Fourteen years ago, President George W. Bush signed the reauthorization of the USA Patriot Act. Originally passed in the aftermath of 9/11, the Patriot Act had been meant to facilitate greater communication between federal law enforcement and the intelligence community to defend against terrorism. The act also expanded the ability to use a secret court, the U.S. Foreign Intelligence Surveillance Court, to secure classified surveillance warrants against foreign spies inside the United States.
Most requests for such warrants are brought by the FBI or the National Security Agency. At the end of 2005, these Foreign Intelligence Surveillance Act warrant tools were set to expire and needed reauthorization. I was part of the team of people working in Congress to balance the need for these tools and proper safeguards and accountability to avoid their abuse. At the time, two towering legal figures were pushing Congress simply to reauthorize these tools with no additional safeguards. They were then-Deputy Attorney General James Comey and FBI Director Robert Mueller.
I was then chief counsel over crime and terrorism for the U.S. Senate Judiciary Committee, responsible for the reauthorization of powerful FISA warrants, including sections 215 (records and “tangible things”), 213 (“sneak and peek” warrants), and 206 (roving wiretaps) among others. Chairman Arlen Specter, a Pennsylvania Republican, and I attempted to balance intelligence gathering needs with stronger safeguards and more accountability. We were successful in the Senate with a remarkable unanimous vote.
In the House, however, the Justice Department — thanks to Comey’s and Mueller’s efforts — prevailed in preventing meaningful reforms. I was one of very few in the room when Comey represented that U.S. citizens need not worry about being surveilled and that internal safeguards were sufficient. Mueller would take a similar position, reassuring us that privacy concerns were overstated, and a “clean” reauthorization was vital.
At best, they were wrong. At worst, they deceived Congress and the public. Thanks to the work of the Office of Inspector General, we now know of substantial abuses of the FISA warrant process. This week, Congress will again be asked to reauthorize these same FISA tools. President Trump would be justified to demand, under threat of veto, that the mistakes of history do not repeat and that Congress make vital changes to FISA to ensure greater accountability.
First, there is no basis for reauthorizing Section 215 without meaningful changes. This section allows investigators to obtain a secret warrant requiring third parties, such as phone companies, internet providers, or other online platforms, to turn over any records “or tangible thing” if merely “relevant” to an investigation.
In 2005, many advocated for “probable cause” or other heightened standards to be the requisite standard for seeking such a warrant against a “known U.S. person.” Comey’s Justice Department and Mueller’s FBI fought hard against any higher standard, arguing that it would be higher than what they currently need to secure for records in drug investigations. This argument was and is a red herring. First, FISA warrants are truly secret warrants, so the record holder is prohibited from disclosing even the existence of the warrant. In the criminal context, the record holder, with few exceptions, can and often does give notice to the target of the warrant that they have provided records.
Second, in the criminal context, the Justice Department must reveal the warrant and the documents gathered in the course of the prosecution of the target. In the FISA world, however, the Justice Department and the FBI can indefinitely postpone revealing the warrant or its results. As such, raising the bar to a probable cause standard to secure such a powerful and secret warrant against a known U.S. person should be a bare minimum.
Truthfully, letting Section 215 expire and reverting back to pre-2005 language is preferable to straight reauthorization. The prior language, although it also did not require probable cause, at least required “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” This language is more protective of U.S. persons than the current language, which allows the government to show “reasonable grounds to believe that [the records sought] are relevant to a foreign intelligence … investigation.” Viewed properly, the current standard is no safeguard at all — amounting to a mere showing of “relevant” to whatever investigation they are pursuing.
The Justice Department and the FBI have argued that the current sections facing expiration are not the ones abused as outlined in the inspector general report, and so Congress should simply reauthorize. This is disingenuous, irresponsible, and dangerous. Congress is presently aware of the abuses and must fix them now — especially after having witnessed the use of FISA to target a presidential candidate. Often, the only legislative vehicle capable of including reforms to FISA rules is a reauthorization bill. Despite the protestations of the FBI and Justice, there are meaningful changes that could be made to FISA without compromising national security.
For example, Congress could require the FISC to appoint an amicus or citizen advocate to review any “sensitive investigative matter” involving activities of a public official, political candidate or campaign, political employees, or even the media. It could require anyone seeking a FISA warrant to provide “all” information, including exculpatory information, to the court. It could also end the Call Detail Records Program, which has overcollected data of U.S. persons for years. The intelligence community has already discontinued its use because of such abuses.
These simple reforms can go a long way toward ending a dark chapter of abuse of powerful surveillance tools against U.S. citizens. Congress has a narrow window, and this president a unique opportunity to instill greater confidence that such abuse will not happen to any future president or U.S. citizen. Our most powerful government tools should have the most safeguards and the greatest accountability.
Brett Tolman, a former counsel for the Senate Judiciary Committee, served as U.S. attorney for the District of Utah from 2006 to 2009.
