It is hard to exaggerate how unusual it was when Rosemary Collyer, the presiding judge of the U.S. Foreign Intelligence Surveillance Court, issued a public rebuke to the FBI on Tuesday. Yet her action made sense. The court operates in secret because it deals in sensitive national security matters. It relies on public trust that federal judges and law enforcement officials balance the government’s need for information against Americans’ Fourth Amendment rights against unreasonable search and seizure. Collyer has good reason to worry about any evidence this system does not ensure that the government is using extraordinary spying tools on Americans only when necessary.
Collyer wrote that, by providing false information and withholding material detrimental to the FBI’s case in four applications to surveil former Trump campaign aide Carter Page, the agency misled the Justice Department, which is supposed to supervise FBI surveillance, and the court over which she presides, which is supposed to authorize it only when warranted. The FBI must have probable cause to believe that a surveillance target is a foreign power or an agent of a foreign power. The court relies on applicants to provide accurate information, sworn under oath. Unlike in criminal cases, the public, including the surveillance target, practically never sees the applications at the time of approval or after the fact, limiting the opportunity to complain about unwarranted surveillance.
“The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession . . . calls into question whether information contained in other FBI applications is reliable,” Judge Collyer wrote of the Page case. It was particularly egregious that an FBI lawyer altered an email that would have otherwise painted Page in a less concerning light. The judge ordered the government to describe what it will do to prevent such disasters in the future.
This is not just a matter for the FBI. Among the reforms that created the Foreign Intelligence Surveillance Court was the establishment of supervisory congressional committees. The last time Congress thoroughly examined the foreign intelligence surveillance process, it made tentative moves toward transparency. The Page case demands another look.
The Justice Department inspector general, who disclosed the problems with the Page surveillance, is conducting a wider review of FBI foreign intelligence surveillance applications. This might offer lawmakers a sense of whether the Page fiasco was an exception or whether the system is more broadly unreliable. Until then, lawmakers and Justice Department officials should ask themselves what further surveillance court reform might look like. A defense advocate to argue for those the government is attempting to surveil? Enhanced punishments for government agents who mislead the court? New forms of review, keeping in mind that some FISC cases require great speed?
The nation deserves a real debate, as divorced as possible from the conspiracy theories, Twitter raging and blame-mongering that define today’s toxic politics.