Surveillance Court to the FBI: You Have Some Explaining to Do

The Foreign Intelligence Surveillance Court, the normally-secretive federal court based in Washington, D.C. that oversees much of the nation’s foreign intelligence surveillance programs, took an unusual step yesterday: it issued a public order chastising the FBI for its handling of the applications submitted to conduct surveillance of Carter Page, a former adviser to the Trump Campaign. 

The FISC gave the FBI less than a month to report “what it has done, and plans to do, to ensure” that future surveillance applications “accurately and completely reflect[]” the facts the FISC needs to evaluate whether surveillance should be authorized. The FISC’s unusual public filing comes on the heels of the Department of Justice’s Inspector General report, released earlier this month, which reported a number of significant problems with the Page surveillance applications. The IG found that there were omissions and misstatements in the FBI’s applications to conduct surveillance­—inaccuracies that went uncorrected, despite three subsequent renewals of the FBI’s surveillance order. In light of the problems with the Page application, the IG indicated it would conduct a more comprehensive review of FBI applications to the FISC. 

Of course, the fact that a federal agency provided the FISC with incomplete, incorrect, or affirmatively misleading information about federal surveillance practices should come as no surprise—to the FISC, or to anyone else. Over the past twenty years, federal agencies have repeatedly misled the FISC about the nature and scope of FISA surveillance. For example, in one opinion from 2009, a FISC judge recounted how the NSA had “repeatedly submitt[ed] inaccurate descriptions” of the way the NSA was conducting surveillance. In another opinion from 2011, another FISC judge wrote that he was “troubled” by the government’s “substantial misrepresentations regarding the scope of a major collection program”— the “third instance in less than three years” of the government misleading the FISC about a significant aspect of the government’s surveillance programs.  

We’ve long complained about one-sided and secretive FISA surveillance. For too long, the process trafficked in secrecy and the misguided belief that the government would be forthcoming with the federal judges that sit on the surveillance court. We’ve been successful in enacting some incremental reform to make the process more transparent and to counterbalance the government’s monopoly on the views presented to the FISC. But, no matter your view of the current politically charged debate about the propriety of the surveillance of Carter Page, it’s clear from the IG report that the FISA process remains broken and in need of serious reform.

Another point about the Page-FISA application is worth emphasizing: no FISA application has ever received the amount of public scrutiny this application has received. In fact, in the statute’s forty-year history and the tens of thousands of applications the FISC has approved, only a handful have ever previously been released (and those applications typically related to the authorization of some type of bulk surveillance). Yet, over the past forty years, countless numbers of people have been deprived of their liberty—and sentenced to lengthy prison sentences—without the benefit of reviewing the FBI’s application to the FISC to conduct the surveillance that ultimately led them to prison. As we’ve argued in court before, that type of secrecy turns the rights of a criminal defendant and fundamental notions of due process upside down.    

It’s time to fix FISA. The Carter Page surveillance has brought new attention to an old problem. But it’s up to Congress now to fix it. We join our friends at the ACLU in calling on Congress to enact serious meaningful reform to the statute—reforms that will benefit the entire public, not just those politically fortunate to capture Congress’s attention.