As our nation works its way through a divisive impeachment process, we are reminded that we live in a terribly partisan and contentious time. But both sides agree the federal government shouldn’t surveil, monitor, intercept, observe, or collect data on U.S. citizens without being held accountable.
This week we are introducing legislation to address deficiencies in the Foreign Intelligence Surveillance Act. That law grants several federal law enforcement agencies sweeping surveillance powers coupled with judicial and congressional oversight.
While we recognize the incredible challenges our intelligence and law enforcement agencies have in fighting the war on terror, we can’t deny there have been serious abuses of this sweeping power. Innocent people have been caught up. Constitutional rights have been abridged by certain Department of Justice officials and a far too compliant and unaccountable FISA court.
Reform is desperately needed. Now is the time to do it.
The authorities in Section 215 of the Patriot Act — legislation that authorizes significant surveillance authorities through the Foreign Intelligence Surveillance Court — expire on March 15, 2020. While we should reauthorize this important tool in the war on terror, our legislation implements five critical reforms necessary to conduct oversight.
First, we must address the one-sided nature of FISA Court proceedings. When the court considers surveillance of a U.S. person, that person is unrepresented, with no advocate to protect constitutional rights. To address this problem, our legislation requires an advocate be assigned to represent the interest of any American person who is the target of the FISA Court proceeding. The advocate provides a modicum of balance, allowing for at least an intermediary step in verifying that the accusations and evidence against the target are credible and accurate before intrusive surveillance can take place. Ideally, the judge should serve as the unbiased advocate for the U.S. person, but that doesn’t seem to occur.
Secondly, we need better disclosure. FISA courts were created for judicial oversight and accountability of covert surveillance activities. Congressional oversight of this process is a critical component of oversight. If there is no paper trail to document misconduct when the Justice Department abuses its power, Congress cannot conduct proper oversight. To rectify this, the bill requires the Justice Department to disclose in FISA warrant applications the veracity of the government’s claims. For example, if the government is relying on information from a foreign government, it must disclose to the court whether the information has been verified.
The third step is to require a transcript of all proceedings before the court. When one reviews the FISA application against Carter Page, for example, one cannot help but wonder if the judges asked the probing questions that such a sensitive case would require. After all, the Justice Department was asking to investigate the campaign of the person who was running for president. Because there is no transcript of the proceedings, we have no idea if the judges were appropriately inquisitive or skeptical of the information presented by the executive branch. Having a transcript of the proceedings will incentivize our FISA judges to be thorough in their proceedings.
In addition to transcripts, our legislation will require the Justice Department to maintain a record of all interactions with the court.
Finally, this legislation includes a requirement that whenever possible, the same judge is consistently responsible for reauthorizing surveillance warrants, helping to alleviate the concern that taking subsequent applications to different judges would enable the Justice Department to evade detection of duplicity. Though this information would not be required to be made available to the public, it must be available for congressional review.
Whether you are a Republican who believes the Obama administration abused its power when it initiated the investigation into Donald Trump’s presidential campaign, or a Democrat who fears that a future Republican president may do the same thing, we should stand together to reform a process that is clearly vulnerable to abuse.
Everyone can agree that weaponizing the surveillance authority granted by Congress is destructive to a healthy republic. It’s our hope that this proposed legislation will be met with bipartisan support.
Rep. Chris Stewart, a Republican, represents Utah’s second congressional district. Rep. Brad Wenstrup, a Republican, represents Ohio’s second congressional district. Both serve on the House Permanent Select Committee on Intelligence.
