Durham Testimony Sharpens Determination for FISA Reform in Both Parties

Photo Credit: C-SPAN

​The substance of Special Prosecutor John Durham’s appearance earlier this week before the House Permanent Select Committee on Intelligence (HPSCI) is not public. But it is clear from the attitudes of Members who emerged from that closed hearing that what they heard – and discussed – left them with a determination to insist on reform of Section 702 of the Foreign Intelligence Surveillance (FISA) as a condition for renewing this surveillance authority in December.
 
Durham’s famous report on the FBI/Carter Page surveillance scandal centered around FISA’s Title 1 authority, which involved repeated submissions by the FBI to surveil Trump campaign aid Page. With lies of omission and commission, these submissions included a forged document by an FBI lawyer that attempted to hide Page’s service to the CIA as a highly rated informant.
 
Rep. Mike Turner, committee chairman, and Rep. Jim Himes, ranking member, both agreed that Durham’s appearance before the committee without cameras led to a probing and dispassionate discussion that included ways to reform Section 702 of the Foreign Intelligence Surveillance Act (FISA).
 
“It was interesting to hear from Mr. Durham that he has concerns that there are reforms that need to go in place, and that there are still issues that need to be addressed,” Chairman Turner said. “I think that we were able to get some information that would be very helpful for us and the work that we have to do on both FISA renewal, FISA reforms, and also reform issues with the FBI.”
 
Ranking Member Himes also came out of that HPSCI hearing saying that there was a near-unanimous view on the committee that 702 has to be “reauthorized with reforms.”
 
It is easy to connect the dots. If Members heard how easily the FBI could misinform a FISA court judge, how much easier would it be to jump any guardrails when Americans’ personal data is examined under the 702 process, which is not under any judicial review? And it is likely the hearing unscored for Members that even when there is a federal judge, whenever there is a case in which sensitive First Amendment rights of Americans are at stake – as in the obvious case of a presidential campaign – the appointment of a civil liberties expert as an advisor to the court, or amicus, should be required.
 
Just imagine how much trouble might have been avoided for the nation, a presidential campaign, and the FBI itself if the bureau had been simply forced to answer tough questions before FISA court Judge James Boasberg.