[Author’s Note: This week’s release of the Justice Department Inspector General’s report on FISA abuse (among other investigative irregularities) in the FBI’s Trump-Russia investigation has spawned a welcome public discussion of the 1978 Foreign Intelligence Surveillance Act. What follows is an excerpt from my recently released book, Ball of Collusion, which undertakes to explain why I have long been a naysayer of FISA, which I first encountered in the early 1990s as a prosecutor handling terrorism cases — one of rare contexts in which FISA surveillance evidence sometimes seeps into criminal prosecutions. The discussion that follows is a prelude to book’s account of Obama-era FISA surveillance abuses that have received little public attention (in contrast to FISA surveillance in the Trump-Russia investigation, currently in the spotlight). These abuses prompted the Foreign Intelligence Surveillance Court, in October 2016, to castigate the intelligence community for its institutional “lack of candor.”]
A little background on surveillance. Non-Americans situated outside our country do not have Fourth Amendment privacy protections. Consequently, the overseas collection of intelligence about them, including their communications, occurs with no judicial supervision. It is carried out under Executive Order 12333, which has been amended several times since being issued by President Ronald Reagan in 1981.
Other foreign intelligence collection implicates the Foreign Intelligence Surveillance Act. At its inception over forty years ago, FISA was chiefly designed to shield Americans inside the United States from such surveillance unless a court could be shown probable cause to believe they were complicit in clandestine activities on behalf of a foreign power. With congressional expansion of FISA over the last decade, the law is now also geared to mitigate the invasive consequences of sweeping global surveillance, made possible by the revolution in telecommunications technology.
This latter protection is not very effective. In part, this is because the underlying concept is dubious: Namely, the notion that people who interact with foreigners who are outside U.S. jurisdiction have a reasonable expectation of privacy despite being well-aware that the latter could be under surveillance — whether by U.S. or other intelligence services. There is also the problem that technological capabilities are advancing more rapidly than government’s capacity to apply privacy principles rooted in the Constitution and other federal law, in particular, the tenet that there must be grounds for suspicion before communications are seized and searched.
Prior to 1978, foreign intelligence collection was strictly a political responsibility: part of the national security duties the Constitution assigns to the political branches, with the executive carrying it out, subject to congressional oversight. It was not a judicial process. In the realm of foreign threats to American interests and security, the judiciary — the non-political branch — had neither constitutional responsibility nor institutional competence.
I continue to believe this was the right way to look at the matter, and have thus always been a FISA naysayer. The best articulation of this position was posited by the legendary Robert Jackson — an icon in both the political and legal arenas, who served as FDR’s attorney general, Truman’s chief prosecutor at Nuremburg, and a justice of the Supreme Court. Writing for the Court thirty years before FISA’s enactment, Jackson opined:
The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.
But then came the Vietnam-era political spying scandals and the Watergate abuses of intelligence authority. There followed an outcry for curbs on executive surveillance powers even in the realm of foreign intelligence. As usual, the Washington cure was worse than the disease: the insertion of judicial oversight, notwithstanding the issues of institutional competence and political accountability outlined by Justice Jackson.
This prescription, FISA, had been adumbrated by the Supreme Court’s 1972 decision in what’s known as the Keith case. The justices invalidated a warrantless search carried out by the executive branch for purely domestic national security purposes — targeting three domestic terrorists who were plotting to bomb government facilities. Of course, internal threats to security — in America, by Americans — are entangled with dissent against government policy; they thus implicate fundamental liberties vouchsafed by the Constitution. That makes them saliently different from threats by foreign powers — even if those foreign powers are acting through agents situated inside the United States.
The Keith Court recognized this distinction. So had Congress a few years earlier, when lawmakers enacted the statute that governs electronic surveillance in the context of domestic criminal investigations. Nevertheless, in the post-Watergate fervor against executive power, over both proven and hypothetical abuses, a heavily Democratic Congress enacted FISA in 1978. President Jimmy Carter signed it, even though it ostensibly transferred to the judiciary significant executive authority over the monitoring of foreign threats to national security.
FISA has now been the law for over forty years. It is a bad idea not just in theory, but in practice. In the post-9/11 years, for example, the FISC went rogue, attempting — until beaten back by FISA’s appellate court — to re-erect the infamous Justice Department regulatory “wall” that impeded cooperation between intelligence and law-enforcement agents. Nevertheless, FISA is not going away; it is expanding: The judiciary is now ensconced in national security matters. This well-meaning arrangement is counterproductive. It undermines accountability: dragging the judiciary into non-judicial matters (the execution of security policy), giving executive excesses the veneer of judicial approval, and making the abuse of surveillance authority more likely, not less.
If the executive’s national security agents represent that they believe a foreign power is threatening the United States through the activities of a clandestine agent, it is only natural that a judge would be disposed to grant surveillance authority. Again, national security is principally an executive function: The courts are not responsible for it, have no expertise in it, and do not answer to the people whose lives are at stake. Would you want to be the judge who tells the FBI and the Justice Department that they lack sufficient evidence to monitor a suspected terrorist mass-murder plot? That they may not monitor a Russian cabal suspected on thin proof of undermining American elections? Of course not.
It is no surprise, then, that the FISC approves government surveillance applications at an extraordinarily high rate. That does not make the FISC a rubber stamp, as ill-informed critiques deduce. The approval rate should be very high. The court is reviewing assessments by professional intelligence analysts working for the president elected by the People to protect the nation.
Executive officials know, then, that it is highly likely the FISC will approve its applications. They also know that, unlike in criminal cases, there is never going to be a public proceeding at which their work and their representations to judges are going to be checked — counterintelligence is top secret.
Naturally, this creates the temptation to present applications that are weak or even disingenuous. In the unlikely event a judge does not approve a deficient application, it is no big deal because the surveillance would not have happened anyway. But if a court does authorize surveillance, no one will ever know; and if the surveillance somehow becomes public, the agents can claim that it was legitimate because a judge approved it — even if the agents did a shoddy job or otherwise failed to comply with their own procedures. Recall, for example, former FBI director James Comey’s amusingly circular claim that the FBI does not engage in anything as underhanded as “spying” because its “electronic surveillance” is “court ordered.”
I believe we would get more diligent performance out of the executive branch if officials were held responsible for their own investigative judgments, subject to aggressive oversight by Congress. The participation of the court allows executive officials to evade accountability. Indeed, this is exactly what has happened with the Carter Page FISA warrants.
To be sure, mine is a minority view.
Most intelligence officials and FISC judges would tell you that the FISA system is a worthy innovation that has encouraged executive intelligence officials to be more solicitous of American privacy rights. Of course, no one, myself least of all, is saying the Justice Department, FBI, and other intelligence agencies should have no one checking their work. Quite the opposite. The question is who should check their work, and the answer is Congress — the branch politically accountable to the self-governing people who must balance their interests in security and privacy. Note that the same FBI that told the FISA court about its Trump–Russia investigation took pains to conceal the probe’s existence from the congressional Gang of Eight — which would likely have been much quicker to spot and object to political spying, and to ask hard questions about the flimsiness of the stated probable cause.
It is, nevertheless, a fair counter to say that Congress’s dysfunction — its oversight muscles atrophied from decades of delegating its functions to courts and the administrative state — renders it, practically speaking, an impotent check on the executive. While lawmakers should be doing the job, courts are at least trying to do it and, many would argue, are doing it better than Congress would. Count me skeptical nonetheless. In the episode we are about to study, judicial oversight, along with conscientious fretting about it by some intelligence officials, brought Obama administration abuses to light. But of course, that was only after allowing the abuses to go on for years.
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