Imagine the game gets underway. The first pitch is a little outside but, instead of calling ball-one, the umpire coaches the catcher to move his glove a little closer to the plate. The puzzled batter swings at the next pitch, grounds it to short, and is astonished to see the paunchy second-base umpire shifting to his right to field the ball, while the shortstop tries to coach his footwork. That goes about as well as you’d expect: The ball slowly dribbles into center field. Seeing this, the batter rounds first to cruise in for an easy double . . . except the first-base ump suddenly calls him out for purportedly running out of the baseline. The utterly confused hitter stomps back to the visiting dugout. The home-team defenders wink at the vaguely embarrassed umps. The next batter steps up to the plate, looking just as puzzled as the first, realizing he has no clue and no chance.
This turns out to be a special league. The games are never televised. The sports journos don’t report on them. We only know about this one because a secret videotape leaked. When we watch it, we can only shake our heads and say, “Whatever this is, it isn’t baseball.”
FISA is like that. Whatever it is the judges are running, it’s not a judicial proceeding. More like what Fielding Melish would call “a travesty of a mockery of a sham . . . ”
The FISA follies continued this week with what is being portrayed as the latest shiner for an FBI that is running out of eyes to blacken. Justice Department inspector general Michael Horowitz’s new scathing report, following on his previous scathing report, describes his office’s audit of FBI warrant applications submitted by the Justice Department to the secret court created by the 1978 Foreign Intelligence Surveillance Act (FISA). In large part, Horowitz’s new report is an audit of what turns out to be a flawed internal audit — the FISA process being so thoroughly flawed that even its self-policing mechanisms are a joke.
The result, at the risk of further overplaying my baseball analogy, is that the Bureau is batting nearly a thousand (or, depending on your perspective, nearly .000). Virtually every one of the over 70 applications the IG selected for scrutiny — a representative sampling of five years’ work by eight busy FBI field offices going back to 2014 — was rife with errors: assertions that were unverified and apparently unsupported, flat-out inaccuracies, and typographical errors so blatant they elucidate that no one is reading these applications very carefully.
And that’s really the point. My meticulous NR colleague David Harsanyi is quite right to point out that, on the record the Bureau and the Justice Department have compiled going back to the Carter Page-surveillance fiasco that undergirded the Trump–Russia collusion caper, what we are seeing cannot be dismissed as mere sloppiness. It smacks of corruption. But that said, the elephant in the room remains the FISA court. Not that it is corrupt, but that it is institutionally unfit for the oversight role FISA contemplates. That invites corruption and sloppiness.
Baseball would not work, it would not be baseball, if the umpires and the defense were the same team. Yet that is the FISA arrangement. The judges are still in their robes, just like the umps in my outlandish analogy still wear their blue suits, maintaining the appearance of independence. But they are not performing a judicial role. They can’t be. Foreign-intelligence collection is not a judicial function.
FISA makes the court an advisory participant. Judges, instead, are supposed to be objective arbiters. In our system, they are not permitted to give advisory opinions to the political branches. Their role is to stand impartial between two adversaries — one of whom is often the government. Their role is to decide only cases and controversies based on concrete factual records of alleged wrongdoing — including wrongdoing by the government’s political branches.
In FISA, though, the judges’ job, like the FBI’s, is to make the system work. The system is national security, not due process. The system’s objective is to prevent clandestine foreign agents from undermining American interests through espionage, terrorism, and other hostile operations. In essence, the FBI defenders and the judicial umps join forces to prevent the other team from scoring. As a constitutional matter, this is really the FBI’s responsibility. The FISA court is incorporated to festoon the investigations with due-process bunting, like those red, white, and blue banners draped along the stadium façade on Opening Day. But the judges’ participation in the system is an anomaly. It is not the judges’ fault. The fault lies with Congress’s ill-conceived FISA system.
To be clear, national security, of which foreign-intelligence collection is a vital part, is a political function. That does not mean it is “politicized” in the partisan sense. It is a political function because the Constitution assigns it to the political branches of government. Protection against foreign threats, including how much indulgence to afford aliens and Americans who collaborate with hostile foreign powers, is a determination to be made in the first instance by the president and Congress, who answer to the American people whose lives are at stake.
We intentionally insulate the judiciary from political accountability and, derivatively, from the functions of the political branches. When the state allegedly violates an individual’s rights, the judge’s job is to referee between that individual and the state, not to participate in the latter’s operations against the former.
“Wait a second,” you say, “in criminal cases, we let police go unilaterally to judges to get warrants all the time.” Apples and oranges. Criminal proceedings are not intelligence-gathering exercises to thwart hostile foreign powers that threaten our governing system. Criminal proceedings are our governing system in action.
In the criminal-justice system, judges ensure that the state complies with the Fourth Amendment before searching private property and seizing evidence. If the judge denies the warrant, the search is legally forbidden. Not so in national-security matters. Presidents reserve the right to monitor foreign agents even if a judge refuses authorization — and even the right to do so without asking. There is controversy about this (recall the battle over President Bush’s warrantless-surveillance program), but it is a respectable constitutional position that presidents of both parties have taken.
In the criminal-justice system, moreover, a judge’s issuance of a warrant is essentially a preliminary ruling that the government has shown probable cause that a crime has been, or is being, committed, and that incriminating evidence of that crime will be found by the search or surveillance. That’s a classic judicial determination, different in kind from assessing whether there is probable cause that a person is acting as a clandestine agent of a foreign power such that monitoring him might produce useful intelligence.
Furthermore, I described the issuance of a criminal search warrant as a “preliminary” ruling because, unlike in FISA, such warrants are virtually always followed by a prosecution in court. Once charges are filed and arrests are made, the case is assigned to a judge who, almost always, is not the same judge who issued the warrant. The defense gets discovery. With it, defense lawyers and their investigators conduct a thorough investigation of the warrant — something the judge who issued the warrant had neither the resources nor the institutional responsibility to do. The defense is then permitted to challenge the legality of the warrant by revealing any errors or misrepresentations the government agents made in applying for it.
That is, in the criminal-justice system, the original issuance of the warrant is just a first phase. In the next phase, the pretrial hearings, the warrant is subjected to the grueling adversarial process, and a more searching ruling about its legality will be made by the presiding judge. Fully aware that this will eventually happen, the FBI knows it must be very careful about what it puts in a warrant application; and the judge to whom the warrant application is first made must be exacting in reviewing it. People perform much better when they know their work is going to be checked and graded.
That does not happen in FISA. What’s more, it should not happen. If a foreign power is threatening the United States, it is the job of the political branches to meet and overcome that threat. We’re not talking about a mere drug deal or stock fraud. If a president, based on what the intelligence agencies convinced him was solid information, believed al-Qaeda was plotting to explode a dirty bomb in an American city, or that China was hacking the Pentagon’s servers, it would be the president’s national-security duty to stop the foreign attack. It would be an abdication for the president to stay his hand just because a judge, who is not constitutionally responsible or politically accountable for national security, opined that probable cause was lacking.
That does not mean the executive branch should get carte blanche. Far from it. Unchecked power is power that is sure to be abused. The point is that the FISA court is not the right oversight mechanism. Congress has to come up with a better one — a bipartisan congressional body that has political responsibility for both national security and the rights of Americans; that has the incentive to prevent intelligence powers from being exploited to interfere in our political process; that has the clearances, resources, and competence needed to subject the executive’s surveillance activities to meaningful scrutiny; and that can refer any malfeasance it uncovers to the Justice Department for possible prosecution in court.
Because courts are neither institutionally equipped to check the executive’s work nor politically accountable for its shoddiness, their participation in foreign-intelligence collection is not an effective check against executive misconduct. To the contrary, it makes the abuse of laws governing intelligence collection more likely. Think about it: How many times did we hear the FBI’s apologists say the Carter Page warrants must have been on the up and up because four different judges signed off on them? We now know the warrant applications were rife with improprieties. But when the Bureau and the Justice Department were stonewalling, they relied on the judicial imprimatur to rationalize withholding information from congressional investigators.
When we finally get past the coronavirus crisis, FISA reform will be a hot topic again. Unfortunately, most of the reformers on Capitol Hill would make matters worse. Some, such as GOP senators Rand Paul and Mike Lee, will not concede that, because some Americans and aliens inside our country collaborate with our foreign enemies, there is a place for foreign-intelligence surveillance inside the United States. They think we can just rely on the normal criminal-justice system — and if that means we can’t collect vital intelligence about the activities of foreign powers, so much the better, since that information will only be used by progressive interventionists to justify more “endless wars.”
Other reformers know that we need to gather foreign intelligence, not only overseas but also in our own country, where we are most vulnerable. Yet, they do not accept the Constitution’s prudent divide between political and judicial authority. They figure we’re a “rule-of-law society,” so why shouldn’t the courts have the last word on everything, including national security against foreign threats? For them, FISA is a noble experiment, and if it’s not quite working as intended, surely it’s not necessary to throw the baby out with the bathwater.
There will be no meaningful reform of foreign-intelligence surveillance until we are willing to confront two uncomfortable facts. First, there is nothing about being an expert in law that makes a judge institutionally competent to participate in, much less oversee, intelligence collection and analysis. The only proper role of the federal judiciary in this thicket is as a forum for lawsuits by people whose rights have been violated by government intelligence agents. In FISA, Congress has thrust judges into the position of participating in the violations.
Second, there is nothing about being expert in the conduct of criminal investigations that makes an agent competent to conduct foreign-counterintelligence operations. For many years, I saw what seemed to be the wisdom in having the FBI wear both hats. I’m no longer convinced. That’s a topic for another day. For now, it’s enough to say that a real reform debate would not only have to wrestle with the inappropriate role FISA assigns to the judiciary. It would have to ask whether the FBI’s mission should be pared back to the criminal investigations at which it excels. Domestic security against foreign threats remains vital, and that mission needs rigorous congressional oversight. But the question of who should execute it needs to be on the table.