FISA is an unconstitutional mess that weakens national security and threatens civil liberties.
The FISC’s creation, even for the modest purpose originally envisioned, was a mistake, an overreaction to the spy scandals of the 1960s and 1970s. And in Washington’s signature blend of confusion and inertia, the FISC’s portfolio has been drastically expanded even as it has repeatedly shown itself to be pointless at best and often dangerous.
The acquisition of intelligence is and has always been a security imperative, dating back to General Washington and our War for Independence. It is also a textbook political responsibility, in the sense of being committed to the political branches of government.
The conducting of intelligence operations is left to the executive branch since the inception of constitutional governance, a political responsibility is one assigned to both political branches: the presidential administration in carrying it out and the Congress in underwriting, regulating, and overseeing it.
The Trump–Russia fiasco launched by the Obama-era intelligence services reaffirms that executive intelligence operations must be subjected to searching scrutiny.
Intelligence is not fit for judicial management. As the Supreme Court expressly recognized (in its 1948 Chicago & Southern Air Lines ruling), intelligence is an innately political function. The most significant decisions a body politic makes are the ones about its security. If a society is to be free and self-determining, those decisions must be made not by politically unaccountable judges but by the elected officials—the president and Congress—answerable to the Americans whose lives are at stake.
Aggressive congressional oversight would be significantly more effective than the FISC system. The judiciary is not institutionally competent to oversee intelligence operations.
Congress has investigative power and other superior tools for reining in executive excess. And Congress is constitutionally responsible, along with the president, for national security. The courts have no such responsibilities, much less the ability to carry them out. Their duty is to provide an independent forum for redressing governmental abuses—not potentially to participate in those abuses. Perversely, inserting the judiciary into intelligence operations ratchets up due-process rights for anti-American foreign operatives, gives executive misconduct the patina of court approval, and incentivizes the intelligence agencies to obstruct inquiries by the people’s representatives—the Congress that created those agencies and funds them to the tune of over 80 billion taxpayer dollars every year.
And now, in the Trump–Russia debacle, the FBI has been caught doing exactly what the well-intentioned but irresponsible “wall” of the mid ’90s was designed to prevent: pretextually using FISA to conduct a criminal investigation in the absence of a crime. Except it was done not to further national security but to interfere in an American political campaign.
While the FISC’s orders in December stress the FBI’s many misrepresentations, the court fails to mention the inconvenient fact that the Carter Page surveillance applications were appalling on their face, and the court signed off on them anyway. Perusing the redacted versions that have been made available publicly, one sees that the government agents gave the FISC no basis to believe that the FBI was relying on sources who had any direct knowledge of the allegations undergirding their sensational claim that the Trump campaign might be engaged in a cyber-espionage conspiracy with the Kremlin to influence the 2016 election. The bureau relied on the now-discredited former British spy Christopher Steele. Even by his own account, Steele’s information was based on hearsay multiple layers removed. The FISC let it pass when the FBI risibly sought to corroborate Steele with a media report (for which the bureau implausibly claimed Steele was not the direct source). When FBI officials sheepishly acknowledged that Steele had been removed from the investigation because he was leaking to the media (though they nonetheless continued relying on his unverified claims), the FISC just kept signing off on the warrants. The highly intrusive surveillance begun weeks before the election continued for nearly a year into Trump’s presidency.
No surprise, then, that the FISC wants to move on from the Page surveillance to haggling over how to improve the FISA system. No surprise that it has brought in David Kris, who is sure to vouch for the system’s splendor while focusing laser-like on the FBI’s malfeasance, gliding by the FISC’s own shoddy performance.
There is a telling vignette about the Trump–Russia investigation. In March 2017 House testimony, the FBI’s then-director, James Comey, conceded that he did not brief the investigation to the congressional “Gang of Eight”—the senior bipartisan leadership of both chambers and their intelligence committees. His preposterous rationale was that the matter was too sensitive. Of course, the point of having the Gang of Eight is to make sure that Congress can perform its constitutional duty to check executive national-security operations, to ensure their propriety and prudence. In stark contrast to this silence vis-à-vis Congress, the FBI and the Justice Department anxiously described their probe to the FISC, again and again. They did so confident that tough questions would not be posed by senior lawmakers—Republicans stunned by the use of FISA to investigate a political campaign, or Democrats mindful that what’s done to the goose can be turned on the gander. In the FISA process, executive officials knew that their applications were apt to be approved with little or no examination. They also knew that, in the unlikely event that FISA’s top-secret carapace were ever breached, they would be able to claim that their investigation must have been proper because a prestigious, specialized United States court approved it four times.
FISA is a terrible system built on an unconstitutional foundation. It foists political functions on the judiciary, indulges the fiction that judges are institutionally competent to oversee foreign counterintelligence operations, undermines national security, and does not meaningfully safeguard the civil rights of Americans. Counterintelligence is a political obligation that requires intense congressional oversight, not illusory judicial oversight. There is no mending FISA. It should be ended.
End the FISA | National Review
