Grassley and Durbin Protest Absurd DOJ Restrictions on Congressional Attendance at Secret Foreign Intelligence Courts

Ranking Member Dick Durbin (D-IL) and Judiciary Committee Chairman Chuck Grassley (R-IA)

The Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR) are anomalies in American law – secret courts. For decades, they issued secret rulings that created novel interpretations of law that the American people were not allowed to know. They remain to this day one-sided courts in which only the government gets to present its case for why it has a valid intelligence reason to spy on people inside the United States.

Little wonder, then, that 99 percent of the government’s requests to spy on “U.S. persons” are granted by FISC. The one provision that allows FISC judges to bring in outside civil liberties experts, or amici, for advice was not used when the court four times permitted the FBI to spy on a presidential campaign and transition. The Department of Justice also failed to inform the court that a rash of applications for surveillance were actually for Members of Congress and staffers who had oversight responsibility for – you guessed it – the Department of Justice.

To bring oversight to this court and to ensure it is not, in fact, a potted plant, Congress in April 2024 passed the Reforming Intelligence and Securing America Act (RISAA). Among RISAA’s provisions was one that allowed select Members of Congress and designated staff to attend and conduct oversight of FISC proceedings.  

Now Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Ranking Member Dick Durbin (D-IL) have fired off a letter accusing the Department of Justice (DOJ) of derailing this process and curbing oversight.

They write that in the waning days of the Biden administration, DOJ “implemented a policy that requires Members of Congress and their staff to agree to a series of arbitrary and inappropriate procedures before being allowed to attend FISC proceedings, which the Trump Administration has maintained.”

Some of DOJ’s policies and procedures include:

• Prohibiting Members of Congress from sharing information with other Members of Congress and members of their staff;

 

• Restricting Members of Congress from requesting information or documentation from participants of FISC proceedings;

 

• Allowing DOJ staff to remove congressional observers, including Members of Congress, from FISC proceedings at any time and at the sole discretion of DOJ;
• Allowing only a limited number of congressional observers to attend FISC proceedings at any one time;

 

• Prohibiting designated staff from attending the same FISC proceeding as their specified Member of Congress; and

 

• Prohibiting notetaking during proceedings, despite congressional staff’s ability to maintain classified notebooks.

These restrictive rules are idiotic. The objections write themselves.

If Members of Congress cannot talk to anyone else about what they learn – including their staff members who have clearance – what is the point of observing the court proceedings?

Why can’t a Member of Congress and his or her cleared staffer attend together?

Why is the Department of Justice allowed to remove Members of Congress? Isn’t removing people from a courtroom up to a judge?

Above all, how can oversight be conducted if the overseers must promise forever after to forget what they heard and never mention it again – to anyone?

This is all part of a familiar pattern: Congress passes a bold reform that reins in an intelligence community practice. Then the intelligence community parses words and creates new standards out of thin air that geld the new attempt at oversight.

The good news is that RISAA and its provision for congressional attendance of FISC hearings passed only because of leverage provided by the April 2024 reauthorization debate about FISA Section 702, an authority that governs surveillance of foreign spies on foreign soil. The next Section 702 reauthorization debate is set to occur next April.

Congress should make it clear that the Department of Justice must pull back these onerous provisions as one of many preconditions for Section 702 reauthorization.
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The easiest path to reform would be if President Trump – himself a target of illicit surveillance rubber-stamped by FISC – ordered the Department of Justice to roll back these severe limits on congressional oversight.

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