Americans permit the federal government to create “tools” to assist in navigating the ever-changing, challenging modern world. The FISA Court was just such a “tool” established in 1978 for the purpose of considering applications requested by the US Government for approval of electronic surveillance, physical search and other investigative actions on US citizens. The secret (closed to the public), legal, judicial body is authorized to serve warrants of surveillance on American citizens without submitting to normal legal procedures. This “tool,” which arguably conflicts with strict interpretation of 4th Amendment rights but hopes to more effectively thwart terrorism, has now been misused by high ranking officials. Should the political leadership in partnership with the American people fail to hold abusers to account and restore integrity to the institution, the FISA court will cease to enjoy the integrity of an honorable federal institution but rather will have been proven vulnerable to use as a political weapon that may be directed at any citizen at any time.
Representative Chris Stewart (UT-R), among others, has grasped the risk of a court gone awry and thus in December 2019 introduced HR 5396: FISA Improvements Act in an effort to enhance fidelity to FISA applications and processes associated with the Foreign Intelligence Surveillance Court.
Restoration measures include:
1) designation of an amicus curiae (an uninvolved party appointed to a case for the purpose of advising the court on matters of law and policy) to assist the court in scrutinizing the initial application targeting a US citizen
2) the appointed amicus curiae shall review the application to determine if sufficient evidence exists to support probable cause and thus eligibility of the pursuant order. Any recommendation to proceed must be submitted to the court in writing
3) Application requests include supporting intelligence or disclosures of supporting material such as:
-origin of information
-means by which the Government obtained the information
-summary of steps taken to verify information
-what the Government has used relevant information in other judicial proceedings
-affirmation of the necessity for using such information to support probable cause
4) The Attorney General shall maintain written communications with the court to include identities of involved employees seeking the application and shall document a summary of oral communications with the court
In compliment to HR 5396, Representative Meadows (NC-R) submits HR4046 adding particular language scrutinizing if the “the identity of any person targeted for an order under this Act who is associated with a candidate for President of a major party.”
These reforms remain vulnerable to human error, or worse malice, but add accountability measures to the extent that communications are made transparent.
The FISA Court renewal is reintroduced for vote approximately every six months. Representative Stewart and Meadows have introduced two simple, concise house resolutions; steps to protect the future integrity of the organization. Should there be no reform, the FISA court may become a powerful tool of political tyranny nestled in American bureaucracy.
Option two, American agents, government and law enforcement determine they are capable of protecting citizens while upholding the 4th Amendment and due process, and the FISA court closes its doors.