[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 Andrew Weissmann is the second in the series. Read Goitein’s article, and stay tuned for an article by Sanchez, and others who may join the conversation with letters to the editor or articles.]
In December, the Inspector General of the Justice Department issued a report that revealed significant issues in the Carter Page FISA process (including the initial application and several supplemental extension applications). The report made several helpful recommendations to the Department of Justice, and sensibly announced a follow-on review of the FISA process to determine the extent to which its findings were emblematic of problems in the FISA process or aberrational. The Department has already committed to implementing these and other additional measures to beef up its processes for FISAs and other national security tools. Equally understandably, the FISC (the Court that oversees the FISA process) issued an order seeking more details about the Department’s plans to assure accuracy in FISAs — generally, beyond the Carter Page FISA — and recently appointed a seasoned and thoughtful former National Security Division head to provide his assessment of the proposed reforms outlined by the Department.
This short article takes no issue with any of this; the proposed reforms are sensible, as far as they go. This article offers one additional measure that is different in kind as it gets at an issue that none of the Department or IG reforms sufficiently addresses, and without which I fear none of the reforms will have a sufficient mechanism to assure that they are being implemented effectively and consistently. Although the IG has not issued its announced additional review of the FISA process, there is no reason to await that report before implementing the modest reform suggested here (indeed, the Department recognizes already the current need for the reforms outlined in the IG report). The second IG review could take years to complete and there is sufficient data to justify taking additional precautions to protect the rights of FISA targets and to assure accuracy and completeness in FISA applications.
To that end, the FISC should expand the scope of the amicus counsel program.
The Existing Amicus System
The current program was implemented after the Snowden leaks in the summer of 2013. As FBI General Counsel, I and other Intelligence Community General Counsels welcomed the amicus program at the time. Prior to that, the FISC had the ability to appoint an amicus in an individual case and the government also had the obligation to flag novel issues in any application. Neither was frequently used, and the amicus process was cumbersome as it required obtaining clearances on a case-by-case basis. The new system created a panel of amicus experts with pre-approved clearances to provide, as called on by the Court, their views on a novel FISA issue. Excellent panelists were then appointed. The system sought to provide for additional accuracy in the process and additional assurances to the public of increased scrutiny of novel issues. The new process, however, requires the Court to agree that an amicus would be beneficial in its review of a FISA application. And it remains unclear how often they are called to provide their advice, or if they have sought to be involved in matters only to have the Court decline to hear them. Presumably, they were not asked to opine on the Page FISA applications at the time, or we would have learned this from the IG report, a supposition that if correct counsels in favor of my proposal.
An Interim Proposal
My proposed reform would permit a member of the court-approved amicus counsel panel to see all FISA packages, and to weigh in on any it deemed appropriate. The Justice Department’s package would go to the Court and to the amicus at the same time, and amicus would have the ability to participate in the back-and-forth with the court staff on any revisions, and to submit briefs raising factual or legal issues in the FISA submission. This reform would be in line with Special Advocate systems in other democratic countries that are more robust than our current regime. To prevent this process from delaying emergency FISAs, the government could request permission from the Court to have it rule on the FISA application prior to the amicus completing its review, which would permit, if granted, the Court to sign the FISA so that it could go forward expeditiously, but it would be without prejudice to amicus counsel being heard on the FISA package after the fact.
For transparency, the Court would publish at set intervals (e.g. annually), the number of FISAs as to which it received input from amicus and the number of emergency FISAs as to which the review was received after-the fact.
For the Court, the government, and the amicus to assess the efficacy of this new review system, at the end of a set period of time (e.g. six months), the amicus would write a report to the Court and government as to any categories of FISAs that it believed did not need to be subject to this heightened process. Further, after the IG issues its second report on the FISA process, the Court, government and amicus can address the continued necessity for this expanded program and any appropriate changes to it.
Nothing about this proposal should be construed to cast aspersions as to the good faith (or suggest any bias, political or otherwise) of any of the participants in the current FISA process — not among the FBI agents, FBI lawyers, National Security Division lawyers, DAG and AG attorneys, or the Court judges or staff attorneys. It simply recognizes the value in our system of an effective adversarial process, a function that is simply not performed by the Court or the government.
Indeed, there is particular reason for such a mechanism in this arena. As the recent IG report noted, FISAs have never been later subject to a defense counsel’s review, as Title III warrants frequently are, something government officials are well aware of. The Court commendably is made up of Article III judges who are attuned to these kinds of concerns because their “day jobs” call on them routinely to assess criminal applications, including defense challenges based on the Supreme Court’s command in Brady and its progeny to disclose exculpatory and impeachment information. In contrast, that useful criminal law experience is not an essential part of the professional background of the myriad dedicated Justice Department officials involved in the FISA process. Routine exposure to the adversarial process and how it can help expose failures to thoroughly search for and disclose Brady-type material can be valuable. A truly robust amicus process in the FISC can assist in that function in the manner akin to that of defense counsel in Article III criminal cases.
To those who would assert that this proposed interim procedure would give greater review to FISAs than Title III and other ex parte criminal process (like search warrants), there are several responses. First, as noted, FISAs, unlike criminal process, are highly unlikely to ever be subject to the adversarial process. This is simply a case of apples and oranges. The need for such additional review in the FISA context exists to a far greater extent than in the criminal process, which is already designed to ferret out legal and factual issues. For data that supports the desirability of such adversarial review one can look to every successful defense challenge to a Title III or criminal search warrant (and potentially add to that number the “near miss” cases where courts denied a challenge because the government acted on good faith reliance on the issuance of the warrant). Indeed, the creation of the existing amicus panel was in recognition of this difference between the FISA and criminal contexts and the need to narrow the gap between the two. Second, the IG report has now found serious problems in connection with a FISA application process in connection with a FISA that many would have assumed would have received the most exacting scrutiny. We can’t afford to wait to adopt reforms that can guard against such failures. We can deal later, or separately, with what reforms make most sense in the criminal justice context if data show similar weakness in the ex parte criminal process.
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In sum, this proposed reform is one that the FISC could implement now on its own, without waiting for Congressional hearings, additional IG reports, or the Department of Justice’s promised internal reforms. It would provide a measure of increased outside scrutiny, as well as augment public and Congressional confidence in a national security tool that is vital to the safety and security of the American public, but must be wielded with scrupulous care.
Mr. Weissmann served as the General Counsel of the Federal Bureau of Investigation under Director Robert S. Mueller from 2011-2013. He is currently a Distinguished Senior Fellow at NYU School of Law.