After the IG Report: “Next Steps” for Congress, DOJ, and the FISA Court

[Just Security is publishing a series on concrete proposals for FISA reform. This series is in conjunction with a public event that we are organizing with the Reiss Center on Law and Security at NYU School of Law on Thursday, January 16, 2020 at noon. The speakers for the event are: Liza Goitein, Andrew McCabe, Julian Sanchez, and Andrew Weissmann. Their conversation will be moderated by Adam Serwer. The event is open to the public (RSVP here). This article by Liza Goitein is the first in the series. Stay tuned for articles by Weissmann, Sanchez, and others who may join the conversation with letters to the editor or articles.]

In the past, when civil liberties advocates talked about the need for Foreign Intelligence Surveillance Act (FISA) reform, they were usually talking about one of the warrantless collection authorities. Under Section 702 of FISA, for instance, the government warrantlessly collects the communications of foreign targets, but then searches through the data to find the “incidentally” collected communications of Americans. Under Section 215 of the Patriot Act (which amended FISA’s “business records” provision), the government may warrantlessly collect some extraordinarily sensitive information about Americans, including communications metadata and geolocation data. In these and other cases, the solution pressed by civil liberties advocates has been the imposition of a warrant requirement.

Small wonder, then, that there has been less discussion of FISA Title I. Title I is the high-water mark of civil liberties protection under FISA, because it requires the government to show probable cause to the FISA Court that the target of surveillance is a foreign power or agent of a foreign power. Under the statutory definition, an American who acts as an “agent of a foreign power” is generally engaged in espionage or other illegal activity. A FISA Title I order targeting an American thus looks very much like a warrant in terms of the standard required to obtain one.

The report released by the Department of Justice’s Inspector General in December, however, suggests that Title I’s warrant requirement isn’t providing nearly the level of protection that it should. The report identified 17 significant problems—including inaccuracies, exaggerations, and omissions—in the applications the Department of Justice submitted to the FISA Court to conduct surveillance of former Trump campaign aide Carter Page. Moreover, the Inspector General found no evidence of political bias or any other special circumstances that would explain the problems. If, indeed, the Page applications were treated like any other, that would indicate that corner-cutting and application-padding are par for the course in FISA applications. (The Inspector General clearly shares this concern, and is now undertaking an investigation of Title I applications more broadly.)

What is the right response to this problem? There are certainly no silver bullets, and it is worth considering a range of different approaches. In this article, I suggest three: (1) providing notice to targets of surveillance in more cases and in more meaningful ways; (2) investing research and resources into changing the culture among FISA personnel, including through enhanced oversight and accountability; and (3) recognizing the implications of the Inspector General’s report for other FISA authorities beyond Title I.

Identifying the sources of the problem

The fact that there are problems with the Title I process did not come as a major surprise to civil liberties advocates. There were already signs that FISA Title I orders were too easy to come by. In 2014, documents disclosed by Edward Snowden revealed that the U.S. government had obtained FISA orders to conduct surveillance of five prominent Muslim Americans, including a former Department of Homeland Security official, the executive director of the largest Muslim civil rights organization in the U.S., and a professor of international relations at Rutgers University. The notion that these respected community leaders were all agents of a foreign power is as implausible as it sounds. There was also evidence of the FBI misleading the FISA Court in its surveillance applications: In 2002, the FISA Court rebuked the FBI for including erroneous information in 75 applications about the sharing of FISA data with criminal investigators.

Although these particular incidents raise concerns about government officials acting on anti-Muslim bias and deliberately misleading the Court, the shading of facts displayed in the Page applications can easily be explained without reference to any nefarious motive. As I wrote in a Brennan Center blog post:

[O]nce an investigation is opened, all investigators are “biased” in favor of that investigation being successful. They will be inclined to highlight facts supporting their theory of the case and downplay those cutting against it — not just in their applications for warrants, but in their own minds (what Julian Sanchez identifies as “confirmation bias” on Just Security).

In ordinary criminal investigations, we rely on two factors to counteract this dynamic. The first is the likelihood of adversarial testing at some point down the line. If a criminal investigation is successful, it results in a prosecution, during which the defendant will have the opportunity to challenge any warrant that has been obtained. If the warrant is found to be invalid, the evidence obtained from it may be excluded and the entire case could fall apart. This prospect provides a substantial incentive to color within the lines when preparing applications for Title III surveillance (the criminal counterpart to FISA Title I).

The second factor—which has received much less attention—is the culture among criminal case agents and prosecutors. Among other things, disclosure of exculpatory evidence is a constitutional obligation in criminal prosecutions, and a violation of this obligation can result in the suppression of evidence. To be sure, there are far too many cases in which this disclosure requirement is ignored or not fully honored. But the principle is a familiar and integral part of every criminal proceeding, and is therefore likely to influence the culture in which law enforcement officials operate.

These factors are missing when it comes to FISA Title I applications. The prospect of adversarial testing is essentially non-existent: Foreign intelligence investigations rarely culminate in a criminal prosecution; when they do, the government has narrowly interpreted its statutory obligation to notify the defendant of FISA surveillance; and a provision in the statute effectively bars defendants or their counsel from viewing the application for a FISA order. Moreover, in the usual case where no criminal prosecution will ensue, the constitutional obligation to reveal exculpatory information is never triggered. These realities presumably affect the environment in which FISA applications are prepared—something we will have much better insight into once the IG’s investigation into Title I applications is completed. That said, we should not wait until then to respond.

Response #1: Creating adversarial testing through notice

One obvious potential solution is to inject some adversariality into the FISA Title I process. To that end, some observers have called for participation of amici in some or all Title I application proceedings. Under this proposal, the panel of pre-cleared amici established by the 2015 USA FREEDOM Act to help the court consider “novel and significant interpretation[s] of the law” would be deployed to review Title I applications and highlight any problems therein.

This is the right idea, but the wrong adversary. Not a single one of the errors the Inspector General found in the Page applications would have been evident to an amicus on the face of the documents. Without access to the full investigative file and the ability to interview officials on the case—which no amicus would have—such mistakes would remain hidden. The target of surveillance, by contrast, is in a unique position to identify factual errors in a FISA application, as the facts generally relate to the target’s own actions. Proposals to increase adversariality are thus better focused on providing meaningful notice to the targets of surveillance in a broader range of cases. (That’s not to say that amici shouldn’t be involved in any Title I application proceedings. For instance, in cases where the underlying investigation implicates core First Amendment activity, they could play a key role in highlighting civil liberties concerns.)

Broader and better notice to surveillance targets would involve three components, all of which should be put in place by Congress. First, when a foreign intelligence investigation is closed, notice of the surveillance should be provided to targets who are U.S. persons (and who therefore have constitutional rights at stake). This requirement would strike a balance between the current FISA Title I framework, under which targets are not entitled to receive any notice outside the context of (rare) criminal proceedings, and the Title III framework, under which the targets of surveillance in criminal investigations must receive notice within 90 days of the termination of surveillance, even if the investigation itself is ongoing.

Second, for those foreign intelligence investigations that do result in criminal proceedings, Congress should clarify the statutory requirement to notify the defendant of any evidence “obtained or derived from” FISA surveillance. In the past, the Department of Justice evaded this obligation by taking a narrow view of the phrase “derived from;” while it changed its policy in 2013, it has refused to disclose documents setting forth its current interpretation. Congress should therefore amend FISA to ensure that the Department’s reading is not unduly cramped. As I testified before the Senate Judiciary Committee in November 2019:

Congress should clarify that evidence is “derived from” Section 215 collection when the evidence would not have been obtained but for the use of Section 215. In applying this standard, the government should not be allowed to evade the notification requirement by claiming that the evidence would inevitably have been discovered through other means. These parameters are necessary to prevent the well-documented practice of “parallel construction,” wherein the government avoids disclosing particular surveillance practices by recreating the evidence using other techniques or authorities.

Third, Congress should amend the provision of FISA that prohibits courts from granting defendants access to FISA application materials unless such disclosure “is necessary to make an accurate determination of the legality of surveillance.” More than one federal judge has observed that this creates a Catch 22: The judge cannot assess the value of the defendant’s participation without knowing what errors the defendant alone might be able to identify, yet the judge cannot know this information without providing the defendant with access to the materials. A much better approach would be to permit access to the materials or the information within them under the terms of the Classified Information Procedures Act (CIPA), which provides a range of options for the protection of classified information in criminal cases.

Response #2: Changing the culture

Changing the culture among those officials who are responsible for FISA applications is a much more difficult task. Organizational culture is notoriously difficult to change. Those who study the problem, however, note the importance of connecting culture to accountability. In the short term, at least, the Department of Justice should significantly ramp up oversight, both during and after the preparation of the application. Supervisors and attorneys in both the FBI and the National Security Division should be more heavily involved in the application process from the outset. (A measure along these lines is already being implemented: According to an affidavit filed with the FISA Court on Friday, the FBI Director will require attorney-assisted accuracy reviews for FISA Title I applications that target U.S. persons between January 13 and February 14.) After the Inspector General concludes his current review of Title I applications, he should continue to review randomly selected Title I applications on an annual basis. With respect to particularly sensitive categories of investigations, these enhanced oversight measures should remain in place permanently.

Better oversight will enable—and must be tied to—accountability. According to the FBI Director’s recent affidavit, case agents will be required to attest that all known facts in the target’s favor have been disclosed. But the affidavit makes no mention of any consequences for case agents who nonetheless fail to disclose such information. If it is determined (through an Inspector General review or otherwise) that an agent has deliberately, recklessly, or negligently omitted relevant facts, there should be mandatory administrative penalties. Agents should be made aware of these, and they should be strictly enforced.

In addition, if the Inspector General’s current review of Title I applications confirms that agency culture is a significant issue, an independent task force should be created to study the problem and develop recommendations to bring about meaningful, lasting change. The members of this task force should include experts in organizational culture, former law enforcement officials with experience in oversight (such as former Inspectors General), and others with relevant expertise. It might be useful for this task force to examine the environment in which criminal investigators and prosecutors work—including the training they receive, the oversight and accountability structures in place, and any other relevant aspects—to see whether there are lessons or models (either positive or negative) that could inform the task force’s recommendations.

Response #3: Looking beyond Title I

Finally, it would be a mistake to view the problems with Title I’s operation in isolation. If FISA personnel are cutting corners when providing information for the FISA Court to review, they are unlikely to be more careful when taking actions the Court will never see—such as determining whether a U.S. person query is “reasonably likely” to return foreign intelligence or evidence of a crime, or deciding whether a communication should be purged because it does not contain foreign intelligence information. And yet, as the FISA Court has made clear, such post-collection limitations on accessing and retaining data are essential to the constitutionality of the underlying warrantless collection programs. These limitations are also central to Congress’s policy calculus in granting intelligence agencies extensive authority to collect Americans’ information.

A string of FISA Court opinions has already revealed a pattern of FBI non-compliance with the minimization and querying rules for FISA Section 702 surveillance. The Inspector General’s recent report should be viewed as an extension of these findings. Taken together, they mandate a change in approach. Congress and the FISA Court must stop relying on the mere existence of agency procedures and oversight measures — however extensive those might appear — to justify the approval of foreign intelligence surveillance authorities that pose significant risks to Americans’ privacy.

More concretely, Congress should apply this lesson when three FISA authorities—Section 215 of the USA PATRIOT Act, the FISA roving wiretap provision, and the “lone wolf” provision—come up for reauthorization in mid-March. Legislators should narrow the scope of Section 215 collection, which currently allows the government to obtain some of the most sensitive information about Americans (other than communications content) with a mere showing of “relevance.” Congress should also take this opportunity to address other FISA authorities that are not expiring, including Title I.

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The Inspector General’s report is a damning indictment. Thanks to the endlessly bizarre politics of the day, it is also an opportunity. Arguably, we are in another “Snowden moment” in which real surveillance reform is actually possible. The recommendations above, in my view, should be an important part of the reform discussion.

Image: Justice Department Inspector General Michael Horowitz testifies about the Inspector General’s report on alleged abuses of the Foreign Intelligence Surveillance Act (FISA) during a Senate Judiciary Committee hearing on Capitol Hill in Washington, DC, December 11, 2019. (Photo by SAUL LOEB/AFP via Getty Images)

 

About the Author(s)

Elizabeth Goitein

Co-Director of the Liberty & National Security Program at the Brennan Center for Justice, Former Counsel to Sen. Russ Feingold Former Trial Attorney in the Federal Programs Branch of the Civil Division of the Department of Justice You can follow her on Twitter (@LizaGoitein).