Two recent orders by the Foreign Intelligence Surveillance Court highlight the need for an important but little-discussed reform that Congress should adopt before it reauthorizes three provisions of the Foreign Intelligence Surveillance Act that will expire on March 15.
One of those orders was by the new chief judge, James Boasberg, demanding further follow-up on the Department of Justice’s recent conclusion that at least two of the four ex parte orders authorizing surveillance of Carter Page lacked “sufficient predication to establish probable cause” — and were therefore issued in violation of FISA.
Boasberg’s order followed on the heels of a December order by his predecessor, Judge Rosemary Collyer, reacting furiously to revelations by Justice Department Inspector General Michael Horowitz that some in the FBI had misled her court in the same Page fiasco. Unfortunately, neither of these orders, or any other public statement by the court, acknowledges its own responsibility in this grotesquely unlawful spying on a U.S. citizen and, by extension, a major presidential campaign.
It’s not just that the court ignored the obvious problem with authorizing surveillance of a campaign. And it’s not just that the court then ignored evidence of FBI wrongdoing that had been widely discussed two years ago (before some of the Page warrants) and has since been verified by Horowitz.
The more fundamental problem is that none of the four Foreign Intelligence Surveillance Court judges involved in the Page warrants bothered to invoke a tool that Congress gave them in 2015 to detect and thus deter the kind of FBI wrongdoing revealed in the Horowitz report and the subsequent Justice Department responses. That tool is the ability to appoint government-paid privacy advocates with security clearances (known as “amici”) to ask the hard questions and advise the court on potential problems with agency requests. Yet, according to annual reports by the Administrative Office of the U.S. Courts, the Foreign Intelligence Surveillance Court has appointed amici in only 14 of the thousands of proceedings it has handled in the years since Congress gave it the authority to appoint amici.
This is a major problem, one that deserves Congress’s close attention as it considers FISA reform between now and March 15. Our entire Anglo American legal system is built on the premise that judges, to reach sound decisions, need to hear advocacy on both sides of any question before them. An ex parte proceeding, in which only one side presents evidence, is notoriously unreliable as a vehicle for getting at the truth and is therefore highly disfavored.
In FISA proceedings, of course, granting a target the right to receive notice and be represented by counsel would defeat the secrecy that is critical to any surveillance effort. So the amicus procedure is designed to replicate the operation of the adversary system to the fullest extent possible.
But would appointment of an amicus have made a difference in the Page situation? Based on our own court experience, we think it would have made all the difference, at least as to most of the 17 “errors and omissions” that Horowitz publicly identified.
Consider, for example, the most striking deception Horowitz reported — the decision by former FBI lawyer Kevin Clinesmith to doctor an email from the CIA. The original email acknowledged that Page had been a CIA asset, which helped explain and legitimize his Russian contacts. But, as Horowitz detailed, Clinesmith changed the email electronically so it would appear to convey the opposite message (i.e., that Page was not a CIA asset) then used that denial as evidence supporting the warrant.
Faced with the Page warrant application, a competent amicus likely would have contacted the CIA official to get more information — and in so doing, he or she would likely have discovered the deception. The amicus would then have brought that information to the court, which likely would have denied the application or (at very least) launched an additional inquiry that would have uncovered even more of the problems identified by Horowitz.
In either case, Page would not have been unlawfully surveilled, and future FBI dishonesty would have been deterred. Indeed, if the first Foreign Intelligence Surveillance Court judge assigned to the case had appointed an amicus at the outset, it is unlikely the FBI officials would have dared engage in the shenanigans Horowitz discovered.
Given what we now know from the Horowitz report and subsequent Justice Department revelations, Congress needs to require the court to appoint amici in any case that obviously implicates the First Amendment rights of U.S. citizens and other categories of sensitive cases. Proposals now circulating on Capitol Hill would do just that. We hope many of our nation’s representatives, Republicans and Democrats alike, will join the effort.
Such a reform of the Foreign Intelligence Surveillance Court process is essential to preserving the public credibility on which our entire intelligence system depends.
Bob Goodlatte is a former congressman from Virginia and chairman of the House Judiciary Committee. Gene Schaerr, a former associate counsel to President George H.W. Bush, is general counsel to the non-partisan Project for Privacy and Surveillance Accountability.
