The Foreign Intelligence Surveillance Court (FISC), which operates in near total secrecy due to the nature of its work, will begin allowing a select group of congressional leaders, or their proxies, to observe proceedings in-person for the first time starting this week. They can also attend the Foreign Intelligence Surveillance Court of Review, which hears the rare appeals from the lower court.
It is nice to see increased transparency at this level. However, a lot of career officials oppose this move.
“This is just a bad idea. There’s a reason the public isn’t allowed there. There’s no particular reason to think that members of Congress need to do it,” said one former U.S. official, who spoke on the condition of anonymity.
There is a “tremendous potential” for “unintentional and inadvertent” leaks, either by members themselves or their staff, according to the official.
Glenn Gerstell, a former NSA general counsel, noted that it is customary for the Justice Department and the U.S. intelligence community to submit draft copies of proposed applications to the court beforehand. That kind of consultation is required by statute for some surveillance efforts, including 702, or for new procedures.
“There’s some back and forth — informal, completely legal, completely appropriate, that’s the way the process is supposed to work— so that the government gets a better idea of what the judges might be willing to approve,” he said.
Congressional visitors won’t have a “full picture because they will not be able to put it in context” and by the time an application lands on the judge’s desk “it might well have been shaped to be more appropriate for what the judge might approve because they’ve weeded out some things that were problematic or of greater legal concern.”
Looking forward to the leaks! 