Reforming Intelligence and Securing America Act

Floor Speech

Hon. Richard J. Durbin, Chair, Committee on the Judiciary, U.S. Senate, Washington, DC. Hon. Mark R. Warner, Chair, Select Committee on Intelligence, U.S. Senate, Washington, DC.

Dear Chair Durbin and Chair Warner: On behalf of the Foreign Intelligence Surveillance Court (FISC), I am writing to express concerns regarding a provision of H.R. 7888, the ``Reforming Intelligence and Securing America Act,'' that could seriously disrupt FISC operations without increasing the effectiveness of the FISC in reviewing government surveillance applications. Section 5(a) of H.R. 7888 would require the FISC, ``to the extent practicable and absent exigent circumstances,'' to assign applications to renew Title I surveillance orders for U.S.-person targets to the ``judge who issued the original order.''

Steering renewal applications for U.S.-person targets to a specific judge would be burdensome and disruptive and would not improve the quality of FISC review or enhance privacy protections. Moreover, and despite best efforts to implement such a requirement, there may be many cases in which it is not ``practicable'' for the initial judge to entertain a renewal application.

On December 8, 2023, I expressed concerns regarding comparable provisions in H.R. 6570 and H.R. 6611. (Enclosed are copies of my letter to the leadership of the House of Representatives of that date and a memorandum that was transmitted therewith, including enclosures that outline the concerns in greater detail.) Section 5(a) of H.R. 7888 is similarly worded and presents the same concerns.

For U.S.-person targets whom the government wants to monitor over time, the FISC is often called upon to review a series of applications at intervals of no longer than 90 days, and potentially more frequently in fast-moving investigations. The ``impracticability'' of presenting each such application to the same judge is inherent in the statutory structure and composition of the FISC. As established by Congress in 1978, the FISC is a single national court comprised of United States District Judges from at least seven circuits around the country. As a part- time duty, these judges travel to a secure federal court facility in Washington, DC, to hear FISC cases under a rotating duty-week schedule. Currently, their dockets consist of applications the government submits for that week, without regard to which judges approved prior orders. Traveling to Washington, DC, more frequently to entertain renewals earmarked for their individual review would substantially impinge FISC judges' capacity to perform their district-court work.

We understand some in Congress may intend this provision to reduce government judge-shopping; however, presenting renewal applications to the judge who ruled favorably on the first one would not improve on the anti-judge-shopping procedures that Congress and the FISC have already put in place. FISA currently requires that, if the government resubmits a previously denied surveillance application, it must be presented to the judge who issued the denial. 50 U.S.C. Sec. 1803(a)(1). In addition, the FISC sets and implements the judges' duty schedule independently of the government. In order to forestall judge-shopping, the FISC withholds from the government the identity of the judge who is on duty during a given week until after the government is required by Court rule to have submitted the applications it proposes to be heard that week. By law, renewal applications must be reviewed de novo with the same scrutiny as an original application; in practice renewal applications often benefit from even more information than was available initially (e.g., results of previously authorized surveillance). Accordingly, the FISC robustly ensures that each judge who considers a renewal application is fully informed about prior applications for the target, including facts proffered by the government, reports on implementation, and internal analysis and observations by the FISC judge(s) who previously ruled and staff attorneys.

The Court recognizes that it is within the province of the political branches of government to determine policy on national security, personal privacy, and other such matters. However, federal judges do consult with Congress regarding the effects of certain legislation on court operations. I am restating concerns about this judge assignment provision because the record does not reflect that all members of Congress have received and fully considered information about the FISC's unique structure and mode of operations in evaluating it. If the timetable for reauthorizing Section 702 of FISA does not permit a thorough examination of this provision prior to legislative action, I hope that Congress considers revisiting the provision in the near future. I also wish to be clear that it may not often be ``practicable'' to steer renewal applications to the judge who granted the original order, due to the serious burdens and inefficiencies that fuller implementation would impose on judges in their FISC and district-court capacities.

To the extent that you believe it would assist Congress's current or future deliberations, I encourage you to place this letter and the enclosures in the Congressional Record.

Thank you for considering these concerns. If I may be of further assistance in this matter, please contact me through the Administrative Office of the United States Courts, Office of Legislative Affairs. Sincerely, Anthony J. Trenga, Presiding Judge.

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