FISA court grants DOJ a FISA reform extension due to coronavirus

FISA court grants DOJ a FISA reform extension due to coronavirus

The Foreign Intelligence Surveillance Court granted the Justice Department a weeklong extension pushing back a deadline to provide details about its court-ordered Foreign Intelligence Surveillance Act reforms, citing the coronavirus outbreak.

“The government, through counsel, orally requested a one-week extension of the time to provide such information, in view of modified staffing and telework practices occasioned by the COVID-19 outbreak,” FISA court presiding Judge James Boasberg wrote on Wednesday. “Accordingly, the government’s time to provide such information is hereby extended.”

The deadline was moved to April 3.

DOJ Inspector General Michael Horowitz released a report in December that criticized the DOJ and the FBI for at least 17 “significant errors and omissions” related to the FISA surveillance of Trump campaign adviser Carter Page and for its heavy reliance on British ex-spy Christopher Steele’s salacious and unverified dossier. Steele put his research together in 2016 at the behest of the opposition research firm Fusion GPS, which was funded by Hillary Clinton's presidential campaign and the Democratic National Committee through the Perkins Coie law firm. The DOJ watchdog also critiqued the FBI for not passing along information gleaned from its confidential human sources to the court.

Earlier this month, Boasberg demanded the Justice Department provide the court information related to a host of proposed FISA reforms, including a copy of the updated confidential human source checklist and information on whether the informant’s handler must verify the informant’s reliability prior to FISA filings; a description of the responsibilities the bureau’s lawyers have throughout the FISA process; an illustration of the agency’s plans for improving the verification of information in FISA applications; updates on what steps FBI agents out in the field had taken to take bigger roles in the FISA process; and a walk-through of the DOJ’s Office of Intelligence Oversight Section’s process for making sure FISA applications are complete and accurate.

The judge also asked the Justice Department for a report on “improving DOJ proactiveness in ensuring the completeness of FISA applications,” including “whether the government believes formalized guidance should be provided to DOJ attorneys to ensure their diligence in soliciting the types of information that were improperly omitted from the Page applications and, if so, how and when DOJ plans to provide such guidance.”

In addition, Boasberg’s opinion ordered that “no DOJ or FBI personnel under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing, or submitting such applications to the Court.”

All the FBI employees mentioned in the FISA report were referred to the bureau's disciplinary arm, FBI Director Christopher Wray told lawmakers last month.

Boasberg said that “the frequency and seriousness” of the errors found in the Page FISA warrant process “called into question the reliability of the information proffered in other FBI applications.” The judge noted the government has been “undertaking multiple remedial measures” in response to Horowitz’s report and to court orders. But Boasberg noted that “the errors the OIG pointed out cannot be solved through procedures alone” and said the Justice Department and the FBI “must fully understand and embrace the heightened duties of probity and transparency” in secret court proceedings.

The outbreak of the coronavirus, of which there have been more than 66,000 cases and at least related 947 deaths in the United States, has disrupted other matters concerning the Justice Department. For instance, a hearing the House Judiciary Committee scheduled with Attorney General William Barr for the end of the month was postponed because of the pandemic.

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