The Foreign Intelligence Surveillance Court (“FISA Court”) was established in the late 1970s to correct abuses involving national security surveillance inside the United States. Of more than 35,000 FISA warrant requests during the FISA Court’s history, only about 500 have been modified and a dozen have been denied outright. Given the FISA Court’s permissive record, one must wonder why the Obama Administration engaged in such an extravagant and dishonest use of the FISA Court for political purposes, particularly after they condemned such practices by the Bush Administration in its attempt to surveil bona fide terrorists.
Because of the sensitive nature of its subject matter jurisdiction, the FISA Court’s proceedings are closed and its dockets are sealed. Due to the lack of either adversarial testing or public disclosure, the Department of Justice’s (“DoJ”) scrupulous observation of its heightened duty of candor and disclosure to the FISA Court is the only protection for Americans’ Fourth Amendment rights. Private attorneys in ex parte proceedings (a creditor seeking prejudgment attachment or a domestic violence victim seeking an injunction, to name two examples) owe a duty of utmost disclosure to a court, even when their submissions are subject to public scrutiny and adversarial review immediately upon service of the order initially procured ex parte. The DoJ’s ability to bring a multibillion dollar surveillance apparatus to bear on any target heightens, rather than diminishes, its duty of disclosure.
The FISA statute applies a retention period of five years for retention of “incidentally acquired” communications, presumably because that is a reasonable legislative estimate of the useful life of such information. Congress should amend the FISA statute to also require disclosure of FISA warrants and opinions after that time, unless the DoJ specifically shows that a longer seal is required in the particular circumstances of the investigation. Furthermore, the FISA statute should specifically require that the DoJ disclose any known exculpatory or impeachment evidence to the FISA Court before it issues any warrant that might impact an American citizen so that the FISA Court can properly determine the actual need for surveillance. These reforms will ensure that any overreaching is detected and corrected without unduly exposing any “sources and methods.” It would appear though, that as Rep. DeSantis (R-FL) has said, the DoJ’s “sources” are Democratic Party hacks and its “methods” are leaks and unauthorized disclosure. The revelations in the FISA memo underscore the longstanding need for FISA Court reform.