More than forty years ago, Congress
gave the executive branch a set of exceptional surveillance powers to pursue
foreign spies on U.S. soil. Now, the government is increasingly relying on those
powers to advance ordinary domestic criminal investigations.
In United States v.
Osseily, a fraud prosecution in California, the government appears to have used
this surveillance — which is conducted under the Foreign Intelligence
Surveillance Act (FISA) — to wiretap
a longtime permanent resident of the U.S., Abdallah Osseily.
Mr. Osseily is a small business
owner and a father of three. The government has charged him with bank and
immigration fraud — charges that have nothing to do with “foreign intelligence”
or “national security.” Indeed, the government has presented no evidence that
Mr. Osseily ever acted on behalf of a foreign government. On top of all this,
the government is trying to block Mr. Osseily from learning almost anything
that would help him challenge this controversial surveillance.
As we and the ACLU of
Southern California made
clear to the court, this is wrong.
FISA gives the government an
extraordinarily powerful surveillance tool. Under FISA, the government can ask
a secret court, the Foreign Intelligence Surveillance Court, for approval to wiretap
individuals to obtain “foreign intelligence information.” As compared to
ordinary criminal wiretaps, for which the government must establish probable
cause that the wiretap will yield evidence of a particularcrime, FISA
surveillance is based on relaxed standards, allowing the government to conduct
surveillance with fewer restraints. In recent years, the government has relied
on FISA to deploy an array of novel and intrusive surveillance techniques — implicating the privacy rights of countless
Americans who have never been suspected of any crime.
Disturbingly, the government
is increasingly using these broad and intrusive spying powers in
run-of-the-mill criminal investigations against Americans, circumventing their
Fourth Amendment rights. For instance, the government recently relied on FISA
surveillance to charge a man in Washington D.C. with crimes related to mortgage
fraud. It used FISA to spy on Temple University physics professor, Xiaoxing
Xi, before charging him with wire
fraud — in a prosecution that was
ultimately dismissed. And in Michigan, the government revealed that it used FISA
surveillance in a prosecution for food-stamp
fraud. That’s about as far from espionage or national security as you can
get.
To make matters worse, people
caught up in FISA prosecutions face immense hurdles in vindicating their due
process rights and holding the government accountable.
Normally, when the government
uses wiretap evidence in a criminal case, defendants have the right to review
the government’s application in order to challenge any errors and omissions.
This is a commonsense requirement and a bedrock due process protection: The defendant,
with the assistance of counsel, is best positioned to identify potential misrepresentations
by government agents. But when it comes to FISA surveillance, defendants never
get that opportunity — even when the government relies on FISA surveillance in ordinary
criminal prosecutions. In the 40 years since FISA was enacted, no defendant has
ever been able to review the government’s FISA application.
The Department of Justice
Inspector General’s recent
report on FISA abuses shows exactly why that’s a problem. The report
exposed a shocking number of misstatements and omissions in the government’s
FISA applications to surveil former Trump campaign advisor Carter Page. If this
abuse can happen in the case of an adviser to the now-president, one can only
imagine the surveillance abuses that affect other individuals less connected
than Page.
Indeed, in 2000, the
government confessed that 75 surveillance applications it had
submitted to the FISA court contained misstatements and omissions of material
facts. In 2014, a press report revealed that five prominent Muslim
Americans, including one who had served in the Bush administration, were
apparently targeted for surveillance.
The one-sided and secretive nature
of the FISA process, combined with the lack of disclosure to criminal
defendants, encourages these abuses. As our amicus
brief in Mr. Osseily’s case explains, courts must give defendants access to
FISA materials consistent with due process, as Congress anticipated when it
enacted FISA.
While the courts must do more
to uphold the rights of defendants subject to FISA surveillance, Congress also
has a responsibility to reform the statute to make clear that, whenever the
government relies on FISA in a criminal prosecution, defendants have a right to
review the applications and orders that led to the surveillance.
The government’s surveillance
system, which has long been used to wrongly target Muslims, racial minorities,
and others, requires fundamental reforms. Both the courts and Congress must now
do their part to ensure that Americans’ rights are protected.