Third, we should be wary of the temptation to think about potential FISA reforms exclusively in terms of this case, and the findings of this one report. Not merely because we don’t yet know which of the problems identified by Horowitz are most pervasive—and thus most indicative of the need for a remedy at the policy level—but because Horowitz focused almost entirely on Title I of FISA, which most closely resembles the traditional warrant process, with judges making particularized probable cause determinations. An intelligence investigation in which a FISA order was sought assuredly made use of myriad other intelligence tools, most of which involve far less oversight: Business records orders (§215), pen registers to collect communications metadata (§214), and National Security Letters for certain categories of financial or telecommunications records. Horowitz says little about these, perhaps because these other tools had not been as central to the public controversy surrounding the Page investigation. But if corners are cut to the extent documented by Horowitz even in the case of Title I orders, the most rigorously scrutinized, we can hardly suppose everything’s copasetic with authorities that effectively operate on the honor system.
Title I FISA Orders
The most obvious takeaway from the Horowitz report is that we need far more comprehensive “deep dive” investigations into the use of intelligence tools, both to discover how pervasive the defects Horowitz identified are in other Title I FISA applications, and whether there are comparable problems with other surveillance authorities. As the Inspector General’s report demonstrates, there are serious issues that will not be identified by “higher level” reviews, such as the omission of information that would tend to undermine the government’s case. But such “deep dives” need not just serve as a guide for policymakers: They can also serve as a partial remedy, precisely by replicating (imperfectly) the mechanisms and incentives that serve as checks on criminal investigations.
While, of course, it is not realistic to expect reviews this exhaustive for any significant percentage of FISA investigations, a deeper review of a representative sample of U.S. person FISA applications—not simply verification that facts asserted in the application have documentary support, but a review of the case file and correspondence for material omissions—may help to reproduce some of the incentives that exist on the criminal side. Case agents will be conscious of the possibility—the risk, if not the certainty—that they will be called to explain why some fact favorable to the target of surveillance was omitted from an application. Even if only a small fraction of FISA applications can be so reviewed, such a process would introduce an incentive to focus on potentially exculpatory information currently absent from FISA.
On the front end, the role of existing FISC amici could be expanded to permit discretionary intervention in applications being submitted to the Court—not merely in cases in which the FISC itself seeks their perspective—at least in cases designated “special investigative matters” because of their potential implications for religious, political, or press freedoms. The current remit of the amici is to advise the Court in cases involving “novel or significant” legal interpretations or requiring technical expertise. But civil liberties interests need not be “novel” to require an advocate to make them sufficiently salient to a judge. The participation of amici would add a dimension not typically provided by existing internal oversight, which tends to be more focused on formalistic compliance than weighing competing equities and interests.
Finally—and perhaps most importantly—the presumption that FISA surveillance will be permanently covert should be ended. Currently, the only FISA targets who normally become aware of surveillance are the small fraction the government ultimately chooses to prosecute for a crime—which is to say, those whose wiretaps did indeed produce strong evidence confirming the government’s suspicion that they were engaged in wrongdoing. A target whose surveillance proves to have been unjustified, perversely, has no remedy, because they will never learn of it. While there will doubtless be cases in which the protection of sources and methods precludes such notice—where publicizing even the identities of erroneous targets would feed too much vital information to genuine adversaries—this should no longer be the default. At the termination of FISA surveillance of a U.S. person, there should be a rebuttable presumption of notice parallel to that required by Title III surveillance, unless the government can demonstrate to the FISC that such notice would entail a concrete national security harm sufficiently grave to outweigh the target’s interests. (Here, too, FISC amici should have an opportunity to represent those interests.) As the Supreme Court wrote in Berger v. New York, the requirement that targets of a search be given notice absent exigent circumstances “would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized.” Indeed, notice is an important component of what makes a search “reasonable” in Fourth Amendment terms. It was the absence of notice that particularly sparked Lord Camden’s ire in the seminal English case of Entick v. Carrington: