FBI OVERSIGHT By Zoë Hopkins INTRODUCTION Recent FBI investigations into the 2016 presidential elections have become a political battleground. In December 2018, James Comey gave his second Congressional testimony. Comey, the former director of the Federal Bureau of Investigation (FBI), was under fire for his investigations into the 2016 presidential campaigns of Donald James Comey, Trump and Hillary Clinton, only the latter of which he had chosen to the 7th director of disclose. However, according to Congressional representatives, the public will never know the whole of what was discussed during the the FBI hearing. Much of the information Comey disclosed pertaining to the Wikipedia FBI is not allowed to reach public ears because it is highly classified. FBI rules surrounding classification have also prevented congressional investigators from releasing a report on their findings surrounding Comey, his investigations, and their relationship to the The [Comey story elections. The hearing and events surrounding it have sparked a national debate about transparency within intelligence has] sparked a organizations, the FBI in particular. national debate The murkiness around the Comey investigations is part of a larger about transparency pattern of lies and cover ups that has recently seemed to plague the FBI, its agents, and its leadership. Comey himself has advocated for increased transparency within the FBI and other intelligence organizations. This past March, the former FBI director wrote an opinion piece in the Washington Post arguing for this possibility on the grounds that opacity often “challenges law enforcement’s credibility.” But Comey’s own actions concerning the presidential election investigations suggest that reforms in both transparency and oversight are perhaps necessary. The Comey story is symptomatic of larger problems with the agency and beg important questions about who is overseeing the FBI and how they are succeeding – or failing – HARVARD MODEL CONGRESS to do so. Your task is to find a solution to the growing issues in transparency plaguing the FBI. EXPLANATION OF THE ISSUE Historical Development The problems and complexities behind FBI oversight and Your task is to transparency have existed since the birth of the organization. The find a solution to Bureau was established in 1908, a year marked with growing organized crime and violence in America’s larger cities. It was also the growing an era of immense corruption within big business and local, state, issues in and national political theaters. The FBI developed as a branch of the transparency Department of Justice, which no longer had the capacity to oversee plaguing the FBI. investigations and intelligence operations. Today, the FBI is “an intelligence-driven and threat-focused national security organization with both intelligence and enforcement responsibilities”. The FBI technically functions as an independent organization, but its oversight is largely handled by The seal of the Congress, the Department of Justice, and the Director of National FBI Intelligence. Committees in both the Senate and the House review Wikipedia the Bureau’s budget, programs, and selected investigations. The Director of the FBI reports to the Department of Justice, an organization that is also entitled to investigate the FBI for internal misconduct. The Director of National Intelligence, who is the President’s principal intelligence advisor, also oversees the FBI’s intelligence activities. According to a number of authorities in Congress and the intelligence community, this sprawling and complex web of oversight has actually made the FBI less efficient and Steele Dossier – A more prone to internal problems such as the abuse of power. private intelligence The implications of this problem have been far reaching. In report by former January 2018, the House Intelligence Committee voted to release a British intelligence memo on the FBI alleging that the agency had abused its power to officer Christopher surveil. Specifically, the memo accused the FBI of abusing the Steele written in 2016 Foreign Intelligence Surveillance Act (FISA) over its use of the and released January opposition research “Steele dossier” on President Trump and 2017. The dossier Russia as part of the case to obtain a FISA warrant for former Trump alleges misconduct campaign adviser Carter Page. Since, a series of reports by DOJ and conspiracy Inspector General Michael Horowitz have detailed the extent of between the Trump power abuses and misconduct within the FBI. In March of 2018 FBI campaign and the retaliation against internal whistle blowers was exposed, despite Russian government years of bureau pledges to fix the problem. A subsequent report that before and during the April revealed that former FBI deputy director Andrew McCabe had 2016 election. lied to the bureau’s internal investigations branch to cover up a leak he orchestrated. As of April 2019, two dozen people in the FBI and a © HARVARD MODEL CONGRESS 2020 – REDISTRIBUTION OR REPRODUCTION PROHIBITED 2 HARVARD MODEL CONGRESS DOJ are facing criminal referral over events related to the Trump- Russia investigation. However, these cases, including McCabe’s, have not yet been decided in the courts, meaning they have not yet been found guilty of any criminal conduct. Nevertheless, this recent litany of internal corruption and power breeching is tied to a number of policy problems. Scope of the Problem Structure of the Agency: Current Oversight Both the internal structure of the FBI and its relationships with other government entities is complicated. The FBI is led by a Director who is responsible for overseeing the FBI’s six branches and its investigations; staffing leadership; and ensuring its operations are handled correctly. The Director is appointed by the President and confirmed by the Senate. While the Senate’s role of confirming the Director demonstrates the agency’s reliance on democratic structures, some question whether the FBI can be a truly independent, non-partisan organization given that the President is responsible for appointing the director. Again, given that the FBI is part of the Department of Justice, the FBI Director reports to the Attorney General of the United States, who is in charge of the DOJ. The seal of the Considering that both FBI and DOJ members have been recently FBIThe seal of the The seal of the implicated in the scandal surrounding the Trump-Russia FBI investigation, a number of members of the intelligence community, FBI WikipediaWikipedia The seal of the including House Intelligence Committee Chair Devin Nunes have Wikipedia FBI expressed doubt over whether the DOJ and Attorney General can Wikipedia provide adequate oversight over the FBI. The FBI is also subject to congressional oversight spearheaded by a number of committees including the House and Senate Intelligence committees, the Senate Appropriations Committee, and the House Committee on Ways and Means. The intelligence committees are Both the internal responsible for holding hearings in which members of the intelligence community, including agents and leadership from the structure of the FBI are required to give testimony about their operations and FBI and its investigations. They subsequently conduct reviews of intelligence relationships programs or events and of intelligence analysis. However, the with other intelligence committees are subject to certain limitations: in many government cases the Executive branch can restrict access to highly classified entities is materials from ranking members of the committee. The Appropriations and Ways and Means committees are even more complicated stringently restricted. These two committees are licensed to hear and decide the FBI budget; however, they are not privy to all details of FBI operations. © HARVARD MODEL CONGRESS 2020 – REDISTRIBUTION OR REPRODUCTION PROHIBITED 3 HARVARD MODEL CONGRESS Surveillance and Intelligence For decades, the FBI has been criticized for its tactics of surveillance and amassing intelligence. NGOs like the American Civil Much of the Liberties Union (ACLU) have called out the FBI for its surveillance public concern that they deem an “intrusion upon the private communications of ...tied to the innocent citizens” that is based on “the vaguest standards.” In a 2013 belief that their report, the ACLU gave an extensive account of FBI surveillance over the course of the 21st century that unfairly targets immigrants, racial surveillance and religious minorities, and political dissidents. Much of the public tactics violate concern surrounding lack of FBI oversight is tied to the belief that privacy and their surveillance tactics violate privacy and Fourth Amendment Fourth rights. The FBI has defended itself against these criticisms with Amendment appeals to national security, while denying the allegations that their rights surveillance tactics are based on discriminatory profiling. Considerable criticism has fallen on the Foreign Intelligence Surveillance Court (FISC). The FISC, established by the Foreign Intelligence Surveillance Act (FISA) is a federal court built to grant and/or deny requests by the FBI and the DOJ for surveillance warrants against foreign entities. However, the FISC has been criticized for providing too little oversight. These critiques largely fall on three problems. Firstly, only the government is represented The seal of the before the FISC--there is no defense to challenge the prosecution, FBIThe seal of the namely the request for the warrant. Secondly, the FISC approves