In 2013, Democratic Senator Richard Blumenthal introduced legislation to reform the Foreign Intelligence Surveillance Act, the law that authorizes the FBI to undertake secret electronic surveillance of terror suspects and foreign spies.
Among other reforms, the bill proposed the creation of a special advocate to represent the interests of surveillance targets before a secret intelligence court in Washington.
But Blumenthal’s legislation never gained traction. While 18 Democrats co-sponsored it, not a single Republican signed on, Blumenthal said Wednesday during a Senate Judiciary Committee hearing on the Justice Department inspector general’s report about the FBI’s investigation of Donald Trump’s 2016 presidential campaign.
“Unfortunately, a great many of those proposed reforms did not become law,” Blumenthal said.
In the wake of the report’s release on Monday, Blumenthal has found plenty of unexpected company. Angry at the FBI’s alleged abuse of its authority to monitor former Trump campaign aide Carter Page, Republicans are clamoring the loudest for reform.
“I hate to lose the ability of the FISA court, but after your report, I have serious concerns about whether the FISA court can continue unless there is fundamental reform,” said Senator Lindsey Graham, the Republican chairman of the Judiciary Committee.
Well before the latest outcry over the Trump campaign investigation, government surveillance was the subject of controversy, fueled by the Edward Snowden revelations in 2013 that the National Security Agency had undertaken warrantless surveillance to collect data on millions of Americans in the wake of the 9/11 attacks.
In 2015, Congress enacted the USA Freedom Act, limiting law enforcement agencies’ ability to collect data and establishing certain civil liberties protections.
With several key provisions of FISA up for reauthorization in March, lawmakers are now pressing for additional safeguards against future abuse.
While the FBI has pledged to change the way it goes about applying for surveillance warrants, civil liberties groups such as the American Civil Liberties Union see the latest revelations by the inspector general as an opportunity for Congress to act.
“The IG found that there were a litany of inaccuracies and omissions in the initial Carter Page surveillance application and subsequent renewal applications,” Ronald Newman and Neema Singh Guliani of the ACLU wrote in a letter to the Senate Judiciary Committee, calling for legislation to enhance accountability, oversight and transparency in the FISA process.
“Even more, those problems went largely unchallenged by the Foreign Intelligence Surveillance Court — and would likely have never been revealed but for the significant attention this investigation has received by the IG and members of Congress,” they added.
FISA grew out of public outrage over domestic intelligence abuses in the 1970s. Enacted in 1978, the statute limited electronic surveillance of U.S. citizens to national security purposes.
A secret 11-member court was created to approve surveillance applications.
To obtain a warrant, the FBI and the NSA must prove to the court that the intended target of their surveillance is a “foreign power” or an “agent of a foreign power,” and that the surveillance is intended for intelligence-gathering purposes.
In the case of the Page surveillance warrants in 2016 and 2017, Inspector General Michael Horowitz uncovered a systematic failure that ran up and down the chain of command within the FBI and extended all the way to the U.S. Foreign Intelligence Surveillance Court.
To apply for a surveillance warrant against Page, the FBI used a largely discredited dossier of reports about Trump’s alleged ties to Russia, as well as the Trump campaign’s alleged ties. But the bureau failed to disclose to the court that Page worked for the CIA and had been approved to have “operational contact” with Russian intelligence agents.
In January 2017, when the FBI asked the court to renew the Page warrant, it withheld the fact that it had interviewed the source of the so-called Steele dossier, and that the source had denied making statements that the FBI used in its warrant application.
The inspector general told lawmakers he was “deeply concerned that so many basic and fundamental errors” were made during the Page FISA application process, but added that the problems were not “routine.”
Nevertheless, Republicans considered the report as evidence of rampant abuse. Graham said it underlined a “massive criminal conspiracy to defraud the FISA court.”
“You were able to uncover abuse of power I never believed would actually exist in 2019,” Graham told Horowitz.
Critics say the secretive FISA court effectively serves as a government rubber stamp, routinely approving upward of 97% of applications through a “one-sided” process that leaves little room for challenging the government’s evidence.
“In most cases, including Page’s, there is no entity within the FISA court charged with challenging government claims, or raising potential civil liberties concerns,” Guliani and Newman wrote in the IG report.
Even in criminal cases where the government brings charges with the help of FISA surveillance, defense attorneys are barred from challenging the accuracy of the government’s surveillance applications, they added.
To enhance accountability, the ACLU recommended that Congress require an impartial adviser charged with raising civil liberties concerns to attend sensitive FISA court cases such as the targeting of political campaigns.
In addition, the group wants criminal defendants to have the ability to review the government’s surveillance application against them, and targets of surveillance to receive notification after the monitoring.
The idea appears to be gaining traction in Congress.
A new bill introduced by two Republican members of the House of Representatives would require the appointment of a FISA court advocate and would require the Justice Department to disclose to the court whether the information used in its FISA application has been verified.
The FBI and the Justice Department are opposed to reforming the FISA court. Brad Wiegmann, a deputy assistant attorney general, told the Senate Judiciary Committee last month that FISA warrants already receive an “extraordinary” level of scrutiny from the court.
“I think the FISA court operates really well,” Wiegmann said.
In the wake of the IG report, FISA court reform has become a necessity, Graham said.
“To the FISA court, we’re looking to you to take corrective action,” Graham said. “If you take corrective action, that will give us some confidence that you should stick around. If you don’t, it’s going to be hurtful to the future of the court.”