05.13.20

Statement of Senator Patrick Leahy (D-Vt.) On the Lee-Leahy Amendment to USA FREEDOM

. . . . Senate Floor

I entered the Senate in the wake of Watergate in 1975, a time when the American people’s faith in our institutions, including our intelligence agencies, was profoundly shaken.  The very first vote I cast was in favor of creating the Select Committee to Study Government Operations with Respect to Intelligence Activities and the Rights of Americans — that is, the Church Committee.  Through that Committee’s work, the American public soon learned of years of surveillance and other abuses that had occurred at the hands of our intelligence agencies.  In response, the Senate passed sweeping reforms to rein in this overreach. 

So much has improved over the 45 years with respect to our intelligence agencies’ compliance with the law.  But inexcusable problems remain.  And we have seen time and time again that the system we have created — with government lawyers seeking approval for surveillance in a secret surveillance court — falls short of protecting Americans’ basic due process rights.

I have no doubt that our intelligence professionals work very hard, are dedicated to protecting Americans, and strive to follow the rules.  I do not doubt that for a second.  But I nonetheless cannot escape the conclusion that the rules are simply not good enough.  And a process that operates in total secrecy, with no check on the government’s allegations or portrayal of the facts at issue, is bound to fall short.  When it comes to justice, a bedrock of our democracy, falling short is not good enough.

Last fall, the Justice Department’s Inspector General issued a report that detailed 17 errors or omissions in the FBI’s FISA applications to surveil former presidential campaign adviser Carter Page.  While the Inspector General did not find that the mistakes were politically motivated, the errors were nonetheless serious.  And we’ve since learned that they were not isolated incidents.

In March — just two weeks after the House passed the very legislation we’re considering today — the same Inspector General released an even more damning report.  He sampled just 29 FBI applications for FISA surveillance.  He found deficiencies in 25 of those 29 applications, with an average of 20 “issues” on each application.  These errors include a failure to disclose all exculpatory evidence.  That is simply unacceptable, and it strongly indicates that something is wrong and needs to be fixed within the FISA process.

Senator Lee and I have been working to do just that.

The heart of our proposal is to improve the amici program that we created, with the assistance of members like Senator Blumenthal, with the USA FREEDOM Act of 2015.  We created a process by which the FISA court could appoint amici to provide an independent perspective on certain complex issues before the court.  Amici do not act as defense attorneys, representing a target of surveillance. They serve the court.

But we gave the court narrow grounds to require the appointment of amici: novel or significant interpretations of law.  While amici have since served the court well, I was disappointed to learn that amici have only been appointed 16 times over the last five years.

We must do more to encourage the appointment of amici in cases that involve serious constitutional issues.  My amendment with Senator Lee would create a presumption of amici participation in cases involving significant First Amendment issues, not just “exceptional concerns” as in the House bill.  Importantly, we also create a presumption of amici participation when the FBI considers the case to be a “sensitive investigative matter,” which the FBI defines as an investigation involving the domestic media or a domestic religious organization, or a public official.

Most critically, we would leave the decision to appoint an amicus entirely up to the FISA judge.  As a result, the argument that expanding amici participation would unduly burden the court does not withstand even the slightest scrutiny.  If the judge believes amici would not be appropriate because the case is too time sensitive, too simple or routine, or for any other reason, they have the discretion to not appoint an amicus at all.  Under our amendment, throughout the FISA process, the judge retains complete control.  That is not a burden on the court — that is empowering the court. 

In reality the number of cases that would have amici participation under our amendment would remain manageable.  The cases likely to raise significant civil liberties issues would almost certainly be a small subset of those applications related to U.S. persons, as foreigners abroad do not have constitutional rights, and the total number of such U.S. person cases last year was just over 200.

Perhaps this is why the courts themselves do not anticipate that our amendment would create a significant financial burden.  The Administrative Office of the Courts estimated it would cost only $225,000 a year, which they can pay for out of their discretionary budget.  The CBO scored the amendment at zero.

But the benefits of this amendment would be significant.  Responding to the latest Inspector General report, which found serious issues in 25 of the 29 FISA applications it reviewed, we would require that the government turn over all material exculpatory information to the court, and make it available to the amici, too, if one is appointed.  That is a basic due process protection available in every public courtroom in America.  The FISA court should be no exception.

Today the Senate has an opportunity to reform our flawed surveillance authorities.  Such opportunities do not come by often and we should not squander it.  That is especially the case when the Justice Department’s Inspector General has been sounding the alarms, alerting us to widespread problems within the FISA process.

After the Church Committee found abuses within our intelligence agencies, the Senate came together to respond decisively.  While much has improved since then, we are now confronted with serious, yet solvable problems within the FISA process.  I hope the Senate is equally up to the task today.

I want to thank Senator Lee for his partnership on this issue, and for his steadfast devotion to protecting the rights of Americans.  I am proud to stand with him today.  And I urge all of our fellow senators to stand with us — to stand up for the Constitution — and support our amendment.

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