[Congressional Record Volume 170, Number 76 (Thursday, May 2, 2024)]
[Senate]
[Pages S3309-S3310]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            REFORMING INTELLIGENCE AND SECURING AMERICA ACT

  Mr. WARNER. Madam President, I ask unanimous consent that the 
accompanying letter from the presiding judge of the Foreign 
Intelligence Surveillance Court be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             United States Foreign


                               Inelligence Surveillance Court,

                                   Washington, DC, April 16, 2024.
     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.

[[Page S3310]]

       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.

                          ____________________