Source: United States House of Representatives – Representative Justin Amash (R-Mich)
FOR IMMEDIATE RELEASE
December 18, 2020
Amash introduces legislation to improve FISA oversight
WASHINGTON, D.C. – Rep. Justin Amash (L-Mich.) today introduced two bills to improve oversight of intelligence activities under the Foreign Intelligence Surveillance Act (FISA): The Intelligence Community Congressional Whistleblowing Improvement Act and the FISA Oversight Correction Act.
“There is much work to be done to fix FISA itself and eliminate the authorities under which the government violates Americans’ rights,” said Amash. “But that will be for nothing if we don’t also fix the oversight regime that has failed to prevent serious FISA violations.”
Intelligence Community Congressional Whistleblowing Improvement Act
Current law explicitly protects intelligence community whistleblowers who raise urgent concerns with Congress, but only if the whistleblower contacts the House and Senate intelligence committees. This requirement reduces the potential efficacy of whistleblowing to Congress because it routes protected whistleblower reports through the intelligence committees, which have been known to impede effective oversight of the intelligence community, and limits the dissemination of whistleblower reports to other members of Congress who may be more inclined or better positioned to act on them. These factors may dissuade whistleblowers from coming to Congress in the first place.
The Intelligence Community Congressional Whistleblowing Improvement Act reduces this problem by explicitly allowing intelligence community whistleblowers to make protected disclosures, using secure processes, to any member of Congress, regardless of whether the member is on one of the intelligence committees.
FISA Oversight Correction Act
The FISA Oversight Correction Act improves FISA oversight through the judicial process. When Congress passed the original FISA statute, it created a process through which a judge can grant a criminal defendant access to their FISA warrant and the application that was submitted to the FISA court to obtain it. Accessing these materials is routine for defendants facing regular criminal warrants because such access is necessary for a defendant to challenge a warrant’s legality. Those challenges enable defendants to defend their Fourth Amendment-secured rights, and they help deter law enforcement wrongdoing and negligence in the warrant process.
But in the 40-plus years since FISA passed, no one who has tried to obtain their warrant materials through the process provided for in FISA has been successful. People are being convicted and sent to prison without the opportunity to meaningfully challenge the FISA warrants used against them. This threatens defendants’ rights, violates Congress’s intent when drafting FISA, and removes crucial oversight of the FISA process that might have prevented some of the numerous compliance failures and rights violations that have occurred over the years.
The FISA Oversight Correction Act addresses this problem by correcting the legal standard used by judges to determine whether a defendant may access FISA warrant materials so that such access will be granted in appropriate cases. (In practice, this access would be granted to the defendant’s lawyer, provided they have a security clearance.) This change will better protect defendants’ rights, fulfill Congress’s original intent, and provide some desperately needed oversight of the FISA process.
Bill texts are attached.