Without Consequences or Penalties, FISA Should Expire

Two years ago, a controversial memo first alerted the public to the politicized use of a secret court to spy on Donald Trump’s presidential campaign. At the time, most Americans—myself included—knew next to nothing about the clandestine workings of the Foreign Intelligence Surveillance Court.

Most Americans trusted that the law enforcement, intelligence, and judicial “experts” involved in the process took the utmost care with their duties and sought a diligent application of the law to protect cherished constitutional rights while keeping us safe.

After all, most Americans had defended these surveillance tools as necessary weapons in the war on terror after the attacks on September 11, 2001. The notion that such a powerful, intrusive means of collecting information from suspected foreign terrorists instead would be weaponized against a volunteer for the wrong political campaign—a private U.S. citizen—was so far fetched that it would have bordered on tinfoil hat conspiracy nonsense conceived by the deepest corners of the far Left or Right had anyone said it out loud.

That’s why, when then-House Intelligence Committee Chairman Devin Nunes (R-Calif.) issued his February 2018 memo detailing how Barack Obama’s Justice Department presented unproven political opposition research—the “Steele dossier”—as evidence to the FISA court in order to spy on Trump campaign aide Carter Page, many detractors accused Nunes of acting as a “deep state” conspiracy theorist. (The FBI, by the way, objected to the memo’s release.)

Journalists and pundits on the Left howled that Nunes was promoting a Fox News-manufactured conspiracy theory lacking veracity. “Instead of evidence, the memo engages in the same dark and misleading conspiracy theories that have characterized other efforts by President Trump’s allies to discredit the Russia investigation,” wrote New York Times columnist David Leonhardt in January 2018.

Nunes’s intelligence committee counterpart, Rep. Adam Schiff (D-Calif.), prepared his own memo to denounce the majority’s work, an official congressional document filled with distortions and outright lies. Schiff, too, accused his colleague of peddling right-wing quackery.

Some on the Right also took aim at Nunes. The late Senator John McCain (R-Ariz.) blasted the memo, accusing Nunes of doing Russian President Vladimir Putin’s bidding. David French, who had called for Nunes to resign from the House Intelligence Committee and defended the Schiff memo, said Nunes had misled the public about the FISA applications on Page. “Republicans have made serious claims of scandal and abuse. They have not yet adequately supported those claims,” French sniffed.

But the internal investigation into FISA abuse, conducted by Justice Department Inspector General Michael Horowitz, laid waste to the “conspiracy theory” wankers. Horowitz’s December 2019 report confirmed everything in the Nunes memo and more, including information about one FBI lawyer who tampered with evidence that would have exonerated Page.

Let’s reiterate again for the record what the signers—including James Comey, Andrew McCabe, Sally Yates, and others—told the court about Page: They accused him of acting as an agent of Russia: In other words, they accused him of being a traitor. And they told the court this not once but four times.

The court, comprised of federal judges handpicked by the chief justice of the U.S. Supreme Court, signed off on the warrants each time.

But after the Horowitz report revealed widespread systemic malfeasance and abuse, did anyone man up to accept responsibility? Did any public official involved in the treachery apologize to Page for nearly ruining his life? Did any journalist or pundit admit he was wrong and Nunes was right?

Did any Democrat or NeverTrump Republican confess that the Russian collusion hoax they pushed for years—a scam rooted in both the dossier and the Page FISA warrant—violated every constitutional norm and boundary and protection that they so solemnly warn Trump is destroying?

The answer, of course, is no.

In fact, when the Horowitz report was released, all the bad actors instead played a game of political hot potato, pointing fingers at everyone else. James Comey in his typical megalomaniacal fashion actually bragged that Horowitz’s findings showed the former FBI director had acted honorably and lawfully. The numerous misrepresentations to the court, Comey wrote in a nearly farcical column in December, were chalked up to “human error.” He and his corrupt colleagues, not Page or the other innocents ensnared in Comey’s scheme, are the real victims.

The secret court also refused to take responsibility. The presiding judge—rather than acknowledge her court failed to scrutinize the application during a proceeding that prohibits counsel for the accused, which therefore should demand that the court exercise the most skeptical review of any evidence—blamed the FBI for misleading FISC. Again, they insinuate that the court, not Carter Page or the Trump campaign, is the victim rather than one of the accomplices. (A new order filed this week prohibits any FBI or Justice Department official tied to the Page FISA application from appearing before the court. Big whoop.)

FBI Director Christopher Wray is more concerned with reminding the public about the “good men and women of the FBI” than with making penance for his agency’s sins. His reply to the court is filled with bland bureaucratese, but no remedy can cure the afflictions of a department plagued by arrogance and immune from accountability. An FBI agent attested that the FISA applications were “true and correct” under penalty of perjury. The Justice Department recently concluded at least two of the four applications are unlawful. Yet no perjury charges appear forthcoming.

Which leads to the ongoing investigation by U.S. Attorney John Durham into the illicit probe of the Trump campaign and other potential criminality between Election Day and Inauguration Day. It’s been 10 months since Attorney General William Barr appointed Durham to manage the inquiry; not a single charge has yet been filed.

The Republican-led Senate has completely abdicated its duty to hold the executive branch accountable. Despite weekly threats to “get to the bottom” of the scandal, Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) hasn’t held a single hearing to force a public reckoning with the wrongdoers. Instead, Graham now is negotiating the renewal of three sections of the Foreign Intelligence Surveillance Act that are set to expire on March 15. Barr wants a clean reauthorization bill with promises to handle reforms internally.

President Trump and some Republican lawmakers are pushing back.

“A.G. Barr advocating for ‘clean renewal’ of Patriot Act without any legislation to reform FISA is a disservice to @realDonaldTrump and should be roundly defeated,” Senator Rand Paul (R-Ky.) tweeted last week. “The secret FISA court should be forbidden from allowing spying on political campaigns ever again—period!”

The question of whether to reapprove any part of FISA right now is simple: No. Every institution tasked with safeguarding this process has violated the public’s trust. The FBI, the court itself, the Senate, and yes, Barr’s Justice Department have failed to restore that trust despite plenty of time and opportunity to do so.

In fact, to the contrary, the perpetrators are doing victory laps on cable news and during well-paid speaking gigs. They’re writing books and taunting the president and his supporters on social media. Some are publicly endorsing Joe Biden for president. Not only have they escaped any legal comeuppance, but they are also celebrated as heroes of #TheResistance as if to further twist the knife in the collective back of the American public.

As the Durham probe slogs on, the only way to ensure any measure of accountability is to allow the FISA provisions to expire. Perhaps then Graham finally will be forced to hold a public hearing instead of the closed-door depositions he’s reportedly conducting.

Most Americans—myself included—no longer have faith in the government and political apparatus that fortifies FISA. Republican lawmakers shouldn’t either.

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