To Fix the FISA Court, Appoint Public Advocates

Public Advocates

This post was originally published on Real Clear Politics.

Last week’s letter from House Intelligence Committee Chairman Devin Nunes, R-Calif., to Attorney General Jeff Sessions states that the FBI may have broken federal law by using unverified information to support its Foreign Intelligence Surveillance Act warrant applications against Carter Page.

First obtained by Fox News, Nunes’ letter indicates that the FBI might be in breach of its own regulatory guidance, because it relied heavily on the uncorroborated testimony of former British intelligence officer Christopher Steele, who authored the now-infamous Trump dossier.

First, Sessions and Justice Department officials should answer by Thursday Nunes’ question of whether unverified information can support a FISA warrant. If the answer is yes, then Justice should urgently issue new guidance barring such information from being used in any future warrant application.

If, however, the the guidance continues to prohibit use of unverified information in FISA applications, Sessions must direct his agency’s inspector general and the FBI’s Office of Professional Responsibility to conduct a timely investigation into who was responsible for compiling the FISA warrants related to Page; whether any other FISA warrants have been submitted with similarly unverified information; and whether Justice or FBI officials attempted to hide or manipulate evidence in order to get their warrant approved by the FISA court.

And the matter shouldn’t end there, either. It will take time to uncover the full truth of possible FISA-related malpractice, but it is already clear that many citizens have lost faith in federal law enforcement as it relates to surveillance. This faith matters deeply in its influence on broader notions of patriotism, trust in government, and confidence in individual freedom — three ideas critical to the American identity.

In turn, the FISA court requires structural reform to restore the public confidence in its crucial work. To that end, Congress should immediately begin work on legislation that would appoint 11 public advocates to the FISA court. These advocates, although not directly representing those whose names have been presented to the court for surveillance, would try their best to represent their interests and present the best possible case against the government’s position.

Whenever at least two of the 11 advocates raise concerns about the merits and evidence of a FISA application, all 11 advocates should review the case. If a supermajority of these advocates (say, eight of them) share a similar concern, then the DOJ should be required to strengthen or withdraw their original warrant application.

Proposals for such FISA advocates have been suggested previously, but opposition from the executive and judicial branches has smothered the idea every time. The good news is that President Trump has learned a bit about being on the business end of foreign intelligence surveillance. Hopefully, that will be enough to convince him that the system is broken and to open his mind to a much-needed reform.

This post was originally published on Real Clear Politics.

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