Spy Court Picks FISA Abuse Denier To Tackle FISA Abuse
The nation’s top spy court appointed an Obama-era Justice Department official who has denied and downplayed FBI surveillance abuse to assess the FBI’s response to a scathing new report cataloguing problems with how the agency secured authority to spy on a Donald Trump campaign affiliate.
Foreign Intelligence Surveillance Court (FISC) presiding Judge James Boasberg appointed David Kris to review the FBI’s proposed changes to its surveillance application process even though he spent the past few years running interference for the FBI as substantive criticism of the agency mounted.
Lengthy investigations in the House of Representatives and by the Department of Justice inspector general showed major problems with the claims the FBI made as part of an investigation into whether Trump was a traitor who had colluded with Russia to steal the 2016 election. Those problems include withholding exonerating evidence, undue reliance on shady sources, and outright alteration of evidence.
Kris, who served as assistant attorney general for the DOJ’s National Security Division, recently claimed the IG report that catalogued egregious abuse of the Foreign Intelligence Surveillance Act (FISA) powers actually vindicated the FBI. He also smeared Rep. Devin Nunes in 2018, saying his initial sounding of the alarm about those abuses was incorrect, threatened national security, and should be harshly punished.
Kris appeared in locations that pushed the false Russia collusion narrative, such as Rachel Maddow’s MSNBC show, the Lawfare blog, and Twitter, to defend the FBI and attack President Trump and other critics of the harmful surveillance campaign. He once wrote that Trump “should be worried” that Special Counsel Robert Mueller’s investigation into treasonous collusion with Russia meant “the walls are closing in.”
The appointment of a former official who served as an apologist for the FBI signals that the court isn’t particularly concerned about the civil liberty violations catalogued by Inspector General Michael Horowitz’s investigation into the year-long surveillance of Carter Page. Page is the Trump campaign affiliate whose phone and email communications federal agents wiretapped, and who had confidential human sources and overseas intelligence assets placed against him. False claims that Page was a Russian spy were leaked to the media by government officials as part of a years-long campaign to paint President Trump as a traitor who had colluded with Russia to steal the 2016 election.
The court “finds it appropriate to appoint David S. Kris, Esq., to serve as amicus curiae to assist the Court in assessing the government’s response to” a Dec. 17, 2019, order to “inform the Court . . . of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.”
The pick was justified on the grounds that he is one of the few officials with FISA experience. But Kris has repeatedly shown himself to be a reflexive defender of the FBI, even as evidence mounted of its malfeasance. Here are some examples of that.
Kris Adopted Resistance Messaging about the Russia Collusion Theory
Kris was one of the many Washington insiders who either fell for or pretended to fall for the validity of the Russia collusion hoax.
“I suspect that POTUS and his closest advisors are and should be worried that, depending on the evidence, Mueller’s next steps will make it feel like the walls are closing in,” he opined on Twitter.
The Mueller investigation noted that Russia, as per its historic practice, attempted to meddle in the 2016 campaign. It found no evidence that it had colluded with any American, much less any Trump campaign affiliate, much less Trump himself, in its ongoing meddling campaign.
Kris Was Grievously Wrong about the Nunes Memo
Kris’ biggest problem was his published denunciation of the now-vindicated Nunes memo. He joined many other members of the Resistance, whether in the media, the Democratic Party, or the NeverTrump movement, in denouncing Nunes and defending the FBI as beyond reproach.
“The Nunes memo was dishonest. And if it is allowed to stand, we risk significant collateral damage to essential elements of our democracy,” Kris said. In fact, the Nunes memo was right, although it only touched on some of the FBI malfeasance that the inspector general report later confirmed in detail.
Kris specifically said the “fundamental claim” by Nunes that the FBI misled the court about Christopher Steele was “not true.” Kris said that the government “provided the court with enough information to meaningfully assess Steele’s credibility.” He credulously accepted the FBI’s claims that there was probable cause that Page was a secret Russian asset. “It’s disturbing that Page met that legal standard and that there was probable cause to conclude he was a Russian agent,” he wrote.
Kris said Nunes should be removed from office and removed as chairman of the committee. He floated the idea that Nunes should be charged with obstruction of justice. Kris called for voters to rise up against Republicans and unseat them to keep Nunes from performing oversight of the agency and intelligence community.
Kris Adopted Resistance Spin on the IG Report
When the IG report came out, Kris was in lockstep with the spin that the leakers had put out for the weeks leading up to the release of the Horowitz report. He said, as the pre-report leakers asserted through friends in the media, that the “main finding” was that there was no bias and that the claims of critics were fully repudiated. He did acknowledge some mistakes, but downplayed them.
Kris Helped Maddow Defend the FBI against Oversight
When the applications to spy on Page — a man who was victimized by a false dossier alleging he betrayed his country and endured one year of intensive surveillance without being charged with any crime, much less any crime related to treasonous collusion with Russia to steal the 2016 election — were released, Kris appeared on Rachel Maddow’s MSNBC show to defend the FBI and lambast its critics.
Maddow spun the release of those applications in such a way as to say they helped the FBI’s case that Page was a threat to national security who had lost his right not to be spied on by the government. Kris agreed, and claimed the FBI had done everything right in its surveillance process. Kris was presented as one of the few people who have ever had responsibility for the FISA process. He used his time to criticize Nunes, the member of Congress who first revealed the problems at the FBI in the face of derision by the media and other members of the Resistance.
Kris falsely claimed that the applications “substantially undermine the president’s narrative and that of his proxies” and that if there were more investigation or transparency, it would “get worse and not better” for them.
He said, though, that more investigation and release of information would be “dangerous.” He criticized the president, saying he was “free to make up whatever facts suit him” while the FBI was at a disadvantage by its desire to do things properly.
When Kris was attacking Nunes for bringing the FBI malfeasance to light, he claimed that if the FBI had withheld information in its FISA applications, “heads would have rolled on Pennsylvania Avenue.” FBI headquarters are located on Pennsylvania Avenue. The FBI has been definitively shown to have withheld information in its FISA applications, but instead of heads rolling, vehement apologists of the agency are being assigned to assess proposed reforms.