Government transparency fail: Federal courts and FISA

Since he came to Congress in 2013, Rep. Adam Schiff (D-CA) has not been a federal legislator known for having a passion for government transparency and ensuring compliance with the Freedom of Information Act (FOIA). In fact, if you had gone to Congress.gov and searched using his name and “Freedom of Information Act” as late as last week, that search would’ve returned zero hits. Given that history, I was initially surprised to learn on July 23 via The Hill that Schiff had introduced a FOIA bill to provide “public and journalistic access to the Judiciary’s administrative records.”

Schiff has been one of the harshest critics of Supreme Court Justice Clarence Thomas over undisclosed gifts and trips provided to Thomas by Dallas businessman Harlan Crow. Schiff and other Democrats have viewed Thomas’s conduct and relationship with Crow as both ethically wrong (I agree) but also as a political bonanza. In that sense, the bill he’s introduced would, if enacted, potentially provide an additional means to detect or deter the kinds of ethics issues about which he and his colleagues are concerned.

Given how few days are left in the second session of the 118th Congress, and the fact that Schiff introduced the bill without a Republican co-sponsor, it is highly unlikely it will receive a hearing, much less floor action, before this Congress adjourns. If Schiff is elected to the Senate, he could of course reintroduce it in the 119th Congress.

If the bill were to actually successfully move through Congress at some point, what concerns me is what the bill would still keep beyond the reach of the public and the press: Foreign Intelligence Surveillance Court (FISC) correspondence. On page four of Schiff’s bill, it states that the proposed FOIA provisions “does not include the Foreign Intelligence Surveillance Court.”

As I and other privacy and civil liberties advocates have noted multiple times over the last decade, the misuse of the Foreign Intelligence Surveillance Act (FISA) to spy on Americans has been epic in scale and well documented. One of the reasons that those abuses have come to light is because of transparency and reporting requirements included in the 2015 USA Freedom Act and occasional reports of the Privacy and Civil Liberties Oversight Board (PCLOB).

While the transparency requirements on the FISC in the USA Freedom Act are useful, they are also very narrowly tailored, limited to decisions, orders, and opinions of the FISC.

Under Schiff’s proposal, any emails between FISC staff and Department of Justice (DoJ) officials (including the Federal Bureau of Investigation (FBI)), the Office of the Director of National Intelligence (ODNI), the Central Intelligence Agency (CIA), or the National Security Agency (NSA) would be excluded from disclosure. Also excluded would be any letterhead correspondence between the FISC and DoJ, FBI, ODNI, NSA, or CIA involving potential or actual FISA or other surveillance compliance issues.

The data excluded from release under Schiff’s proposal would almost certainly contain important information and insights about real-time FISA surveillance compliance incidents, perhaps including FISA Section 702 query audit reports that the Cato Institute has been seeking via FOIA litigation.

This is important because under the existing USA Freedom Act FISA transparency framework, it’s often several years after the fact before we find out about major FBI FISA compliance failures or abuses.

Making FISC and FISA Court of Review (FISCR) correspondence subject to FOIA, along with their decisions, orders, and opinions, would allow the public at large, civil society organizations like Cato, and the press the ability to engage in external oversight and investigation of the FISA process that would be far timelier than it is now, and thus potentially more likely to lead to actual reductions in surveillance abuses.

FOIA reform like this is long overdue. It should be a major priority in the next Congress.

Former CIA analyst and ex-House senior policy advisor Patrick Eddington is a senior fellow at the Cato Institute.