Earlier this month, the Reiss Center on Law and Security sponsored a program titled “Reforming the FISA Process: Proposals for the Future.” It was a panel discussion and, as is often the case when it comes to discussing the Foreign Intelligence Surveillance Act (FISA), the group was overpopulated with lawyers and underpopulated with intelligence professionals. The discussion of proposed FISA “reforms” was complemented by a handout detailing “a series of concrete proposals for FISA reform” prepared and distributed by Just Security, which cosponsored the event with the Reiss Center.
The triggering event and focus for the panel discussion was the report Review of Four FISA Applications and Other Aspects of the Crossfire Hurricane Investigation (the “Horowitz Report” or “Report”) completed by the Department of Justice (DoJ) inspector general and publicly released, in redacted form, on December 9, 2019. The Report has triggered an avalanche of commentary (including myown), appearances by Inspector General Michael Horowitz before two Senate committees, a sharp reaction from the Foreign Intelligence Surveillance Court (FISC), and extensive discussion on television and the internet by a multitude of talking heads, some of whom are qualified to speak on FISA issues – and many others who are less well informed.
Before the release of the Horowitz Report, Congress acted in late November to extend (until March 15, 2020) the December 15, 2019 sunset date for three FISA authorities. Now, reacting to the disclosures made by the DoJ inspector general, critics of FISA on both the left and the right are looking to the looming debate on these three expiring FISA provisions as an opportunity to significantly alter FISA far beyond the issue of whether the three sunsetting provisions should be reauthorized.