There Are No Checks and Balances: FISA Must Be Scrapped

The biography of Hernán Cortés recounts an early incident in his expedition when he smashed native idols in full view of thousands of armed warriors. The idols, the natives believed, commanded them to endure grotesque sacrifices including the blood of their children on the Aztec altars.

The natives at first overwhelmed with grief and terror as they gazed upon their prostate deities. But no earthquake shook the island; no lightning sped its angry bolt; no thunder broke down the skies. The sun still shone tranquilly, and the ocean, earth, and sky smiled untroubled. The natives ceased to fear gods who could not protect themselves, and without further argument, consented to exchange their ungainly idols.

The priests of the secret cult of domestic surveillance have led America to a point where a similar demonstration is necessary.

We have for years now sacrificed our precious liberties on promises that our national security is in mortal danger without spying. A court overseeing spying under the Foreign Intelligence Surveillance Act (FISA) performs a purely ceremonial role in this process. From the publicly available information, these tools appear to be abused more often than they prove useful for any legitimate law enforcement purpose.

Spooks broke into Senate computers to keep tabs on a congressional investigation of intelligence abuses. Other spies used their electronic snooping to check on their lovers. And in 2016, the FBI lied to the FISA court to spy on Carter Page, a figure associated with the Trump campaign.

It’s an assembly line of constitutional violations. The FBI spied on so many Americans that it had to hire contractors to help with the workload. The FBI failed to keep records on why it conducted warrantless spying on many Americans using these powerful tools. Countless thousands of intimate details flowed through the screens of FBI agents and contractors. Since the FBI doesn’t bother keeping good records on why it spies on Americans, we may never know about the worst abuses.

America has been paying this awful civil liberties price in allowing our government to spy on us without any real safety in exchange. These are false idols that provide no more protection than the ones Cortés smashed 400 years ago. An internal review of the Bush administration’s warrantless program—called Stellarwind—found it resulted in few useful leads from 2001–2004, and none after that.

A Freedom of Information Act lawsuit yielded this stunning revelation:

[The FBI general counsel] defined as useful those [leads] that made a substantive contribution to identifying a terrorist, or identifying a potential confidential informant. Just 1.2 percent of them fit that category. In 2006, she conducted a comprehensive study of all the leads generated from the content basket of Stellarwind between March 2004 and January 2006 and discovered that zero of those had been useful.

In 2014, the Washington Post reported that an analysis of 225 cases inside the United States since September 11, 2001, showed bulk spying on Americans “has had no discernible impact on preventing acts of terrorism.”

We now have one case, and apparently only one case, in which the FISA process has been laid bare to the public: The surveillance of Carter Page.

The Page investigation began with a lie. James Comey, the director of the FBI at the time,  certified to the Foreign Intelligence Surveillance Court that the bureau believed Page was a foreign agent and that it needed permission to spy on him because there was no less-intrusive way of doing it. What’s an example of a less-intrusive means? How about Carter Page’s open letter addressed directly to Comey? The letter offered a voluntary and unconditional interview with the FBI about the topic Comey later obtained a warrant to investigate. Comey didn’t care about Page. He wanted a window into the Trump campaign. So he ignored the offer.

Unfortunately, the FBI has seduced completely the forces that are supposed to provide oversight and review of its actions.

How many hearings did House Intelligence Committee Chairman Adam Schiff (D-Calif.) hold in the last six months to review the bombshell inspector general report on the Carter Page FISA abuse? Zero. How many hearings did he hold on this recent inspector general report on the FBI’s mass-abuse of these spying tools? Again, zero.

Under Schiff’s conception of things, the Justice Department and its subordinate FBI are far too vulnerable to be subject to oversight by the only force on earth that dares to challenge it—the president.

So Schiff is proposing legislation to turn our terrifyingly powerful Department of Justice into a quasi-independent agency that bows to no man, not even the president. Indeed, the Ukraine impeachment farce, which originated from the CIA, kept scrutiny away from the intelligence community as numerous intelligence scandals broke.

The FISA court itself is no better. In spite of the OIG report catching the FBI red-handed in repeated lies to the FISA court, the court has done nothing to punish the liars. We’re told we can trust FISA because the anonymous bureaucrats who abuse it will be punished. But when they’re not punished, we’re told to trust it anyway.

In its latest opinion, the FISA court depressingly buys FBI Director Christopher Wray’s lie that the entire Carter Page FISA abuse is a simple matter of carelessness that can be corrected by improving checklists and adding steps to the process. Will a new checklist stop a future Kevin Clinesmith from fabricating evidence to keep a warrant going against a political target? No, of course not. Without consequences for lies, no checklist in the world can safeguard the process. Perhaps if they changed typefaces?

FISA is a false idol. If it stopped terrorism or caught bad guys, the spooks who drool over our most intimate data would produce evidence showing that. More than 1,000 of these warrants were issued in just one year alone. How many of those spying operations resulted in convictions? Certainly not the Carter Page surveillance. So what was the point?

One clue may be this Real Clear Investigations article exposing the FBI for passing sensitive investigation material back to Christopher Steele, the subcontractor of Trump’s 2016 election opponent, during the height of the election season. Later that same month, Clinton could be seen cryptically taunting Trump about his supposed Russian ties during a debate.

Three of the FISA authorities will sunset in the next few days which provides a rare opportunity to reform or scrap these frequently-abused tools. It’s a rare moment of opportunity in which the powerful intelligence agencies must seek the approval of their constitutional masters. Congress should not let this opportunity pass without curtailing these government spying abuses.

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About Adam Mill

Adam Mill is a pen name. He is an adjunct fellow of the Center for American Greatness and works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. He graduated from the University of Kansas and has been admitted to practice in Kansas and Missouri. Mill has contributed to The Federalist, American Greatness, and The Daily Caller.

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