When I served as attorney general of Iowa, I was humbled by the daily realization that my team and I were the last line of defense in protecting the innocent. This realization requires a continuous balance between the urgent need to stop bad actors from harming people, while adhering to constitutional safeguards that protect us all.
I am most proud of having written anti-stalking legislation that became a blueprint for such laws across the nation. This blueprint spread because it balanced the need to counter personal threats to women’s safety with the constitutional rights of suspects. When President Bill Clinton selected me to be the first head of the Department of Justice’s Office on Violence Against Women, I met many in both parties who deeply respected this need to protect the innocent within constitutional restraints.
Observing the current landscape in Washington, it seems some in federal law enforcement seem to have forgotten that the law is ultimately designed to protect innocent Americans, not target them. This is most obvious in the realm of electronic surveillance conducted under the authorities of the Foreign Intelligence Surveillance Act and the Patriot Act, written in the aftermath of the Sept. 11 terrorist attacks.
The poster child for FISA abuse emerged late last year when DOJ Inspector General Michael Horowitz detailed 17 errors in the FISA warrants of Carter Page, associated with the Trump presidential campaign. One such error included the deliberate alteration of a fact submitted to the FISA court in sworn testimony. The ACLU reacted with an impassioned letter to Sens. Lindsay Graham and Dianne Feinstein, who head the Senate Judiciary Committee.
“As the IG report shows, the secretive, one-sided nature of FISA proceedings before the FISA court allowed the errors within the Page application to accumulate and continue largely unchallenged,” the ACLU wrote. I join the ACLU in wondering if this was how the FBI and the secret FISA courts handled warrant applications sure to draw national scrutiny, what kind of sloppiness might be present in less prominent cases?
I also share the ACLU’s concern that even in instances in which individuals are criminally prosecuted with the aid of FISA surveillance, the government uses secrecy to thwart meaningful scrutiny. Defense attorneys are unable to challenge the accuracy of the government’s surveillance applications, as Horowitz did, because they have never been granted access to underlying FISA court applications and orders.
Such concerns over the governance of secret surveillance, secret laws, and secret courts are leading to an odd fellow coalition on Capitol Hill. The Progressive and Freedom caucuses are bringing together some of the most liberal and conservative House members to reform surveillance law and enforce the Constitution.
This coalition is currently focused on Section 215 of the Patriot Act, commonly known as the business records provision. Under this authority, the government holds that any information we give to a business (an online search through Google, video from a Ring doorbell camera, and even DNA test results from 23andMe) can be accessed by the government without the Fourth Amendment requirement for a probable cause warrant. All the FBI has to do is assert such information is somehow relevant to national security.
Congress now has a unique chance to bring these practices in line with the Fourth Amendment. The House passed a bill that was never subjected to markup or amendments. Predictably, this bill has only a few weak reforms, a sop to those with deep concerns over the potential for surveillance abuse. A rebellion against similar tactics in the Senate forced Majority Leader Mitch McConnell to allow for debate and amendments as soon as this week.
The intelligence community will surely seek reauthorization of Section 215 with little or no changes. They would even extend authority for the now-suspended call detail records program that illegally collected hundreds of millions of the public’s call records, even though this massive overcollection of our private information thwarted no terrorist plots.
The civil liberties coalition must push for the permanent suspension of this call detail records authority, lest it be revived. The coalition proposes criminal defendants be notified if information gathered under Section 215 is used against them. Liberals and conservatives are also advocating that Americans’ exercise of First Amendment rights should never be a cause for opening an investigation.
We especially need a more robust amicus curiae system for the FISA courts. These courts have rarely denied surveillance requests. By empowering independent legal experts to evaluate cases with constitutional implications, the FISA court would have a tool to more fairly judge warrant applications.
With reform, we can avoid an erosion of public trust that would jeopardize law enforcement. In federal surveillance, as with anti-stalking laws, we can protect the innocent while adhering to the Constitution that safeguards our freedoms.
Bonnie Campbell served as attorney general of Iowa from 1991 to 1995, and as director of the Office on Violence Against Women, 1995-2001.
