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What About the FISA Court?

Judicial pre-authorization for our national security bureaucracies’ actions has taught them dysfunctional practices and created a secret body of law that has undermined Americans’ civil liberties.


- December 10th, 2019
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The Justice Department’s inspector general has concluded that, although officials of the FBI, the Justice Department, and the CIA made copious “mistakes” in their four requests to the Foreign Intelligence Surveillance Court to spy on Donald Trump’s campaign and presidency, those officials did nothing that warrants punishment. They mostly followed procedures and, after all, the court considered their motions good enough to grant them.

In so concluding, Inspector General Michael Horowitz rejected the charge that those “mistakes,” including silence about the known falsehood of the supporting evidence and the omission of exculpatory evidence, had been intentional, and hence a fraud on the court. Horowitz stated that looking at these officials’ intentions—i.e., noticing the variance between their claim and the facts behind it—was not his job.

Given that such scrutiny is quintessentially the inspector general’s job, his retreat into what we must now call the Comey-Clinton crouch—detail the misdeeds, relabel them, and decline to do anything about them—means that the deep state has closed ranks.

Hence, any remedy must come from above, and must inflict rough Roman justice.

Alas, such a remedy must now include eliminating the judiciary’s role in intelligence gathering. That means recognizing that the Foreign Intelligence Surveillance Act of 1978 (FISA) was a bad idea all along, an irresistible temptation to cover abusive surveillance with the cloak of pretend-legality.

Possibly the saddest fact about the intelligence deep state’s conspiracy against Trump is that at least some of the federal judges who sit on the FISA court apparently have been and continue to be part of it.

Since the quality of judges’ judgments so depends on what is presented to them being “the truth, the whole truth, and nothing but the truth,” judges are notoriously jealous guardians of their court’s integrity. But since early 2017, first a trickle, then a flood of evidence has become public that at least four of the FISA court’s approvals of surveillance warrants were based essentially on political lies. And yet, no judge has hauled in any bureaucrat to face sanctions for contempt of court. Nor have there been complaints from the judiciary to the Justice Department.

At the very least, the judiciary’s involvement in national security surveillance has been no barrier to abuse. Almost certainly, it has fostered abuse. Essentially, the 1978 law legalized Watergate.

Prior to 1978, surveillance of all kinds for national security purposes was done strictly on presidential authority. Although unquestionable a priori, its value and propriety were subject to substantive critique ex post facto.

Executive agencies, chiefly the FBI, had become uncomfortable with exercising this responsibility because some leftists whose contacts with Communist forces the FBI had monitored during the Vietnam War had sued the agents. Congressional staffers close to the ACLU proposed a compromise: A new law would ensure that all acts of intelligence surveillance would be unchallengeable because they would be pre-authorized by a secret court. The standards for approval of operations, however would prevent targeting of “U.S. persons.”

In 1978, given my role on the staff of the Senate Intelligence Committee, the American Bar Association (ABA) invited me to debate the subject with professor Antonin Scalia of the University of Chicago Law School.

Requiring judicial authorization for an executive action in pursuit of national security, I said, is an unconstitutional obstruction of the president’s power as commander in chief. Scalia agreed but pointed out that the president—the bureaucracies, in fact—supported involving judges because he realized the obstruction is theoretical rather than practical: the secret court having no basis for judging what is or is not required by national security would simply give the agencies the confidence to do their jobs.

I agreed, countering that the confidence would be problematic: although strictly speaking the court could confer only a procedural imprimatur, in practice that would shield the bureaucracies—and the president—from having to defend the substantive value of any act of surveillance.

FISA’s promise to bureaucrats—secret pre-authorization and virtual immunity from criticism—proved impossible to resist. Had FISA existed in 1972, Nixon’s “plumbers” would easily have gotten a warrant to get everything they wanted out of the DNC secretly. Their application need only have cited the McGovern campaign’s plentiful links to North Vietnam and the Communist world.

By the 1980s, the intelligence committees were receiving requests to place authorization for FBI infiltration of domestic groups “of national security interest” within the FISA system. After the 9/11 attacks, when the intelligence agencies were trying to expand their authority in order to excuse themselves for failing to use adequately the tools they already had, they found in FISA a convenient cover for not explaining to Congress, or to the public, how new authorities would make the country safer.

Quite simply, FISA became the cover for a vast expansion of political surveillance under cover of law. It would have been strange indeed if officials driven by extreme partisanship, and their friendly judges, had not used it as they have since 2016.

Any “reform” of FISA could only consist of new lists of standards to be applied for granting warrants. But the 1978 standards ran into some 40 pages. The standards elaborated after 2001, especially Section 702, run in the hundreds. Parchment barriers all.

Judicial pre-authorization for our national security bureaucracies’ actions has habituated them to dysfunctional practices and fostered the creation of a secret body of common law regarding civil liberties. Thus has it perverted the American legal system and poisoned American politics.

Repealing FISA will not fix the problems it has caused, but it would stop making them worse.

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