Hawkeye Reporter

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Ranking Member Dick Durbin (D-Ill.) have called on the Department of Justice (DOJ) to revise its current procedures regarding congressional attendance at Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR) proceedings. This request comes as Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire in April next year.

The procedures in question were first established by the Biden administration in November 2024 and have continued under the current administration. According to Grassley and Durbin, these rules hinder congressional oversight and are not consistent with Section 5(d) of the Reforming Intelligence and Securing America Act (RISAA).

In a letter to DOJ, Grassley and Durbin stated: “The FISC Procedures, as drafted, comport with neither the plain language nor the spirit of RISAA, and raise numerous separation of powers concerns. As the Chairman and Ranking Member of the Senate’s primary committee of jurisdiction over the Foreign Intelligence Surveillance Act, we are troubled by the Department’s lack of transparency and failure to engage meaningfully with our committee as these procedures were developed. We request that the Department amend the FISC Procedures to comply with the Constitution and RISAA.”

RISAA was signed into law in April 2024. It requires DOJ to allow select members of Congress and designated staff to attend FISC proceedings for oversight purposes. However, since November 2024, DOJ has required members of Congress and their staff to agree to certain conditions before attending these proceedings.

Some policies outlined by DOJ include restrictions such as barring members from sharing information with other lawmakers or their staff, limiting requests for information from participants in FISC proceedings, permitting DOJ staff to remove congressional observers at any time at their discretion, capping how many observers can attend at once, prohibiting both a member of Congress and their designated staff from attending together, and banning note taking during proceedings even though classified notebooks are permitted for congressional staff.

Section 5(d) of RISAA specifically mandates that certain members of Congress and designated staff be allowed access to any proceeding held by either FISC or FISCR. This provision was included in RISAA's reauthorization language for Section 702 in order to ensure effective legislative oversight.