EDITORIAL: Well past time to reform America’s secret court

Accountability and oversight are integral to a free society and a healthy democratic republic. More than five decades of secret justice proves the point.

Congress established the U.S. Foreign Intelligence Surveillance Court in 1978 to oversee law enforcement efforts to investigate foreign spies operating inside the United States. The court’s caseload jumped significantly after the 9/11 attacks in 2001. Records and hearings are classified, and 10 rotating justices preside.

The secret court made news in 2019 when the chief judge issued a rare public statement, chastising the FBI for including incomplete or misleading information in warrant applications during the agency’s probe into whether the Trump campaign colluded with Russia.

Turns out, instances of such manipulation have occurred with alarming frequency.

Last week, the office of the inspector general for the Justice Department released a report on FISA warrant applications which found numerous examples of law enforcement skirting procedures when seeking permission from the secret panel to spy on Americans.

The FBI and the Justice Department’s National Security Division are supposed to put in place “factual accuracy review procedures,” known as Woods procedures, to ensure that warrant requests are “scrupulously accurate.” In 2020, IG auditors “identified Woods procedures non-compliance in all 29 FISA applications we reviewed. … Our further audit work identified (more than) 200 additional instances of Woods procedures noncompliance — where Woods files did not contain adequate supporting documentation for statements in the 29 applications.”

In other words, nobody at the FBI or NSD seems particularly concerned with the accuracy of the applications the agencies submit to the secret court. Would they behave similarly if they knew the details would be available for public or defense scrutiny? Doubtful.

“We believe the best way to ensure accuracy and stakeholder confidence is to promote a culture that treats all FISA application errors as potentially serious,” the auditors conclude. They’re absolutely correct — and it’s high time the judges on the secret tribunal quit rubber-stamping such affidavits, particularly given the reality that the cavalier attitude with which the FBI has been allowed to execute the warrant process should be an embarrassment to the court itself.

The audit provides more ammunition for those demanding increased transparency. Secret justice is no justice at all — particularly when more and more American citizens have become caught up in the Star Chamber. Partisan rancor may dominate the Beltway these days, but there are plenty of elected officials on both sides of the aisle willing to side with civil liberties and the Bill of Rights over judicial secrecy. Time to get it done.