How Trump Can Reform FISA Courts, Declassify “Deep State” Documents

During his presidential campaign, Donald Trump issued a ten-step “plan to dismantle the Deep State.” Two of his proposals dovetail perfectly with measures advocated by PPSA that would hold the Intelligence Community accountable for surveillance abuses. One measure fits President Trump’s promise to “totally reform FISA courts.” The second measure supports his promise to declassify documents that reveal the intelligence community’s “spying, censorship, and corruption.”
 
President Trump Should Support Expansion of the FISC Amicus Program:
The Foreign Intelligence Surveillance Court (FISC) has the ability to appoint outside experts with high-level security clearances to advocate for Americans’ First and Fourth Amendment rights before the secret court. But the FISC has only resorted to such experts, or amici curiae, a handful of times in evaluating thousands of requests for secret warrants from the FBI. The FISC shamefully did not bother with such an amicus when it authorized FBI surveillance of Trump campaign aide Carter Page, allowing the bureau to spy on President Trump’s first campaign and transition.

• FISC reform is popular and bipartisan. In 2020, 77 senators voted in favor of a measure then known as the Lee-Leahy Amendment, which gives the secret court access to independent advice from experts on civil liberties when the government seeks to spy on domestic media, as well as religious, political, and other particularly sensitive groups. FISC judges should also be required to use amici in cases involving any requests for approval of new programs, new technologies, new uses of an existing technology, or the reauthorization of any programmatic surveillance of Americans.

 
o   Such legislation could also guarantee that all exculpatory evidence, which might cast doubt on the agency’s conclusions, be provided to the amicus. This would guarantee that the FISC is presented with all the relevant evidence, not merely the government’s heavily curated, pro-surveillance requests, as happened in the Carter Page case.
 
President Trump Should Support Reform of the Judge-Made “Glomar” Response
Courts around the country have endorsed what are called Glomar responses, a judge-made doctrine that shuts down Freedom of Information Act (FOIA) requests. It does this by allowing an agency to neither confirm nor deny the existence of responsive documents.

• Legislation should narrow the government’s ability to invoke Glomar to avoid its obligations under the FOIA law to produce documents.

 

• Legislation should also narrow the availability of Glomar responses in cases in which a request seeks documents about the government’s spying on American citizens.

 

• Even when a Glomar response stands, and requested documents remain classified, the American people should be informed when the FOIA request confirms unlawful surveillance. This knowledge could be used to enhance congressional investigations and oversight, as well as to support declassification.

 
President-elect Trump has personal reasons to feel abused by out-of-control FBI surveillance. By supporting these reform measures, he can build a legacy of reform and freedom from illicit surveillance.

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