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Analysis

After the IG Report: ‘Next Steps’ for Congress, DOJ, and the FISA Court

The Justice Department inspector general’s report is a damning indictment — and an opportunity for reform.

January 24, 2020

This piece was origin­ally published on Just Secur­ity.

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.

***

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.