Proposed FISA Reforms Will Mean Nothing Unless Judges Do Their Job

Posted on Thursday, November 16, 2023
by Andrew Shirley

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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