems, if that is indeed what the audit finds. Some observers will surely conclude that things have always been this bad. Perhaps the FBI has never been scrupulously accurate in its FISA work. At the risk of sounding like one of those geriatric former government lawyers who proclaim that standards were high when they were in office—and you kids get off my lawn!—I will say that, even after reading the inspector general’s report, I do not believe things have always been that bad. I think the Woods Procedures and other reforms adopted around 9/11 were significant and had significant effects. When I returned to the National Security Division in 2009, I believed the FBI was carefully following the Woods Procedures. The National Security Division at the Justice Department established a dedicated intelligence oversight section in 2007, and in fiscal 2010, 2011 and 2012 expanded its staffing, output and mandate (including as necessary to address the FISA Amendments Act of 2008 and significant FISA issues at other intelligence community agencies—see, e.g., footnote 14 of this FISA Court opinion and this Lawfare post). These reviews did not find accuracy problems at the FBI of the sort identified in Crossfire Hurricane. On the other hand, they involved only a relatively small sampling and did not involve the depth of review conducted for Crossfire Hurricane (in my day, there were between 30 and 40 minimization reviews and between 15 and 20 investigation reviews per year, before being folded into an expanded intelligence community oversight program that involved around 90 reviews per year). As Horowitz testified, even the inspector general has never done as deep a dive on FISA as was done in Crossfire Hurricane (C-SPAN at 4:19:15, 5:18:50). Perhaps the forthcoming audit will find that factual error and sloppiness have always been a way of life for FBI FISA applications. Individual views, even when based on experience (as mine are), can be wrong and/or become outdated.

4. Barr, Durham and Nunes

In response to the Crossfire Hurricane report, Attorney General Barr released a statement arguing that “the FBI launched an intrusive investigation of a U.S. presidential campaign on the thinnest of suspicions that, in my view, were insufficient to justify the steps taken.” Although Barr thanked and praised the inspector general, this statement directly conflicts with the report’s core findings. John Durham, the U.S. attorney who is investigating the intelligence community’s approach to the investigation of Russian election interference (not limited to the Justice Department and the FBI), issued a public statement that “[o]ur investigation has included developing information from” outside the FBI and the Justice Department, including foreign sources, and “[b]ased on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.” Horowitz testified that he was surprised by these statements and that he found them unprecedented. See, e.g., C-SPAN 1:40:42, 2:09:25. But they did not alter his findings or conclusions. See, e.g., C-SPAN 1:38:50, 1:40:12.

What should we make of these statements from Barr and Durham?

As to Barr, one slightly detached way of framing the issue is through the idea that attorneys general must operate on a spectrum between apolitical law enforcement and overtly political advancement of the president’s policies. (I discuss this at greater length here and here.) Different attorneys general have found different points along that spectrum where they believe it is appropriate for them to function. In my professional lifetime, Attorney General Janet Reno probably represents the end of the spectrum closest to pure law enforcement, farthest away from politics. Barr is pretty clearly at the other end, and when his second tour as attorney general is done, we may be able to look back and assess authoritatively (perhaps with the benefit of an inspector general report) whether and to what extent he pushed the edges of the spectrum further (or too far) toward the political. Recently, another former attorney general, Eric Holder (who has endured his own share of accusations), opined that Barr has “made a series of public statements and taken actions that are so plainly ideological, so nakedly partisan and so deeply inappropriate for America’s chief law enforcement official” that he “is unfit to lead the Justice Department.”

As for Durham, his objections apparently concerned whether the initial referral from the Friendly Foreign Government, which caused the opening of Crossfire Hurricane, was enough to justify a full investigation—which the FBI actually opened—or only a preliminary investigation. See C-SPAN at 1:41:35. As Horowitz testified, and as his report explains, internal FBI procedures define two main types of investigations: “A Preliminary Investigation may be opened based upon ‘any allegation or information’ indicative of possible criminal activity or threats to the national security. A Full Investigation may be opened based upon an ‘articulable factual basis’ that ‘reasonably indicates’” a crime or threat to national security (Report at ii; see also id. at 19, 53-54 & n.167). As the inspector general’s report further explains, however, the point is largely moot because “all of the investigative actions taken by the Crossfire Hurricane team, from the date the case was opened on July 31 until October 21 (the date of the first FISA order) would have been permitted whether the case was opened as a Preliminary or Full Investigation” (Report at iii). Durham pointed out in his statement that “our investigation is not limited to developing information from within component parts of the Justice Department,” but this was not a revelation because the Crossfire Hurricane report in several places makes clear that the inspector general did not investigate agencies other than the Justice Department and the FBI (e.g., Report at i, 11).

If Horowitz has accurately described the disagreement and other confidential input from Durham, then Durham’s public statement is very unusual (although his confidential input was perfectly appropriate as part of the inspector general’s accuracy review in November). One of the key points made by Horowitz in his testimony, and in his prior reports criticizing former FBI Director James Comey, is the importance of not publicly discussing the findings in an ongoing investigation. That is essentially what Durham did, and it is hard to see a compelling reason for him to have done so if Horowitz’s testimony is accurate. As Horowitz explained in an exchange with Sen. Dianne Feinstein (C-SPAN at 1:45:42):

Feinstein: Did you give interviews about your investigation while it was ongoing? … Did anybody on the IG [inspector general] team? …

Horowitz: No, and it would have been entirely inappropriate for them to do so …

Feinstein: [W]hat are the dangers of discussing an investigation that’s ongoing?

Horowitz: So, I actually wrote, and we wrote, a 500-page report about that that we issued last year on the Midyear investigation and among other things criticized what occurred last year with regard to the handling of that investigation. Ongoing investigations … need to be protected from outside influence, you don’t know as an investigator or you shouldn’t conclude as an investigator, until you are done with the investigation. You shouldn’t be reaching your conclusions until that point. And so, giving preliminary ideas, advice, guidance, statements, can be misleading, and you should not be reaching final conclusions until you get to the end of the investigation.

In light of this, it is very likely that a complaint or referral concerning Durham and/or Barr will be lodged (whether by Congress or another person or entity) with the Justice Department’s Office of Professional Responsibility (Horowitz himself lacks jurisdiction to investigate Justice Department attorneys, although Congress is considering legislation to change that, as Horowitz noted during the hearing, see C-SPAN at 2:37:40). See, e.g., this Nov. 1, 2019, letter to the Office of Professional Responsibility from 10 senators concerning Attorney General Barr and others. The complaint will likely be that Barr’s and Durham’s statements were coordinated and fundamentally designed to distract or confuse immediate public reporting on, and reactions to, the inspector general’s finding about the absence of evidence of political bias in Crossfire Hurricane, which undercut claims of a political witch hunt so strongly promoted by the president and his political supporters. The complaint will likely include references to Barr’s prior discussions of “spying” on the Trump campaign and his characterizations of the Mueller report before it was issued. As we discussed on the Lawfare podcast, the proliferation of investigations and meta-investigations can make it seem like turtles all the way down.

Finally, what about Nunes? I have been very critical of him and his prior memo concerning the Page FISA applications. As I argued in March 2018, the “central irony of the memo prepared by House intelligence chairman Devin Nunes, we now know, is that it tried to deceive the American people in precisely the same way that it falsely accused the FBI of deceiving the FISA Court.” As I described it, Nunes’s central claim was that the FBI “misled the court about Christopher Steele” by not revealing Steele’s possible bias due to his work for President Trump’s political opponents. This claim, I said, was inaccurate, because the FISA applications in fact contained a full-page footnote describing Steele’s potential bias:

The FISA applications did not mention the “DNC” or the “Clinton campaign” by name, but they did recount how Steele was approached and then hired by “an identified U.S. Person,” Glen Simpson, who explained to Steele that he in turn had been hired by a “U.S.-based law firm,” Perkins Coie, “to conduct research regarding Candidate #1,” Donald Trump, and Trump’s “ties to Russia.” (The use of generic identifiers in the FISA applications is consistent with standard practice, as Nunes is well aware; the minority memo provides the names for each identifier.) The FISA applications also advised the court: “The FBI speculates that [Simpson] was likely looking for information that could be used to discredit [Trump’s] campaign.”

“The government’s disclosures” in the footnote, I argued, “enabled the court to take Steele’s information with a grain of salt.” Nunes apparently had seen that footnote in the FISA applications, but in his memo accusing the FBI of misleading the FISA Court, he did not even acknowledge it. Instead, he merely noted that the applications did not reference the Democratic National Committee, the Clinton campaign or Fusion GPS (by name), and complained that this was wrong because “the political origins of the Steele dossier were then known to senior and FBI officials.” I believed then, and I believe now, that this was extremely misleading and inappropriate, especially for an oversight committee chairman.

At the same time, as noted above, the inspector general’s report shows that there were significant failures in the FISA applications, and some of those failures relate to Nunes’s other criticisms. For example, Nunes’s memo states that “[t]he Page FISA application incorrectly assesses that Steele did not directly provide information to Yahoo News.” The inspector general found that Steele met with reporters from Yahoo News and that the FBI did not verify the facts before reporting them to the FISA Court (Report at 104-107; C-SPAN at 1:59:13), although the government did implicitly attribute the article to Steele’s employer or the involved law firm (see FISA application at 23 n.18). The Nunes memo also raised significant concerns about Bruce Ohr, the ODAG official who continued passing information from Steele even after he had been closed as an FBI source. Even if the Nunes memo had some of the details wrong, its basic point that this behavior was highly irregular was correct. The Nunes memo was also correct in reporting, albeit based on undisputed testimony from FBI Deputy Director Andrew McCabe, that the Steele dossier was a necessary component for the FISA applications on Page (the inspector general referred to the Steele dossier playing a “central and essential role” in the decision to seek the FISA surveillance; see Report at vi, 359).

5. FISA Reform

It will take some time for the dust to settle, and perhaps some additional time for the results of the broader FISA audit, but it seems very likely that Congress will at some point take up the possibility of FISA reform. What kinds of reforms will be proposed, considered and possibly adopted? No doubt many specific possibilities will emerge, but here are a few preliminary thoughts on the main options. Many of these options have been considered at one time or another in the past but have a greater chance of being enacted in our current environment; others are more radical and would not have been seriously considered at any time since 1978 other than the present. By describing these possibilities, I am not attempting to endorse or support them, or even (at least in some cases) to suggest that they should be seriously considered. I am only saying that, in our current environment, I believe that all or most of them may in fact be seriously considered.

Broadly speaking, it may be helpful to divide the range of possible reforms into two categories: those pertaining to the initiation and conduct of FISA surveillance, and those concerning possible suppression of FISA information in judicial or other proceedings.

The American Civil Liberties Union has already called for changes in the latter area: “The system requires fundamental reforms, and Congress can start by providing defendants subjected to FISA surveillance the opportunity to review the government’s secret submissions.” Under current law, the judge reviewing a suppression motion may disclose the FISA application and related materials to defense counsel only when it is “necessary” to do so; 50 U.S.C.A. §§ 1806(f) (electronic surveillance), 1825(g) (physical search), 1845(f)(1) (pen/trap surveillance). In practice, disclosure does not occur. See, e.g., U.S. v. Daoud, 755 F.3d 479, 481 (7th Cir. 2014) (reversing one of the very few lower-court orders to disclose FISA materials), opinion supplemented, 761 F.3d 678 (7th Cir. 2014); U.S. v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982) (FISA “anticipates that an ex parte, in camera determination is to be the rule. Disclosure and an adversary hearing are the exception, occurring only where necessary”). If it wants to change that, Congress could adopt a lower standard than “necessity” for disclosure, including going all the way to a standard borrowed from Sections 4 or 6 of the Classified Information Procedures Act. This standard could be applied in all cases or in a subset of cases, such as those involving domestic political campaigns, other sensitive investigative matters, U.S. persons, and/or agents of foreign powers who participate in clandestine intelligence activities other than espionage for a foreign intelligence service (50 U.S.C. § 1801(b)(2)(B)).

Such a change, of course, would have done nothing immediate for Page, or for anyone else whose surveillance does not lead to criminal prosecution (e.g., because the facts end up falling somewhere between probable cause and proof beyond a reasonable doubt). The idea behind the change would be to protect those who are subject to prosecution (or other proceedings in which FISA information is used) and also to change the FBI’s culture, creating a risk of disclosure that might encourage more attention to detail and accuracy in a wider set of cases. The prospect of possible future cross-examination by informed defense counsel may tend to concentrate an affiant’s mind. At the same time, even after the lowering of the FISA wall, most FISA applications probably do not lead to judicial proceedings, so trying to influence the front end of FISA by changing the back end may not be the most efficient approach.

Going directly to the front end of FISA, the possibilities include, in all cases or in some subset of cases (e.g., those involving U.S. political campaigns), at least the following seven categories of potential change:

First, Congress could amend some or all of the definitions of “agent of a foreign power.” See 50 U.S.C. § 1801(b)(1)-(2). At the extreme, for example, Congress could foreclose FISA surveillance of U.S. persons who engage in covert action—clandestine intelligence activities other than espionage—at the direction of a foreign intelligence service or network, by repealing 50 U.S.C. § 1801(b)(2)(B). This would be a radical act that would presumably reduce the ability of the FBI to detect and prevent activities, such as election interference or other active measures, carried out in coordination between foreign intelligence services and U.S. persons, at a time when those threats are on the rise. Today, however, some observers may believe that it is appropriate in order to protect U.S. persons and political campaigns from FBI “spying.”

Short of repeal, Congress could amend the definition by specifying the individual criminal laws that must be implicated under Section 1801(b)(2)(B), including statutes such as FARA, 18 U.S.C. §§ 371 and 951, and perhaps others, in place of the more general (current) requirement of actions that “involve or are about to involve a violation of the criminal statutes of the United States” (cf. 18 U.S.C. § 2516).

Second, Congress could leave the definitions unchanged but require certain additional factual disclosures or showings by the government and/or findings by the Court, whether in all cases or in a subset of cases (cf. 50 U.S.C. § 1805(c)(3) (special directions for roving FISA surveillance)). For example, Congress might require, or more explicitly authorize the FISA Court to require, enhanced showings or disclosures (that could result in Court findings) concerning any of the following:

  • Derogatory information on, and/or concerning the reliability of, sources and key subsources.
  • The significance of First Amendment activity in establishing probable cause that a FISA target is an agent of a foreign power (the current standard forbids reliance “solely” on First Amendment activity, see 50 U.S.C. § 1805(a)(2)(A), but a different adjective could be used).
  • Where applicable, perhaps the knowledge of the FISA target that he is working at the direction of a foreign intelligence service and/or engaging in criminal conduct.

See generally H.R. Rep. No. 95-1283, 95th Cong., 2d Sess., Part I (June 8, 1978) at 41-42 (discussing the key elements of the definition of “agent of a foreign power” set out in Section 1801(b)(2)(B)).

Third, Congress might require additional elements in the FISA certification and/or limit the number of eligible certifying officials in certain cases. See 50 U.S.C. § 1804(a)(6). For example, it might forbid certification by the FBI’s deputy director, rather than its director, in certain cases, at least when the director is available.

Fourth, relatedly, Congress might require the personal review of the attorney general (not the deputy attorney general or assistant attorney general for national security) before an application may be filed in certain types of cases, at least when the AG is available (cf. 50 U.S.C. § 1804(d)).

Fifth, Congress might incorporate (or explicitly authorize the court to incorporate) the Woods Procedures into court-approved minimization procedures under 50 U.S.C. § 1801(h), and/or otherwise make them part of a FISA Court order (cf. 50 U.S.C. § 1805(c)(2)(A)). It might also require additional documentation of adherence to the Woods Procedures in connection with an application, including from agents or others whose individual sign-offs roll up to the FISA affiant (cf. 50 U.S.C. § 1804(c)). The Page FISA applications (e.g., page 53 of the October 2016 application) recited that the “FBI has reviewed this verified application for accuracy in accordance with [the Woods] procedures, which include sending a copy of the draft to the appropriate field office(s). A copy of those procedures was previously provided to the Court.” At the extreme, a standard modeled on Sarbanes-Oxley financial reporting and/or securities disclosure rules, above and beyond the familiar standard of Franks v. Delaware, 438 U.S. 154 (1978), could be considered.

Sixth, Congress might also approach the issue through oversight and require the attorney general as part of regular reporting on FISA to include an assessment of the government’s accuracy before the FISA Court, describing the nature and results of any auditing and other fact-checking of FISA applications, and assessing any significant inaccuracies that were discovered and remedies that were adopted (cf. 50 U.S.C. § 1808).

Seventh, for its part, the executive branch might consider using field agents, rather than headquarters agents, as FISA affiants, or otherwise changing the way in which FISA applications and/or the Woods Procedures are implemented and managed. Perhaps improved technology could make this more feasible than it was when the Woods Procedures were adopted (see, e.g., the discussion above concerning the attorney general’s May 2001 directive to report on the feasibility of a Top Secret / Sensitive Compartmented Information (TS/SCI) email system connecting FBI field offices, FBI headquarters and the Justice Department). Measures that would increase connectivity between the attorneys filing the FISA applications and the agents closest to the investigative facts (without fragmenting the FISA program) are worth seriously considering.

Whether these changes should extend to all cases, or only to some, might depend on the results of the inspector general’s audit and/or preexisting political and policy preferences. If applied to all cases, some of these reforms could exert truly massive change. But some changes, especially if applied to a relatively narrow subset of “political” or otherwise “sensitive” cases, might be nondisruptive to the FISA program as a whole, albeit still helpful. Congress would need a workable definition of a “political” or otherwise sensitive case as the trigger for the new requirements, but the FBI’s definition of a Sensitive Investigative Matter (SIM) in DIOG § is at least a good starting point (subject to refinement based on recommendations in the inspector general’s report). That definition currently extends to

an investigative matter involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security), a religious or domestic political organization or individual prominent in such an organization, or the news media; an investigative matter having an academic nexus; or any other matter which, in the judgment of the official authorizing the investigation, should be brought to the attention of FBI Headquarters ... and other DOJ [Justice Department] officials.

A statutory change could use that language (or similar language) or it could incorporate the SIM definition by reference so that the statute tracks the DIOG as the latter evolves. For example, a standard requiring the personal review of the attorney general or acting attorney general (not the deputy attorney general or assistant attorney general for national security unless the attorney general is not available) for FISA applications in (properly defined) SIM cases would be in keeping with the inspector general’s recommendations for higher-level review in such cases.

*. *. *

The Crossfire Hurricane report is a major event. It has potentially significant implications for FISA. Congress (and the rest of the country) is busy right now, with impeachment and other matters, but a time may come when there is bandwidth to consider those implications. (This may be when certain existing FISA authorities are due to sunset, now set for the spring of 2020.) This blog post is a small beginning toward preparing for that day. We have had such moments before and managed to get through them.

Ideally, if and when FISA reform is seriously considered, Congress will be able to approach the issue with some long-term perspective. If not, and if an unusual partisan alignment produces an extreme result, I worry that in the not-too-distant future we may find ourselves on the other end of the familiar national-security pendulum swing, reviewing a new inspector general or other report—this time criticizing the Justice Department, the FBI and/or the intelligence community for the proliferation of red tape or other restrictions, and the failure to stop an attack or other grave, hostile acts committed against our national security.

David Kris is a founder of Culper Partners, with more than 30 years of experience in the private sector, government, and academia. He has been a corporate director, general counsel, deputy general counsel, and chief compliance officer; assistant attorney general for national security, associate deputy attorney general, and a trial attorney at the Justice Department. He serves on advisory boards for several government agencies and as a FISA Court amicus curiae. He is the author or co-author of several works on national security and teaches national security law. He is a member of the board of directors of Lawfare.

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