Lacking Congressional Oversight
In practice, congressional oversight of the FISA process and the underlying materials is severely constrained. Although they have security clearances by virtue of their office, many lawmakers are kept far away from classified documents because they do not have cleared staff to assist in processing the information, and their requests are given lower priority than members of the intelligence oversight committees.
Even members of those House and Senate intelligence committees do not always have access to everything. In the case of the Nunes memo, only the “Gang of Eight” congressional leaders and a handful of others out of the 435 members of the House of Representatives and the 100 members of the Senate reportedly had access to the underlying FISA surveillance applications and un-redacted FISC opinions.
This problem has restricted Congress members before. In 2003, when then-House intelligence committee chairman Jay Rockefeller learned of the NSA’s unconstitutional spying programs under President George W. Bush, he had little capability to fight back. He wrote to then-Vice President Dick Cheney:
“As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities."
Rockefeller—who knew of the programs—could not speak of them. For everyone else, reading FISA and FISC materials is close to impossible. Even after Congress passed the USA FREEDOM Act in 2015 requiring that significant FISC Opinions be released to the public, these opinions are still highly redacted and tightly guarded, and no FISA application material has never been revealed to the public.
It’s for these reasons that EFF has long called for Congress to reform how it oversees surveillance activities conducted by the Executive Branch, including by providing all members of Congress with the tools they need to meaningfully understand and challenge activities that are so often veiled in extreme secrecy.
This will be a four part series, this is part three of four on the topic for today. I hope you enjoyed the blog and learned a few new facts, thank you for reading.