Law & the Courts

Mr. President, the Problem Is FISA, Not the Lack of Hearings on FISA Warrants

(Leah Millis/Reuters)
Don’t undermine good causes with bad arguments.

‘So, you’re now the patron saint of FISA warrants!”

That’s from a text I got first thing Tuesday morning from a friend who had seen me favorably quoted on a cable-news show. Such is the vertiginous age of Trump that, overnight, a 30-year detractor of the Foreign Intelligence Surveillance Act can become its guardian.

What I’d like to be is the patron saint of caution against undermining good causes with bad arguments.

Over the holiday weekend, I happened to be flipping through the newspapers — if you can “flip” on an iPad — and learned that President Trump was complaining that the FISA court (the Foreign Intelligence Surveillance Court, created by FISA in 1978) had not held evidentiary hearings before issuing the controversial warrants to eavesdrop on Carter Page, a former Trump-campaign adviser.

As is his wont, the president lodged his protest on Twitter, on this occasion quoting my friend Tom Fitton of Judicial Watch:

Report: There were no FISA hearings held over Spy documents.” [sic]It is astonishing that the FISA courts couldn’t hold hearings on Spy Warrants targeting Donald Trump. It isn’t about Carter Page, it’s about the Trump Campaign….

Before we get to FISA, let’s pause to note that the president is right about the last point. Many apologists for the FBI, including some congressional Republicans, continue to claim that the Obama administration (and its Justice Department holdovers after Trump’s inauguration) did not engage in political spying on the Trump campaign. The FISA warrants, they maintain, were directed solely at Page, who had disengaged from the campaign before the surveillance commenced. That’s nonsense.

First, the FISA warrants would have enabled investigators to scrutinize Page’s stored communications throughout the time he was associated with the campaign and before. More important, here, after an explanation of Russia’s cyber-espionage operations against the 2016 campaign, is what the FISA warrant applications expressly allege:

[Two redacted lines of text] the FBI believes that the Russian Government’s efforts are being coordinated with Page and perhaps other individuals associated with Candidate 1’s [i.e., Donald Trump’s] campaign.

The FBI and Justice Department patently considered Donald Trump a subject of the Russia investigation. They rationalized denying this on the fig leaf that he was technically not named in the file by which the investigation was formally opened or as the target of the FISA warrants. But that is form over substance. As we’ve previously explained, Trump was a de facto subject of the investigation because the FBI and Justice Department well knew that an investigation of his campaign and its advisers was necessarily an investigation of him. That is why one senior FBI official advised former director James Comey that it would be disingenuous to tell the president he was not a suspect (which the then-director nonetheless proceeded to do).

As long as there has been a “collusion” investigation, I do not believe there has ever been a time when the president was not a subject of it, regardless of what he was told to the contrary. That is why, for example, there has been so much attention paid to the question whether he knew in advance of the June 2016 Trump Tower meeting that his son, Don Jr., arranged with Kremlin-connected people in hopes of scoring campaign dirt on Hillary Clinton.

When the president says the FISA warrants were all “about the Trump Campaign” — in essence, about him — he is entirely correct. That is why it is outrageous that the warrants were secured on the basis of such flimsy “evidence,” in violation of Justice Department and FBI standards prohibiting the presentation of unverified information to the FISA court.

Now, about that presentation of flimsy evidence.

The president could not be more wrong that the lack of a hearing before the issuance of FISA warrants is “astonishing.” In point of fact, it is not only standard; it is the way it should be, as contended in my own weekend tweets. I started with this:

Folks, there generally are no hearings on warrants, and you don’t want there to be because the four corners of the warrant application must state the probable cause. If they don’t, the judge should reject the application, not hold a hearing.

FISA law mandates that the written warrant application, sworn to by an agent and approved at the top levels of the Justice Department and (usually) the FBI, must state probable cause.

In criminal investigations, a warrant application to eavesdrop, search premises, or make an arrest must establish probable cause of a crime. In national-security cases under FISA, to the contrary, the objective is not to build a criminal case but to divine information about the actions and intentions of foreign powers. Thus the probable-cause showing is different; it calls for proof that the target of the warrant is acting as a clandestine agent of the foreign power.

Under FISA, the judge is supposed to make the probable-cause assessment by reading the warrant application. If the application is weak in terms of corroboration, the judge is supposed to reject it, not supplement it with facts developed at a hearing. Besides being time-consuming (meaning critical intelligence could be missed during the delay), a hearing would involve a factual presentation that had not been approved by top national-security officials, as FISA requires. A hearing would also be a pointless exercise because it would not be adversarial — the target of the warrant application is not represented by counsel and the judge is not supposed to play that role. In sum, a hearing would only muddy the probable-cause finding.

Thus, I elaborated:

In nearly 20 yrs as a prosecutor, and hundreds of warrants, I never had a hearing to get a warrant. I had judges tell me ‘no,’ or tell me I needed to beef up this or that allegation with more solid evidence. But never a hearing.

To be sure, I was a criminal prosecutor, and the applications I presented to judges were for criminal warrants, not FISA orders. But I worked on national-security cases, litigated FISA warrants, and, at the FBI’s request, reviewed some draft FISA-warrant applications that related to international-terrorism investigations I was running (before the proposed applications were passed along to the Justice Department lawyers in charge of the process). Consequently, I was very familiar with the process and the FISA statute’s warrant provisions (which use the term “an order approving electronic surveillance” rather than “a warrant” — see Section 1804 of Title 50, U.S. Code, where the relevant part of FISA is codified).

There is a critical difference between criminal and FISA warrants. Since a warrant will not issue in a criminal case unless the judge believes there is probable cause of a crime, it is assumed that when a warrant is issued, an indictment and prosecution will follow, with all the due process that entails. That means that all who are involved in the process — the agents and prosecutors seeking the warrant, and the judge who makes the probable-cause determination — know that their work will be checked. The warrants and underlying applications will be provided to the defense in discovery, and if they were lawlessly issued — e.g., because the application presented false information, or because the application did not present enough solid information to meet the probable-cause standard — the defendant will have remedies. Evidence could be suppressed or charges dismissed.

By contrast, FISA proceedings — which, to repeat, are intelligence-gathering exercises not intended to build criminal cases — are classified. The only due process that the target of the warrant will ever get is the judge’s perusal of the application. There is no expectation that the allegations will ever see the light of day. It is up to the FBI and the Justice Department to honor their standards; it is up to the judge to ensure that the warrant is based on sufficient proof and satisfies FISA’s other requirements. That’s why I added this tweet:

The [president’s] argument should be that DOJ & FISA judges have a higher duty to follow the rules and scrutinize applications because, unlike criminal proceeding where there’s eventual discovery and hearings, that’s all the due process warrant target will ever get.

This is part of why I have always been a FISA naysayer. As I have written many times over the years, FISA represents the post-Watergate Democratic Congress’s overreaction to the era’s domestic-spying scandals.

Foreign-intelligence collection is not a case or controversy; it is not a judicial proceeding by nature. Writing for the Supreme Court in Chicago & Southern Air Lines v. Waterman S.S. Corp., Justice Robert Jackson explained that intelligence-gathering was constitutionally committed to the political branches of government because such national-security measures should be designed and policed by the government officials accountable to the people whose lives are at stake. Judges, he added, were not institutionally competent to participate, and it was inappropriate for them “to sit in camera in order to be taken into executive confidences.”

That is as true today as it was 70 years ago when Jackson wrote those words.

Nevertheless, out of understandable distrust of executive power and dismay over Congress’s seeming impotence in checking executive excess, an alliance of liberals and libertarians has labored to judicialize intelligence-gathering. The predictable results are that judges are reluctant to deny surveillance that executive officials claim is essential for national security, no matter how skimpily rationalized; the executive branch hides the ball from Congress; and executive officials, when called on their abuses, wave the judicial warrant around like a get-out-of-jail-free card.

It’s a terrible system. Thus, the last of my weekend tweets on the subject:

Should add, fwiw, I do not like FISA, & have always thought judges should not be involved in foreign intelligence collection. Exec w/ cong’l oversight would be more accountable, and it’s not a judicial process so harms judiciary to be seen as a rubber stamp.

The problem here is not the lack of evidentiary hearings before warrants issue. It is that FISA does not effectively police executive abuses of power and may in fact make them more likely. If Congress does not assert itself by conducting effective oversight, demanding accountability, and pressuring for the removal of executive officials who abuse their authority (and impeaching them if necessary), then surveillance powers are certain to be abused — for reasons including political advantage.

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