[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.

____________________