The shocking revelations in the Department of Justice inspector general’s report of December 9, 2019 about how the FBI investigated and electronically surveilled four American citizens associated with the 2016 Republican presidential campaign demonstrate that reform is urgently needed.
These revelations included that an FBI lawyer doctored a document used to support a warrant application under the Foreign Intelligence Surveillance Act (FISA) and that exculpatory evidence was withheld from the Foreign Intelligence Surveillance Court (FISC). While some will call for abolishing FISA, it remains essential to protect Americans from terrorism. The true task is to reform the processes of FISA investigations to also ensure Americans’ civil liberties.
The causes of this abuse of the government’s surveillance powers are varied and multi-layered, but on examination a common theme emerges: not enough oversight by accountable parties is built into the system. To begin the process of reform, the FISC this week ordered the FBI to advise the court of what steps FBI will take to ensure these kinds of abuses are not repeated.
Reform must extend further. A variety of reforms may be advisable but, at a minimum, the following seven need to be implemented.
1. No Investigating Candidates Without DOJ Approval
First, the Department of Justice (DOJ) should immediately implement a requirement that the FBI cannot commence an investigation, or at a minimum cannot initiate certain investigative techniques, into candidates for federally elected or state-wide public offices without first obtaining the approval of the DOJ.
It is astonishing, as Inspector General (IG) Horowitz found, that neither DOJ nor FBI had such a policy in place, especially as current DOJ policy requires consultation and oversight with DOJ before FBI can use certain investigative tools against members of the media and defense attorneys.
2. Overhaul the Verification Process
Second, FBI’s verification process for FISA warrants must be overhauled. IG Horowitz also found that the FBI interprets its “Woods” process not to require verification of the facts alleged in a FISA warrant application, but only that FBI must “verify” that it was told those facts by a source. This is a jaw-dropping interpretation for verification of the contents of any court filing, much less a filing in the secret surveillance court.
The rules for ordinary civil cases in local courts require that lawyers submitting pleadings have evidentiary support for the factual assertions in their filings. It is preposterous that FBI procedures call for less support than this in an application to the surveillance court.
The verification procedure must be revised to require that the FBI verify the facts it presents to the FISC. Facts that have not been verified or are inherently difficult to verify should be flagged so the court can weigh them with appropriate caution.
3. Strengthen Civil Liberties Protections
Third, Congress needs to strengthen the civil liberties protections in the FISA statute to require that FISA warrants may only be obtained on U.S. persons upon a showing that the person is both the agent of a foreign power and in that capacity is engaged in conduct that violates U.S. law. Although a number of persons familiar with the FISA process have long stated that both of these elements are already required for a FISA warrant on a U.S. person, IG Horowitz’s report and the FISC’s recent order call that interpretation into question.
The Horowitz report expressly noted that no “nexus” to criminal activity is required to obtain a FISA warrant on a U.S. person. The FISC’s order similarly does not state that proof of criminal activity is required—only that a FISA warrant cannot be ordered on a U.S. person solely based on activity protected by the First Amendment.
This understanding of the governing standard is very troubling. It stems from overly broad language in the FISA statute, which requires only probable cause to believe that the U.S. person is engaged in activities that involve or “may involve” criminal activity. This permits issuing a FISA warrant to surveil a U.S. person merely on the suspicion that he “might” be involved in criminal activity in the opinion of an FBI agent.
Congress should revise the statute to clearly require probable cause to believe that a U.S. person is engaged in illegal activity before a FISA warrant can issue.
4. Require Better Reporting to Congress
Fourth, Congress should also—at a minimum—beef up the reporting that the FISC must submit to it. Presently, although the FISC reports to Congress yearly on how many FISA warrants are applied for, granted, denied, etc., there is no requirement that the FISC report how many of these warrants are on U.S. persons and how long the surveillance has been authorized against each U.S. person. Adding these reporting requirements particular to U.S. persons will help Congress focus its attention on how the FISC is operating with respect to Americans’ civil liberties.
Further, Congress should require the DOJ inspector general to conduct reviews of the FISA applications submitted on U.S. persons every two years and provide a report and any recommendations for reform to the attorney general and to Congress. IG Horowitz has demonstrated that the inspector general can and will conduct a meaningful, independent review of the FISA application process. The DOJ inspector general is best situated to conduct this type of review given his or her ability to access the relevant documents and interview the relevant personnel.
5. Require Disclosures of Exculpatory Evidence
Fifth, the FISC should revise its rules of procedure to require that any exculpatory evidence (evidence that tends to contradict or undermine the allegations that support the warrant application) in the possession of the requesting agency be included in the warrant application.
This requirement is not specifically stated in the FISA statute or the FISC’s rules of procedure. However, the FISA statute expressly empowers the FISC to create rules of procedure and states that the FISC “may require . . . such other information as may be necessary” to make a decision on a FISA warrant application.
The court’s current Rule 13, which requires correction of a “misstatement or omission of material fact” is inadequate to this task. That language permits an interpretation that the only “material” facts are those that support granting the application and therefore exculpatory facts are not contemplated within the meaning of omitted facts.
This interpretation may seem strained to the average observer but, in criminal cases, the law is that “exculpatory evidence is not required to be included in a warrant application or before a grand jury.” That rule of practice may make sense in the criminal process, where eventually the warrant materials will be provided to the defense attorney for evaluation and challenge and there will be a public trial.
But in the context of the secret surveillance court, there is no such second step involving scrutiny of what was done and affording the target the opportunity to introduce exculpatory evidence on his behalf. Instead, the warrant process itself is likely the only due process a U.S. person is ever going to receive. Thus, omitting a requirement to disclose exculpatory evidence in FISA warrant applications involving U.S. persons simply contributes to the potential for abuse of civil liberties.
6. Develop Discipline for Abusive Officials
Sixth, the appalling revelation that an FBI lawyer doctored an email that was part of the factual support for a FISA warrant makes it clear that the FISC also needs a rule enabling it to discipline lawyers who appear before it and any government officials who participate in its process.
At present, the court has no such rule or disciplinary procedure. The court can determine the content of this rule. Even a rule merely stating that a referral will be made to appropriate disciplinary authorities in the event the court uncovers possible misconduct would be an improvement over the current situation.
7. Institute Defenders of the Accused’s Rights
Seventh, a more robust approach to civil liberties is needed at the FISC and at DOJ concerning FISA warrant applications on U.S. persons. Congress was aware of the need to build civil liberties protections into the FISA process when it enacted the FISA regime. However, the existing mechanisms are clearly not strong enough or are underused.
The FISA statute already provides that the FISC can appoint “amicus curiae” (a friend to the court) to assist the court in a particular application or to advise it on technical and legal issues generally. Congress even included language suggesting that the Privacy and Civil Liberties Oversight Board, created in the wake of 9/11, would be a resource for recommending amici.
The amicus mechanism should be used by the FISC in two new ways. First, the FISC should appoint an amicus attorney for every warrant application on a U.S. person (which is a fraction of the total) and task that attorney with identifying any shortcomings in the application.
Second, the FISC should appoint three persons as amici to serve (on a rotating basis) as a permanent committee to advise it concerning civil liberties issues and constitute an avenue for bringing civil liberties issues to the court. The original purpose of the amicus curiae was expressly to protect civil liberties and the court should solidify that role.
In addition, Congress should also create a FISA ombudsman in the National Security Division at DOJ to co-ordinate with these FISC amici and assist them in verifying or obtaining relevant information to be provided to the FISC. An OIG review is important, but it necessarily provides only a backward-looking assessment. An ombudsman can provide a contemporaneous check to potentially head off civil liberties violations.
It is a bit unusual to have a “devil’s advocate” of this sort in the DOJ, but the need for effective measures to balance against the current one-sided FISA process to protect the civil liberties of Americans is now abundantly clear. All three branches of government are responsible for safeguarding these important rights, and there is no reason they cannot work in harmony within the FISA process to do so.
Reform measures work best when they are effective, practical, and promptly implemented. I submit that these seven proposals achieve those objectives and should be taken up now as a pressing matter for our government and citizenry.