It’s hard to exaggerate how unusual it was when Rosemary Collyer, presiding judge of the U.S. Foreign Intelligence Surveillance Court, issued a public rebuke to the FBI on Tuesday. Yet her action made sense.
The court operates in secret because it deals in sensitive national security matters. It relies on public trust that federal judges and law enforcement officials balance the government’s need for information against Americans’ Fourth Amendment rights against unreasonable searches. Judge Collyer has good reason to worry whether the government is using extraordinary spying tools on Americans only when necessary.
Judge Collyer wrote that, by providing false information and withholding material in four applications to surveil former Trump campaign aide Carter Page, the FBI misled the court over which she presides, which is supposed to authorize surveillance only when warranted. The FBI must have probable cause to believe that a surveillance target is a foreign power or foreign agent. The court relies on applicants to provide accurate information, under oath.
“The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession ... calls into question whether information contained in other FBI applications is reliable,” Judge Collyer wrote of the Page case. The judge ordered the government to describe what it will do to prevent such disasters in the future.
This is not just a matter for the FBI. The last time Congress thoroughly examined the foreign intelligence surveillance process, it made tentative moves toward transparency. The Page case demands another look.
The Justice Department inspector general, who disclosed the problems with the Page surveillance, is conducting a wider review of FBI foreign intelligence surveillance applications. This might offer lawmakers a sense of whether the Page fiasco was an exception or whether the system is more broadly unreliable. Until then, lawmakers and Justice Department officials should ask what further surveillance court reform might look like. An advocate to argue for those the government is attempting to surveil? Enhanced punishments for misleading the court?
The nation deserves a real debate, divorced from today’s toxic politics.
FROM AN EDITORIAL IN
THE WASHINGTON POST