Opinion

We need to reform U.S.'s secret intelligence court

We just got a better look at the dirty underbelly of the government's secret intelligence court, and it's bad.

Justice Department Inspector General Michael Horowitz released a long-awaited report last week that scrutinizes the FBI's investigation into the Trump campaign's ties with Russia.

Many Democrats quickly seized onto the inspector general's finding that the investigation was properly opened as vindication, proving it was not the partisan "witch hunt" the president claims. The findings, nonetheless, are a scathing indictment of FBI investigative practices. The inspector general found that the FBI committed a litany of errors in efforts to surveil targets. And his examination of internal FBI policies confirmed a shocking lack of basic safeguards, raising profound civil liberties concerns.

Under the Foreign Intelligence Surveillance Act, the government is required to seek permission from a secret intelligence court - known as the Foreign Intelligence Surveillance Court - to spy on Americans for foreign intelligence purposes. For more than 40 years, proceedings in this court have been shrouded in secrecy, authorizing some of the most novel and intrusive surveillance techniques imaginable.

In an entirely one-sided process, judges on this court sign off on classified government surveillance requests impacting countless Americans a year who are never suspected of committing a crime. Typically, no one outside of the government - including defense attorneys in cases involving FISA surveillance - sees these requests, let alone has an opportunity to meaningfully challenge them.

Civil liberties groups, including the American Civil Liberties Union, have long warned that the secretive nature of this process breeds abuse. The inspector general's report further confirms this fact.

The report revealed that the FBI's request to spy on Carter Page, a former Trump campaign adviser the government believed was acting as a Russian agent, was riddled with a litany of errors and omissions. It mischaracterized and excluded key facts relevant to the reliability of its sources. It cited interactions Page had with known Russian intelligence officers, yet it failed to disclose that Page was a CIA source during a period that overlapped with some of these interactions.

Despite these and other significant errors - several of which would likely face pointed challenges in an adversarial proceeding - the intelligence court approved the FBI's request to spy on Page. These and several other errors were repeated in three more requests, all of which were also approved by the court.

What makes this example particularly striking is that the Page surveillance application was scrutinized by the FBI far more than usual. As the inspector general's report noted, the errors were "made by three separate, hand-picked teams on one of the most sensitive FBI investigations that was briefed to the highest levels within the FBI, and that FBI officials expected would eventually be subjected to close scrutiny."

If this is what close scrutiny looks like, one has to wonder how many errors occur in other, less politically charged cases that never receive the benefit of inspector general review or congressional attention. And if this abuse can happen in the case of an adviser to the Republican nominee for president, one can only imagine the abuses that affect other individuals less connected than Page.

Our intelligence laws are in dire need of reform. And members of Congress - many of whom have been ardent defenders of intrusive spying powers but are now "outraged" and "disgusted" by the Page debacle - must do more than engage in political histrionics. They must reform intelligence rules and practices that for years have been used to wrongly target a broad range of Americans, including Muslims, racial minorities and activists.

As a start, Congress should make the intelligence court more adversarial and transparent, give criminal defendants access to the surveillance applications and orders relied on in their cases and require higher standards before the government can surveil individuals in the first place.

At a hearing this week, Sen. Lindsey Graham, R-S.C., said: "What happened here is the system failed." Leaving aside any questions about what his political motivations might be, he is absolutely right about the system failing. But, he missed one important point: Members of Congress - Democrats and Republicans - built it to fail. It is now time they fix it.

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Singh Guliani is a senior legislative counsel at the American Civil Liberties Union.