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Proposed FISA Reforms Will Mean Nothing Unless Judges Do Their Job

Posted on Thursday, November 16, 2023
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by Andrew Shirley
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20 Comments

AMAC Exclusive – By Andrew Shirley

US court building - FISA reform proposals

A bipartisan effort to reform a highly controversial section of the Foreign Intelligence Surveillance Act (FISA) has renewed optimism that Congress may have the votes to reign in some of the abuses of power by U.S. intelligence agencies. But such reforms will likely fail to do much to protect Americans’ privacy unless the FISA Courts stop allowing themselves to be lied to and fulfill their constitutional duty to the American people.

The Foreign Intelligence Surveillance Act was originally passed in 1978 and establishes procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers” – which may include American citizens suspected of being engaged in espionage.

In order to determine what constitutes a legitimate reason to surveil someone, FISA establishes a special court, the Foreign Intelligence Surveillance Court (FISC), which reviews and approves requests for surveillance warrants against suspected foreign intelligence agents inside the United States. The court operates in secret and has the authority to issue warrants for electronic surveillance and physical searches.

In other words, FISC decides whether the FBI, CIA, and other intelligence agencies have legitimate reason to spy on American citizens.

After the September 11, 2001, terrorist attacks, there were significant changes and expansions of the FISA powers as part of the government’s efforts to enhance national security and combat terrorism. These changes were primarily enacted through the now-infamous USA PATRIOT Act, which expanded the government’s surveillance and intelligence-gathering powers.

One of the most controversial expansions of FISA powers was the passage of Section 702 in 2008. Section 702 grants intelligence agencies the right to collect the communications of non-U.S. persons located outside the United States without a warrant.

However, Section 702 surveillance can “incidentally” collect the communications of U.S. persons who may be in contact with the targeted foreign individuals. In practice, this means that Section 702 grants intelligence agencies the right to gather and store data on American citizens without any court authority – what civil liberties groups have long viewed as a clear violation of Americans’ constitutional rights.

Section 702 as well as other FISA provisions have come under increasing scrutiny in recent years following a spate of revelations that intelligence agencies blatantly lied to FISC in order to launch baseless spying operations on American citizens – in some cases for apparently politically motivated reasons.

In 2019, for instance, FISC ruled that the FBI “made serious and repeated mistakes” in seeking permission to conduct surveillance of Trump campaign advisor Carter Page, as well as other members of Trump’s team during the 2016 election. In other words, the FBI provided faulty information to FISC in order to justify the spying operation on Trump’s campaign.

That illegal surveillance became the basis not only for the spying, but for the entire debunked Trump-Russia collusion narrative that the media and Democrat Party used as a cudgel throughout Trump’s four years in the White House.

This past May, another bombshell FISC report found that the FBI issued 278,000 improper searches under FISA authority in 2021 alone. Those searches included an illegal search for information about a U.S. senator, a state senator, and a state-level judge.

Yet, for all the revelations of abuse and corruption that FISC found in FISA applications, the response of the court has been muted at best. Despite the fact that the FBI defrauded the court on its applications for approval to spy on the Trump campaign, all the court did in response was sign an open letter limply criticizing the agency.

FBI lawyer Kevin Clinesmith, who falsified a claim made to sustain government surveillance of Carter Page, received only probation and no prison time for his role in propping up the Russian collusion hoax. Although the FBI was forced to issue a public apology to FISC (but notably not the American people) for lying to spy on Trump’s campaign, they have offered no credible evidence that any reforms have been implemented to prevent such wrongdoing in the future.

Amid such shocking instances of abuse of power, many conservatives have in recent years pushed for major overhauls to FISA powers – in some cases joined by progressives in an unlikely alliance.

Section 702 in particular now faces a bipartisan reform effort. The provision has been reauthorized twice, in 2012 and 2018, and must be reauthorized again before the end of this year. In a rare instance of bipartisanship, lawmakers from both parties last week introduced a measure called the Government Surveillance Reform Act that would prohibit collection of U.S.-based communications and place new requirements on intelligence agencies’ searches for 702 data.

Along with requiring the intelligence community to destroy collected data after a certain period of time, the reform bill also requires intelligence agencies to obtain approval from the Attorney General before collecting data on U.S. citizens. These searches would furthermore only be allowed in cases related to terrorism, drug trafficking, and attacks on critical infrastructure or government officials.

However, while such reforms are warranted, they appear headed for trouble at the White House, with the Biden administration saying that the legislation is “both the wrong fit for what we’re doing and operationally unworkable.”

Regardless, a real need for reform that is going ignored appears to be within the FISA courts themselves, which were created to hold the intelligence community accountable and protect Americans’ constitutional right to privacy. Unless FISC judges become more willing to hold the FBI and other agencies accountable for lying to them and breaking the law, American can likely expect the abuses to continue.

Andrew Shirley is a veteran speechwriter and AMAC Newsline columnist. His commentary can be found on X at @AA_Shirley.

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Veteran
Veteran
5 months ago

The only fix acceptable with FISA is to eliminate it! The premise sold to the public at its inception was borrowing from the fear created by terrorism, but the very concept it embraces violates the Constitution, and as it has shown during the Russia-Collusion hoax, and with the disclosures following the Snowden debacle, in the current state of our federal government “whatever can be abused, will be abused”. The only remedy is to go back and treat the Constitution, and especially the Bill of Rights as exactly what it is, the Supreme Law of the Land, meaning anything that even remotely violates any individual right of an American citizen is a no go at this station; that premise also applies to the “Patriot” Act. We were all sold a bill of goods that had nothing to do with the reality left wing globalist politicians had in mind after 911, time to fix this permanently, and work on the budget ate same time. We can no longer afford the surveillance and police state leftists in our government obviously so fervently desired. Time to end this slide into a Soviet/Nazi hybrid state.

PaulE
PaulE
5 months ago

The fact that none of the judges that signed off on all those FISA requests, that the DOJ, FBI and intelligence agencies shoved in front of them concerning the bogus narratives that involved President Trump, sitting Senators and hundreds of thousands of civilians for what have been shown to be politically motivated attacks on anyone the left deemed a threat to the status quo, indicates that NO ONE should expect the judges that sit on the FISA Courts have either a spine or are willing to stand up for the rule of law. Have any of these FISA judges come forward and demanded that the parties that carried out this politically motivated activity be arrested and prosecuted for their actions? No. As such, anyone hoping for any judicial pushback in this area needs to take off the rose-colored glasses. In any event, I expect when and if this legislation reaches Biden’s desk, those that control what Biden does will have him quickly veto the bill.

George
George
5 months ago

So, based on our current judicial system, nothing will be fixed. Awesome!

Jackie
Jackie
5 months ago

Too many judges these days think it’s perfectly okay to bring their agenda to the bench!!! That’s not what a judge is supposed to do!! But in Trump’s trials we see a lot of their agendized ruling!!! Our justice system (among many others) is broken!! I don’t know if there is any fixing it!! The CIA and the FBI can’t be trusted along with a goodly amount of DAs in the country since they are funded by Soros!!! Judges, heck, even Presidents, can be criminals and we can’t let criminal get away with this crap!!!

Lawrence Greenberg
Lawrence Greenberg
5 months ago

“But such reforms will likely fail to do much to protect Americans’ privacy unless the FISA Courts stop allowing themselves to be lied to and fulfill their constitutional duty to the American people.”
The judges must also ensure that those who lie and abuse the law go to jail for their efforts or no so-called “reform” will mean a thing.

Rhonda
Rhonda
5 months ago

Pardon my sarcasm, but in my opinion, when you have the amount of corruption in government that we have, changes in laws will not stop a corrupt government from doing what they decide is “in our bests interests.” Even if Biden signed the bill into law. We must remove the corruption from our government. I know…easier said than done.

GTPatriot
GTPatriot
5 months ago

The abuse by the FISA court against Donald Trump didn’t happen because the Dim lawyers lied to the court (which they did) but because the court chose to accept the Dims claims as true and did not seek to confirm the 4 false filings from the Dims thus allowing the Russia hoax to continue.. Our problem is that these FISA judges are not in jail. This will happen again and again as long as no one is punished. The law in DC is constantly ignored since everyone there knows there is no retribution

John Beach
John Beach
5 months ago

“In order to determine what constitutes a legitimate reason to surveil someone,”…..
Long before there was the “FISA” court, there was the Department of Defense which operated on the basis of “need to know.” That “need to know” presumed that hostile nations were a reality and that those which were an avowed threat to the free world were a reason for intelligence information concerning their offensive capabilities, particularly, military. Consequently, the existence of the armed forces predating the existence of the FISA court, and seen as a justification to survive, not merely litigate, targets were determined, often by the operator of a radio and, again, presuming the “need (emphasize NEED) to know,” the operator made judicious use of the information obtained, freely, over radio waves. The situation has changed, drastically, with the advent of the internet and digital communications, but the “need to know,” by someone for a specific reason, remains the same. Now, the notion that a judge must be consulted in order for the justification of the “need to know” to be determined, not based on a tactical or strategic capability of a foreign hostile, but rather on the propriety of the communications of American citizens, is ludicrous.

Robert Zuccaro
Robert Zuccaro
5 months ago

How ironic that the people who warned us of the probability of abuse of the Patriot Act are the ones abusing it today and how everything they accused Trump of doing they do now?

GMA
GMA
5 months ago

Too much corruption in current government to amend any issue.

Stephen Russell
Stephen Russell
5 months ago

Reform the FISA Judge system then
Make Public if warranted

joe cool
joe cool
14 days ago

Eliminate FISA! The fox is disquised as a sheep! Wake up, America!

Russ
Russ
5 months ago

Partisan judges are a huge part of America’s free fall. Judges making political verdicts rather than law affirming rulings is destroying our faith in our judiciary.

Claude
Claude
5 months ago

Eliminate FISA and arrest and jail the participants! Gitmo awaits the Shark Bait!

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