FISA Is Not Law-Enforcement – It’s Not Interference with Justice Department Independence for White House to Ask for FISA Information

In my earlier post, I explained that the Obama camp is disingenuously responding to revelations that, during the presidential campaign, the Obama administration conducted an investigation, including wiretapping, against Trump associates and perhaps Donald Trump himself. As I elaborated, one avenue of response is to conflate the Justice Department’s two missions – law-enforcement and national security. We can see this strategy playing out in the New York Times coverage of the controversy.

According to today’s Times report, a Trump official said that White House counsel Donald F. McGahn II is “working to secure access” to what is believed to be “an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates.” Presumably, this means the Trump White House is seeking to review the Justice Department’s applications for Foreign Intelligence Surveillance Act (FISA) surveillance of Trump associates, and perhaps Trump himself, from June and October 2016, including any orders issued by the FISA court – as my post explains, it has been reported that the Obama Justice Department’s June application was denied, but its October application (which apparently did not name Trump) was granted.  

The Times report continues (the italics are mine):

It would be a highly unusual breach of the Justice Department’s traditional independence on law enforcement matters for the White House to order it to turn over such an investigative document.

Any request for information from a top White House official about a continuing investigation would be a stunning departure from protocols intended to insulate the F.B.I. from political pressure. It would be even more surprising for the White House to seek information about a case directly involving the president or his advisers, as does the case involving the Russia contacts.

After the White House received heavy criticism for the suggestion that Mr. McGahn would breach Justice Department independence, a different administration official said that the earlier statements about his efforts had been overstated. The official said the counsel’s office was looking at whether there was any legal possibility of gleaning information without impeding or interfering with an investigation. The counsel’s office does not know whether an investigation exists, the official said.

To re-emphasize what I explained earlier: a FISA investigation is not a “law-enforcement matter” or “case.”

A law-enforcement matter is a criminal prosecution. That is the mission in which there should never be any political interference because it involves the strictly legal matter of whether there is evidence that penal statutes have been violated. In such a situation, White House intrusion would be political interference in a proceeding that is essentially judicial in nature, involving the potential removal of liberty from a citizen.

National security surveillance is not a judicial proceeding by nature. The point is not to remove a person’s liberty – the focus is not the citizen and his rights at all. National security surveillance is about the political responsibility (i.e., the duty assigned to the political branches in our constitutional system) to protect the national security of the United States against threats from foreign powers. This function is not judicial in nature. There was no judicial role in it at all until 1978 when Congress, in the post-Watergate era, enacted the constitutionally dubious FISA law.

Let’s assume that, after nearly 40 years, FISA is irrevocably part of our system. It did not turn a presidential national security duty into a judicial proceeding. It imposed on the exercise of the president’s national security power a layer of judicial oversight, in order to ensure that Americans were not subjected to electronic surveillance and other searches in the absence of probable cause. Significantly, underscoring the fact that we are talking about national security and not law-enforcement, in FISA the probable cause showing is proof that the target is acting as an agent of a foreign power, not proof that a crime has been committed.

Again, not only was there no judicial role in national-security surveillance until 1978; even after FISA was enacted, administrations of both parties insisted that the president maintained constitutional authority under Article II to direct surveillance without judicial authorization. The FISA Court of Review (the appellate court in the FISA system) appeared to endorse this proposition in a 2002 opinion (“The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.[Footnote omitted.] … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”)

I point this out not to wade into the constitutional argument over the president’s authority to conduct surveillance without judicial warrant. I am simply emphasizing that national security surveillance is a presidential function, not a judicial proceeding. The point of conducting FISA surveillance is not to build criminal cases; it is to enable the president to carry out his personal executive duty to protect the United States against foreign threats.

Consequently, it is specious to claim that, if the White House asks to see FISA court applications and orders, this would be a form of political interference in the law-enforcement mission of the FBI and Justice Department.