Foreign Intelligence Surveillance Act reform will protect our safety
For four decades, the Foreign Intelligence Surveillance Act has provided a legal process for monitoring suspected spies and terrorists operating in the United States. Now the law is under fire due to a series of deficiencies in how the FBI used it to justify surveillance of Carter Page, an American and former campaign adviser for Donald Trump. A blistering watchdog report, unceasing criticism by the president, and a looming deadline to avoid expiration of key provisions have some calling for radical changes or even eliminating FISA entirely. While their concerns are understandable, what is needed are reforms to preserve the ability to protect our national security while ensuring that this sorry episode will never happen again.
Under FISA, Congress established the Foreign Intelligence Surveillance Court after discovering that the government had conducted widespread warrantless surveillance of Americans in the 1960s and 1970s based on their political beliefs. If the FBI wants to conduct any counterintelligence surveillance of an individual within the United States it must apply to this court to do so. Whereas in a criminal case the standard for an electronic surveillance warrant is probable cause of criminality, the standard in the FISA court is probable cause that an individual is acting as an agent of a foreign power. Unlike the criminal process, a FISA warrant will never be scrutinized by defense counsel because the entire process is classified.
FISA surveillance of Page started under operation Crossfire Hurricane, which was an FBI counterintelligence investigation that morphed into the Russia probe by special counsel Robert Mueller. The FBI submitted a FISA application and three renewal requests for surveillance of Page. But after two years, Page was never charged with a crime, and Mueller had failed to establish that the Trump campaign conspired with Russia to influence the 2016 presidential election. Even more damning was the highly anticipated review done by Justice Department inspector general Michael Horowitz. He discovered “at least 17 significant errors or omissions” in the four FISA applications for Page. The Justice Department has since admitted that two of the four applications lacked predication to establish probable cause.
So it was no surprise that many feel the FISA process was manipulated to spy on the Trump campaign. The president has vowed not to renew key elements of the law unless reforms are implemented. Moreover, Senator Rand Paul has called for prohibiting FISA surveillance of Americans and relying on the criminal justice system, while still others have proposed abolishing the FISA court entirely. This would be a mistake. If authorities believe that an American citizen within the United States is conspiring with a hostile foreign government or terrorist group, the FBI must be able to conduct surveillance of that individual. At the same time, there needs to be a system in place to protect the privacy rights of that individual. Repealing FISA would mean reverting to the era of surveillance based solely on unchecked executive branch directives, or possibly forgoing authority to conduct such counterintelligence surveillance altogether.
The smart move is to address the legitimate concerns about FISA without dismissing the entire program. Most of the issues identified involve FBI officials failing to provide the FISA court with information that could have called into question whether probable cause existed. While the FBI has enacted corrective actions on how FISA applications are prepared, and the FISA court appointed former Justice Department official David Kris to review its own internal reforms, there is still far more that can be done.
The FISA court already has in place an “amicus” program in which experts who are previously cleared are called on to review new and novel issues that arise in the course of a FISA application for a warrant. Going forward, every FISA application in which a person in the United States is a target for surveillance should have a dedicated advocate to pressure test the government evidence supporting probable cause. This should be an employee of the FISA court acting with the interests of the potential counterintelligence surveillance target in mind, much like how federal public defenders are assigned to the accused during criminal cases.
FISA skeptics are aghast at the seeming lack of accountability for those involved in the Page warrant failures that had been identified by Horowitz. While the FISA court has barred those Justice Department and FBI officials under disciplinary review from appearing going forward, the FBI should let the public know how those individuals are ultimately dealt with. Moreover, the FBI should consider the recommendation by Kris for case agents to sign FISA affidavits rather than their supervisors, because those closest to a case will be both more knowledgeable of the facts and should take more seriously being on the hook for any deficiencies in their document filings.
FISA has been “reformed” numerous times, and yet serious issues remain. The FISA court must be even more transparent on how applications are reviewed and approved, and how its decisions implicate the privacy of Americans. Congress must be relentless in overseeing how the Justice Department and FBI officials conduct themselves before the FISA court and how effectively any reforms are implemented. Counterintelligence surveillance of any American, let alone one connected to a presidential campaign, should have been handled with the utmost precision. Instead, what was possibly the most politically sensitive case of FISA surveillance in history was botched big time. Let us insist on meaningful reforms to restore confidence that our government can protect both our national security and our privacy. Now is the time to finally get this issue right.
Joseph Moreno is a former national security prosecutor with the Justice Department and United States Army combat veteran. He is now a global litigation partner with Cadwalader Wickersham & Taft. Keith Gerver is a former intelligence analyst with the Defense Department and a founding member of the Harvard National Security Journal. He is now a white collar defense and investigations attorney with Cadwalader Wickersham & Taft. The views in this column are those of the authors and not their employer.