PATRIOT Act Morass: Gains and Stalled Reforms – Project On Government Oversight

Posted: March 19, 2020 at 11:45 pm

An important reform that was removed from the bill would have allowed the amicus to directly petition the Foreign Intelligence Court of Review to examine a FISA Court ruling the amicus disagreed with. This is a commonsense measure. Currently, if the FISA Court sides with the amicus, the Justice Department can appeal to the review court, but the amicus does not have the same option if the FISA Court sides with the Justice Department. But instead, the final bill only permits the amicus to ask the FISA Court to submit a petition to the Foreign Intelligence Court of Review, requesting that it review the case on appeal. The effect is that the amicus essentially must ask FISA Court judges to facilitate an effort to get their own opinions overruled. The bill does require the judges to provide a written explanation (which will then become public) if they refuse the amicuss request, which will hopefully limit bad-faith refusals of petitions for review. But there is no practical reason for the FISA Court to serve as a gatekeeper for petitions to the review court, which already has the authority to choose to accept or refuse cases.

In a positive, but too-limited step, the House bill also expands the amicuss ability to participate in cases involving First Amendment-protected activities. The bill requires the amicus to be brought in for cases that present exceptional concerns to First Amendment-protected activities; in contrast, a previous version of the bill contained a broader provision that would have allowed the amicus to participate in cases involving significant concerns. While the final language is a positive expansion of the amicuss role, it is indefensible to cut the amicus out of situations that present significantbut not necessarily exceptionalconcerns to First Amendment-protected activities.

The bill provides some improved access to information for the amicus. It allows the amicus to request the FISA Court provide access to any particular materials or information (or category of materials or information) that are relevant to the amicuss duties, which will aid the amicus in participating effectively in proceedings. And including category of materials or information is especially important to prevent a situation where the amicus wouldnt know what materials to ask for without seeing what materials exist. Its worth noting, though, that this provision was watered down from a previous version of the bill, which included a requirement for the FISA Court to disclose basic information, such as applications, certifications, petitions, and motions.

Given the recent concerns about the veracity of claims the government makes in FISA Court proceedings, its disappointing to see such limited reforms to the role of the amicusparticularly in the wake of the inspector general report on government misrepresentations of fact related to surveillance of former Trump campaign aide Carter Page. Experts have highlighted how the amicus should serve as a watchdog against this type of abuse, and a bill introduced by Republicans on the House Intelligence Committee included a thoughtful proposal to involve the amicus in surveillance applications targeting U.S. persons. (Several minor provisions of that bill were incorporated into the USA FREEDOM Reauthorization Act, but its expansion of the amicus role was not.)

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PATRIOT Act Morass: Gains and Stalled Reforms - Project On Government Oversight

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