Civil Liberties Advocates To GOP: We Told You So On Reforming The FISA Court

Republicans defended the secretive FISA court, even after a 2013 National Security Agency leak. FBI surveillance of a Trump campaign aide changed that.

Top Republicans are calling for reforms to the Foreign Intelligence Surveillance Court after a Department of Justice inspector general report revealed problems with how the FBI obtained a secret warrant to surveil one of Donald Trump’s campaign aides in the early months of the 2016 investigation into Russian election meddling.

But privacy advocates who pressed for reforms to the secretive court after Edward Snowden’s 2013 leak of National Security Agency surveillance programs, which were improperly mining data on phone and electronic communications from millions of Americans, can’t help but be tickled over the GOP’s discovery that everything might not be strictly on the level with operations under the Foreign Intelligence Surveillance Act.

“I’ve heard of people having dramatic transformations in terms of interest, but even by Washington, D.C., standards, the fact that they’re newfound privacy crusaders seems like a stretch,” Sen. Ron Wyden (D-Ore.), one of the chief privacy advocates in Congress who opposed the NSA’s dragnet data collection, said Wednesday.

Sen. Ron Wyden (D-Ore.) says he questions the sincerity of some of the new defenders of privacy rights.
Sen. Ron Wyden (D-Ore.) says he questions the sincerity of some of the new defenders of privacy rights.
Kevin Lamarque / Reuters

“If they’re willing to join the reform effort, that’d be great,” deadpanned Sen. Jeff Merkley (D-Ore.), also a privacy crusader on Capitol Hill.

Support for the controversial Section 702 of FISA, which deals primarily with non-U.S. citizens but can involve communications of citizens, has historically been bipartisan. Republicans, however, have been the law’s most forceful advocates, arguing that it helps keep Americans safe amid the longstanding U.S. war on terrorism.

Congress passed legislation in 2015 phasing out the NSA’s bulk data collection programs (32 Republicans and no Democrats opposed the bill in the Senate). The measure included some modest reforms to the FISA court following years of warnings from civil libertarians, who said the entire system was dangerously flawed, lacked accountability and acted as a rubber stamp for U.S. law enforcement.

The Justice Department’s inspector general report, released Monday, found no evidence that the FBI’s decision to open an investigation into the Trump campaign’s connections to Russia in 2016 was influenced by political bias. However, the report raised issues with the FBI’s process for FISA applications, finding “serious performance failures” by FBI officials involved in FISA applications involving former Trump campaign official Carter Page. The report said that FBI attorneys failed to properly vet FISA applications to surveil Page, at one point even improperly altering potentially exculpatory information.

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.), one of Trump’s top allies on Capitol Hill, expressed alarm at the report.

“After your report, I have serious concerns about whether the FISA court can continue unless there is fundamental reform. After your report, I think we need to rewrite the rules of how you start a counterintelligence investigation and the checks and balances that we need,” Graham told DOJ inspector general Michael Horowitz during a Wednesday hearing about his report on the origins of the Russia investigation.

Other conservatives also questioned the entire FISA application process, suggesting government surveillance may have been improperly authorized on U.S. citizens in other instances as well.

Top FISA reform advocates said the report showed the system needed checks and balances to avoid the kind of mistakes the inspector general found.

“You need some kind of adversarial check and balance, someone to review exactly the kinds of misstatements that may have been made. The way to prevent errors in our judicial system is to have an adversarial check,” said Sen. Richard Blumenthal (D-Conn.), who, along with Wyden, helped introduced legislation in 2013 aiming to reform the FISA court.

But Blumenthal, who also serves on the Judiciary Committee and was present for Wednesday’s hearing, appeared skeptical when asked whether he expected a broader wave of bipartisan support for reforms to the FISA process.

“There was certainly very vehement and indignant comments by our Republican colleagues about how the system is broken and the culture is failing, but we’ll see whether they really mean what they say,” he said Wednesday.

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