ArgumentThe Justice Department’s Unconvincing Explanation for Its Reversal on FISA
On 26 May, on the eve of a final vote on legislation to reauthorize recently expired Patriot Act provisions and enact numerous Foreign Intelligence Surveillance Act (FISA) reforms, the Department of Justice issued an eleventh-hour about-face. Having previously stated its support for the bill on 11 March, just two months later the department now has announced its opposition to the legislation. Jake Laperruque writes that DOJ’s about-face – veering between supporting and opposing more FISA transparency and independent oversight – reflects the fact that it is based less a coherent legal theory and more on President Trump’s stream of tweets. The problem is, “Trump’s objections to FISA sway wildly between legitimate problems raised by Justice Department Inspector General Michael Horowitz and baseless conspiracy allegations.”
On 26 May, on the eve of a final vote on legislation to reauthorize recently expired Patriot Act provisions and enact numerous Foreign Intelligence Surveillance Act (FISA) reforms, the Department of Justice issued an eleventh-hour about-face. Having previously stated its support for the bill on 11 March, just two months later the department now has announced its opposition to the legislation. Jake Laperruque writes in Lawfare that, what is more, the department’s explanation for this change does not pass the smell test—and it distorts an important FISA reform contained in the bill.
He adds:
The department claims that it is now opposing the bill because of the sole amendment made by the Senate since the Justice Department’s March 11 statement, an addition sponsored by Sens. Patrick Leahy (D-Vermont) and Mike Lee (R-Utah) that further empowers the FISA Court amicus—a role created by the 2015 USA Freedom Act to advocate for civil liberties in important FISA Court proceedings. The Justice Department argues that this reform, passed on March 13 with broad bipartisan support, endangers national security. Specifically, John Demers, the head of the Justice Department’s National Security Division, claims that because the new provision will give the amicus access to additional sensitive materials, the reform will cause allies to stop sharing valuable intelligence with the United States.
Laperruque says that this argument strains credulity and that, in three key ways, it ignores how the amicus role functions in the FISA Court.
He continues:
With this in mind, the Justice Department’s statement opposing the bill seems more like an excuse than a legitimate rationale. A more plausible reason for the abrupt shift in the Justice Department’s stance comes from the president’s Twitter feed.
Trump’s objections to FISA sway wildly between legitimate problems raised by Justice Department Inspector General Michael Horowitz and baseless conspiracy allegations. But he consistently plays on the theme that the FISA Court is vulnerable to abuse. And it’s impossible to square the two concerns coming from the administration: Trump worries that the legislation provides insufficient accountability at the FISA Court while the Justice Department complains that the bill now includes too much new independent oversight at the FISA Court.
