…but no cigar. Senator Mike Lee (R, UT) has some thoughts on fixing the Foreign Intelligence Surveillance Act and its secret FISA Court. He’s on the right track, but his ideas fall short.
Lee wants to fix the FISA Court and tighten the parameters under which it operates. This Star Chamber cannot be fixed; it must be disbanded and the sections creating and empowering it must be rescinded from the FISA altogether.
There remains a need to guard against and to respond to espionage and interference efforts, and there remains a need for that response to involve investigations of American citizens who might be involved in those foreign assaults. There remains a need to keep many of our responses and investigations secret—for a time—so as not to tip off the targets of our investigations, whether they’re foreign or American.
Counterbalancing that is the even more crucial need to protect Americans’ individual liberties, including those being investigated. Especially the latter need protection; they’ve not been shown to have done anything wrong, but public suspicions would ruin the reputations of those actually innocent.
Our present Article III courts already are well-versed in handling secret warrants where necessary for domestic criminal investigations and for sealing records until it’s useful to release them or after sufficient time has passed that their release will not harm an ongoing investigation. FISA warrants can be handled here.
Many of Lee’s other ideas, with some adjustments, will work just fine in a sealed Article III court.
He wants to expand the role of an amicus in FISA warrant applications beyond warrants involving a novel or significant interpretation of law.
amicus should advocate for the privacy and civil liberties of the person targeted.
The role needs to be expanded further. This new amicus should overtly act as Devil’s advocate and seek to expose weaknesses in the warrant application with a view to getting the application denied. The target legitimately cannot be present, yet in most domestic criminal cases, the target has opportunities to contest the warrant, even if only after the fact. Such a contest needs to be present with FISA warrants, as well.
Lee wants relevant agencies to be required to provide all information in their possession as part of the application, including any exculpatory evidence. The FBI Director and the Attorney General should be required to certify that this has been done, and there needs to be heavy sanctions applied to the agents, the Director and the AG if this requirement has been found, after the warrant’s submittal, to have gone unsatisfied. It’s almost never enough merely to punish the workers directly responsible; too often they acted improperly because they were actively allowed to or because they were permitted to by too lax supervision.
It’s critical that we take these kinds of measures in response to the failures of and abuses from the present FISA setup so that this sort of violation of United States citizens never happen again.