Secret FISA court's future in jeopardy, lawmakers say

GOP Rep. Scott Perry: Not even '50-50 chance' surveillance court survives without reform

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Rep. Scott Perry
Rep. Scott Perry (R-Pa.), left, favors elimination of FISA court
(Caroline Brehman, Getty Images)
Last Updated:
February 29, 2020 - 12:39pm

Amid scandal and abuse, reforming the FISA surveillance system will not be easy. But without systemic reform, the secret court at the heart of the government’s surveillance authority may not even survive.

“I don’t even give [the secret FISA Court] a 50-50 chance” of survival in its present form, Rep. Scott Perry (R-Pa.) told Just The News.

Many Democrats and Republicans on Capitol Hill now say they are in agreement that something transformative must be done to fix shortcomings in the programs that allow government spying on U.S. citizens. But agreement on details is proving elusive.(I discuss why fixing FISA is so hard with a former National Security Agency "secret squirrel" on the latest episode of The Sharyl Attkisson Podcast

Add to the mix that Trump Attorney General William Barr is pressing Congress to authorize an extension of the government’s authority just as it is without reforms.

The office of Sen. Ron Wyden (D-Ore.) told Just The News that Wyden “has long fought for fundamental reforms to surveillance programs to better protect Americans’ rights. [Wyden] believes there should be more transparency … and better protections for due process.”

Rep. Perry says he is among a significant group in Congress that favors eliminating the FISA court altogether

“There’s nothing that can be done to save it legitimately,” he said. “It has to be shut down.”

A top official on Capitol Hill who asked not to be identified by name said there is “high double digit” support among Democrats for such a measure and “very significant bipartisan support for reforms or elimination.”

House Judiciary Chairman Jerry Nadler (D-N.Y.) is promoting a bill that would continue FISA with some changes. But Rep. Steve Scalise (R-Louisiana) said today that it does not include enough reforms and penalties.

The government’s authority to secretly monitor Americans largely comes from the Foreign Intelligence Surveillance Act (FISA), enacted in 1978. It created a special court that authorizes the sensitive and sometimes controversial practice of government wiretaps of American citizens on U.S. soil.

For years, there has been tension between privacy advocates, who say government intrusion into the privacy of Americans must be kept in careful check, and those who say that the need to secretly monitor the communications of some targeted citizens is a matter of national security.

Longstanding controversies have been stoked with the recent determination that at least two FBI wiretaps against former Trump campaign foreign policy adviser Carter Page were improperly obtained. The Justice Department Inspector General found a long list of what he testified were inexplicable and egregious abuses by Department of Justice and FBI officials in the Page wiretaps. That included an FBI attorney allegedly doctoring a document that was presented to the court, an alteration which hid the fact that Page, far from being the Russian agent the government portrayed, was actually a longtime CIA informant supplying the agency with intelligence about Russia.

The Justice Department has now said the questioned wiretaps were “invalid.”

“Obviously, we counted on the government to do the right thing with this incredibly powerful tool,” Perry said. “And it’s just as obvious that the government has proven just as incapable of safeguarding our liberties.”

Perry also struck at the FISA Court judges, calling them “part of the problem.”

A key Republican voice in the Senate, South Carolina Sen. Lindsey Graham says he agrees with the need for reform but not the idea that the FISA Court should be thrown out. As head of the Judiciary Committee, Graham says a “functioning, absolutely capable FISA Court” is needed to play a role in preventing terrorism.

Graham has some work to do persuading his colleagues.

“There is a growing consensus on Capitol Hill to let the FISA reauthorization lapse,” Rep. Mark Meadows (R-N.C.) told Just The News. “The process, while heralded by [the Department of Justice] and the intelligence community has had mixed results and will certainly not gain congressional support without major reforms.”

“Lots of Democrats willing to help,” Meadows added.

This is not the first time there have been major clashes over the issue of government surveillance and privacy. Several years ago, sources tell Just The News, there was majority support among Democrats and Republicans not to extend certain FISA authority without major reforms. However, these sources say party leaders instructed members to give up the fight for changes and vote to let it continue untouched.

“FISA is a crucial tool for thwarting terror attacks,” acknowledged a spokesman for the lead Republican on the House Intelligence Committee, Rep. Devin Nunes (R-Calif.). “However, in light of the abuses committed in the Carter Page warrant,” he continued, “the system needs to be overhauled. Without major reform, we’ll probably have to abolish FISA altogether rather than keep it in its current form.”

Several members of Congress who did not wish to be named said, point blank, that FISA in its current form is all but dead.

However, former NSA attorney and FISA expert George Croner says that killing the court is not so simple. Croner, a senior fellow at the Foreign Policy Research Institute, advocates keeping the FISA Court as it is. He says if the FISA Court were eliminated, it would have to be replaced by some other process for overseeing sensitive wiretaps of U.S. citizens. Croner says the replacement would likely be less effective and more flawed.

Croner says that next month there are three expiring provisions of FISA authorities: Section 215 of the PATRIOT Act, the roving wiretap, and the “lone wolf” provision.

The government uses Section 215 of the USA PATRIOT Act to justify bulk collection of telephony “metadata” of U.S. citizens. Section 702 allows wiretapping of communications between foreign targets and U.S. citizens without a warrant, resulting in “incidental” collection of private information belonging to innocent Americans who communicate with a target.

Wyden says he advocates new strong, reform of Section 215 as well as new protections against FISA abuse.

Keith Chu, a spokesman for the senator, says, “Anyone concerned about individual FISA orders should be terrified by the potential for abuse in warrantless surveillance programs like sections 215 and 702, where there is virtually no court oversight.”

“I just don't think anyone has shown that FISA is fundamentally flawed,” says Croner. “If the judges aren't told the information they need to make the decision because the FBI isn't telling them the information, I don't know how that's an institutional problem at the FISA court.”

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