One outcome of Special Counsel John Durham’s testimony in front of the House Judiciary Committee is an apparently re-energized, at least by many in the Republican caucus and a few Progressive-Democrats, to reform The Foreign Intelligence Surveillance Act. That’s all to the good, to the extent any serious reform actually occurs.
The most important reform of this Act, though, is the complete elimination of the secret Star Chamber that is the FISA Court. Federal Judges have long known how to seal records that legitimately don’t belong in the public’s eye, at least in the moment. The court’s proceedings, though, are, and should be, public.
So it must be for any sort of FISA-related court. Relevant records can be sealed—primarily the warrants FBI agents are seeking, which process is old hat for any legitimate Article III court, as well as State courts—until the warrants are executed. But this FBI has demonstrated that it will openly lie to the FISA court and that it will fabricate evidence in order to get their warrants. That’s on the FBI. What’s on the FISA court judges is their blithe acceptance of further FBI blandishments after the FBI had been caught out in its dishonesty. That makes the FISA court complicit in the dishonesty.
That badly wants the elimination of the secret court. There is no alternative; there must be no secret courts in the United States.