Congressional leaders given access to surveillance court in bid for more transparency

A secret surveillance court is opening its doors to members of Congress.

The Foreign Intelligence Surveillance Court (FISC), which operates in near total secrecy due to the nature of its work, will begin allowing a select group of congressional leaders, or their proxies, to observe proceedings in-person for the first time starting this week. They can also attend the Foreign Intelligence Surveillance Court of Review, which hears the rare appeals from the lower court.

“I’d like to see and touch something we’ve spent so much time talking about,” Rep. Jim Himes of Connecticut, the top Democrat on the House Intelligence Committee and one of the lawmakers granted admission to the federal court, told Recorded Future News.

The attempt to demystify FISC was included in last year’s bill extending Section 702 of the Foreign Intelligence Surveillance Act (FISA). The law lets the National Security Agency intercept the communications of foreign-based intelligence targets that pass through U.S. telecom and internet companies. However, the tool also hoovers up data about American citizens.

FISC oversees foreign surveillance, including Section 702. It has long approved the overwhelming number of the federal government’s warrant applications and sanctioned most of its surveillance efforts. 

While the court has been critical of the government in the past, though rarely publicly, the overall trend has led some policymakers — particularly members of the House GOP Conference — to label it a “rubber stamp” for the government’s activities.

A mix of privacy advocates and civil liberties-minded lawmakers have pushed for ways to make secretive FISC proceedings more transparent. They also contend that making the court open its doors, even narrowly, will blunt some of the attacks on it while boosting understanding of surveillance tools like 702, which is up for renewal again next year.

However, observers don’t believe allowing Congress to sit in on court cases is a good way to remove the mystique.

“This is just a bad idea. There's a reason the public isn't allowed there. There’s no particular reason to think that members of Congress need to do it,” said one former U.S. official, who spoke on the condition of anonymity.

There is a “tremendous potential” for “unintentional and inadvertent” leaks, either by members themselves or their staff, according to the official.

Glenn Gerstell, a former NSA general counsel, noted that it is customary for the Justice Department and the U.S. intelligence community to submit draft copies of proposed applications to the court beforehand. That kind of consultation is required by statute for some surveillance efforts, including 702, or for new procedures.

“There's some back and forth — informal, completely legal, completely appropriate, that’s the way the process is supposed to work— so that the government gets a better idea of what the judges might be willing to approve,” he said. 

Congressional visitors won’t have a “full picture because they will not be able to put it in context” and by the time an application lands on the judge’s desk “it might well have been shaped to be more appropriate for what the judge might approve because they've weeded out some things that were problematic or of greater legal concern.”

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, said enhanced transparency and oversight of the court is “badly needed but permitting in-person attendance by members of Congress has only marginal benefit.”

“Very few members will be able to make time to attend, and to the extent they share what they saw with other members, their accounts could be tinged by bias or faulty memory,” she said. 

A “more valuable” provision in the last 702 renewal bill requires transcriptions of FISC business to be transmitted to the relevant congressional committees.

“This will enable a much larger number of members to have an accurate understanding of what takes place in the proceedings,” Goitein added.

The roster

Not just anyone from Capitol Hill can show up at the court.

A November 18 memo signed by Matthew Olsen, the now former chief of DOJ’s National Security Division, details who can be present at the court and the security protocols they must adhere to.

The memo, and a “prioritization list” — copies of which were obtained by Recorded Future News — specifies the two dozen people who can go.

The group includes the “Gang of 8,” made up of the top two congressional leaders in each chamber and the Republican and Democratic heads on the House and Senate intelligence committees. 

The roster also includes the leaders of the two Judiciary committees, which share jurisdiction over FISA with the Intelligence panels. Both groups already have access to FISC materials but there is often a lag; policymakers sometimes must demand information to be turned over.

Lawmakers can also pick “designated staff” to attend FISC activities, which occur in a sensitive compartmented information facility (SCIF) in a courthouse in Washington, on their behalf.

Last Thursday, DOJ’s Office of Legislative Affairs offered a virtual training session via Microsoft Teams that covered the logistics for staff or members who want to attend a FISC hearing, according to a notice that was shared with Recorded Future News. The office provided a similar course on December 19.

Spokespeople for the Justice Department and the FISC declined to comment.

Both Senate Judiciary Committee Chair Chuck Grassley (R-IA) and Mark Warner (VA), the top Democrat on the Senate Intelligence Committee, said they had not attended the court training sessions.

Warner said he hoped being able to visit the court would be useful to members, "particularly for those who might have been uniformly opposed” to Section 702 reauthorization.

House Judiciary Committee Chair Jim Jordan (R-OH), a close ally of President Donald Trump, did not attend the training seminars but said he was discussing going to the court with his panel’s chief counsel.

“Should I go? Should he go? Should some other lawyer go? How are we going to do all that? We haven't determined that,” he said.

Jordan, who last year helped spearhead a defeated effort to impose a warrant requirement for searches of the Section 702 database, said he was more focused on taking up that issue again ahead of next year’s renewal battle.

The Ohio Republican admitted he was skeptical if members and staff dropping by the FISC would ultimately help inform the looming debate.

“We’ll see. Maybe it’s not that critical. We’re still trying to figure all that out,” he said.