Magazine March 23, 2020, Issue

End the FISA

Senator Lindsey Graham holds a copy of a report on the Steele dossier at a Senate Judiciary Committee hearing on Capitol Hill in Washington, December 11, 2019. (Erin Scott/Reuters)
It’s an unconstitutional mess that weakens national security and threatens civil liberties

In December 2019, the Foreign Intelligence Surveillance Court upbraided the Federal Bureau of Investigation over its serial deceits in persuading the tribunal to issue warrants to monitor Carter Page, who served in 2016 as a Trump-campaign foreign-policy adviser. The FISC’s four-page directive, issued by Rosemary Collyer, the FISC’s then-presiding judge, came on the heels of a voluminous report compiled by Justice Department inspector general Michael Horowitz, after a multiyear inquiry into investigative irregularities in the bureau’s Trump–Russia probe.

Horowitz lambasted the FBI, specifically identifying 17 instances of misrepresentations to the court. These included the alteration by a bureau lawyer of a key document: a communication in which the Central Intelligence Agency had informed the FBI that Page, whom the bureau was depicting to the court as a clandestine agent of Russia, was actually a CIA informant. Seizing on the IG report, Judge Collyer scalded the bureau for its shocking misconduct and demanded answers about what remedial measures it was taking, and why the court should have any confidence that the Page surveillance applications were not part of a longstanding pattern of deception.

The court’s public order was extraordinary in light of its customary secrecy—FISC hearings and decisions are highly classified. The startling rebuke was surely merited. Yet the FISC’s tack of focusing on the cure rather than dwelling on the pathogen deftly deflected attention away from the court’s own performance. 

So did the follow-up. Collyer, a Bush 43 appointee to the federal district court in Washington, D.C., quietly resigned at the end of December as the FISC’s chief judge, nine weeks before her scheduled departure, citing health reasons (though she planned to remain on the FISC and the district court). By statute, FISC judges are appointed by the chief justice of the Supreme Court, choosing from the pool of federal district judges. To replace Collyer as presiding judge, Chief Justice John Roberts quickly named Judge James Boasberg, an Obama appointee whom Roberts had placed on the FISC in 2014. 

Astoundingly, Boasberg appointed David Kris as an adviser to the FISC in examining the FBI’s handling of the Page surveillance. Until 2011, Kris had served as the Obama Justice Department’s first chief of the National Security Division (the DOJ unit that shepherds the FBI’s surveillance requests through the FISC). After leaving the government, he became a fixture on MSNBC and the Lawfare blog, home to anti-Trump champions of the notion that Trump was an agent of Russia and that the FBI had performed with integrity. In that incarnation, Kris zealously defended the bureau’s investigation of the Trump campaign; derided a congressional probe of that investigation led by Representative Devin Nunes (R., Calif.), the then-chairman of the House Intelligence Committee; and confidently predicted that, once more facts about the FISC-authorized surveillance were revealed, Page would be inculpated and the FBI vindicated. 

There is no doubting Kris’s relevant experience, but he is also a partisan. That the court would retain him, when the controversy was politically fraught and his analyses had proven spectacularly wrong, was mind-boggling. There is also no doubting Kris’s entrenchment in the FISC system. His selection signaled that Washington’s agenda does not include questioning the wisdom of that system, despite its suspect history and constitutionality. Indeed, as the FBI has scurried about to respond to the court’s order and proclaim its intention to implement sweeping reforms, none less than Attorney General Bill Barr has described the judicially managed system for gathering foreign intelligence as a “critical tool” for national security. 

Barr is a stellar attorney general in his second tour of duty. (He was AG in the final years of the Bush 41 presidency.) And unlike the vast majority of government attorneys, he came to the job steeped in intelligence matters, having worked as a young lawyer at the CIA (he originally envisioned a career as an agency expert on China). With due respect, though, what is critical for national security is the intelligence community’s capacity to collect information covertly, analyze it, and use it to address threats posed to the United States by foreign powers—particularly hostile regimes and international terrorist networks. This capacity has not been advanced by the legal regime imposed on intelligence gathering for nearly half a century. Nor has adapting to this regime made intelligence agencies more sensitive to civil rights. 

To the contrary, 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 “necessity of procuring good intelligence is apparent and need not be further urged,” remarked General George Washington while commanding the Continental Army. “Upon Secrecy, Success depends in Most Enterprises . . . and for want of it, they are generally defeated.” The acquisition of intelligence is and has always been a security imperative. It is also a textbook political responsibility, in the sense of being committed to the political branches of government. 

That is an observation worth pausing over. While the FISC’s creation was controversial, it is rare nowadays to hear proposals for scrapping it. The inevitable rejoinder to any such suggestion is that the proponent seeks an imperial, uncheckable executive. Nothing could be further from the truth. While the conducting of intelligence operations is left to the executive branch (and has been 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 contention here is not that the president should get carte blanche. Intrusive government actions taken under the guise of safeguarding the nation against foreign perils have a high chance of suppressing our liberties. The Trump–Russia fiasco launched by the Obama-era intelligence services reaffirms that executive intelligence operations must be subjected to searching scrutiny. Politicized excesses dating back to the John Adams–era Alien and Sedition Acts demonstrate that our own government, under the pretext of protecting us, can do more damage to republican democracy than anything Russia or a similarly treacherous foe can do. 

No, my argument for abolishing the FISC is twofold. First, 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. 

Second, aggressive congressional oversight would be significantly more effective than the FISC system. The judiciary is not institutionally competent to oversee intelligence operations. That is not a knock on the courts. It is a recognition that they have a different and vitally important role to play in addressing governmental overreach. 

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. 

The FISC was created by FISA, the Foreign Intelligence Surveillance Act of 1978. This was the post-Watergate era, when Democrats controlled both houses of Congress by substantial margins. The impeachment articles adopted by the House Judiciary Committee that drove Richard Nixon to resign the presidency included allegations that he had used the FBI to conduct political spying on the pretext of national security and also had tried to use the CIA for similar purposes. The Left’s Vietnam revisionism recast domestic terrorists as the victims of lawless surveillance tactics. In their appeasement of the Soviet Union, Democrats regarded Cold War covert operations as gratuitously provocative. Determined lawmakers undertook to pare back what they saw as the “imperial presidency,” whose powers of unilateral action had been expanded by the 20th century’s wars and America’s emergence as a global superpower.

The purpose of FISA seems modest now: to provide a modicum of due process to people inside the United States, particularly American citizens, who were targeted for national-security monitoring on suspicion of acting as foreign agents. Because the purpose of such monitoring was not to collect evidence for court prosecution, warrants were not required and judges had no involvement. In marked contrast, for the surveillance (i.e., wiretapping, bugging, and physical searches) of persons suspected of committing crimes, judicial warrants based on probable cause were mandated, under the Fourth Amendment and statutory law. 

The ground began to shift in 1972, when the Supreme Court required judicial warrants for domestic terrorism cases, on the theory that violence by American radicals was bound up with constitutionally protected dissent. But the justices took pains to say that they were not addressing foreign threats to national security; with such threats, it was assumed that the president maintained inherent constitutional authority to conduct surveillance. This echoed Congress, which had excluded foreign threats from its 1968 legislation regulating electronic surveillance, expressly observing that obtaining foreign intelligence was a “constitutional power of the President.”

FISA blew by this caveat. The law created the FISC and purported to require that, before commencing domestic surveillance to collect foreign intelligence, the executive branch—specifically, the FBI and the Justice Department—would have to obtain judicial authorization based on a showing of probable cause that the subject was acting as a clandestine foreign agent. We must say “purported to require” because the judiciary’s authority to manage what Congress and the courts had repeatedly acknowledged was a constitutional power of the president was a contentious issue. 

As we often saw when President Obama adopted most of the Bush-Cheney counterterrorism measures he had campaigned against as a candidate, Democrats tend to be strident opponents of the “imperial presidency” right up until the moment they find themselves in the Oval Office. Both President Jimmy Carter, in signing FISA for electronic surveillance, and President Bill Clinton, in agreeing to its expansion to cover physical searches, committed to cooperate with the FISA system. They insisted, however, that the executive’s constitutional power to order monitoring without court approval remained undiminished. Of course, if the decision is ultimately the president’s, the court’s rulings on warrant applications are merely advisory. That itself is constitutionally problematic, because the jurisdiction of federal courts is limited to cases and controversies suitable for judicial resolution. Unlike courts in many countries, our judicial branch is not empowered to issue opinions that are merely advisory.

Yet this is how things stood for nearly a quarter century. The Justice Department maintained, as a matter of abstract principle, that the president could conduct surveillance unilaterally, but it adhered to FISA to avoid a constitutional dispute. For its part, the FISC ruled as if its decisions were final but avoided a major dispute by granting nearly 100 percent of warrant applications. 

This led to complaints that the FISC was a rubber stamp. The accusation, though, was part misconception and part exaggeration. Since national security is a duty of the executive, not the judiciary, it’s only natural that the court would defer to the intelligence professionals on the matter of foreign threats. If the agents responsible for protecting the country have sketchy but frightening intelligence that, say, al-Qaeda is plotting a mass-murder attack, what judge would want to risk thwarting their investigation? The vast majority of the time, when there is some evidence of foreign threats, the judges should green-light surveillance. Nevertheless, the FBI and Justice Department do engage in dialogue with the FISC about warrant applications (these exchanges are classified because of the subject matter, and “ex parte”—i.e., only the government officials and a judge are present—because covert surveillance requires that the target not be alerted). If the court is uncomfortable with a scant probable-cause showing, the government will often voluntarily withdraw the warrant application for that target. Statistically, that does not count as a ruling denying the application, but it is a denial in effect. 

That said, there is no gainsaying that an extremely high percentage of warrant applications have been granted. FISA ostensibly provides due process, but the reality is that the FISC relies heavily on the executive branch. The court thus knew it was enmeshed in a key political function and that its authority was questionable. This bred a natural reluctance to second-guess. That reluctance was all the stronger because the FISC lacks any practical means to be an effective check. There is no adversarial process in FISA, as contrasted with standard judicial proceedings in criminal-justice cases. In the latter, once criminal charges have been filed, due process allows the attorneys for a suspect to inspect the representations made by government officials in warrant applications, probing their sufficiency and truthfulness. There is nothing like this in FISA. Therefore, the court had no capacity to conduct such investigations on its own. Congress, in the meantime, deluded itself that, by delegating its oversight role to the judiciary, it had achieved adequate insurance against executive overreach.

The Soviet Union’s collapse in late 1991 led to an irrational end-of-history exuberance—the conceit that Western democracy and its institutions, very much including the rule of law, had prevailed and would inevitably be universally adopted. When jihadists bombed the World Trade Center just 14 months later, the obvious existence of international terrorist networks backed by anti-Western state sponsors was not permitted to spoil the mood. The Clinton administration was adamant that it would regard terrorism as a crime problem, not a national-security challenge fit for a forcible response. 

In this zeitgeist, Justice Department officials were agitated over the possibility that rogue criminal investigators might abuse FISA, using national-security surveillance powers to steer criminal investigations when they could find no probable cause of a crime. To prevent this abuse, Clinton’s Justice Department imposed “the wall”—internal procedures that effectively discouraged the FBI’s foreign counterintelligence division from sharing information with its criminal division and federal prosecutors. The idea was to avoid using FISA surveillance to taint criminal prosecutions. 

But the consequences were catastrophic. Most obvious was the inability of our security agencies to map the jihadist threat. Less apparent but just as real: This transmogrification of a security threat into a legal morass, in which terrorist prosecutions (usually after attacks occurred) were prioritized over counterintelligence measures (meant to stop attacks from occurring), made the FISC the wall’s guardian. There was no empirical evidence of FISA’s being invoked pretextually, and there is nothing inherently illegitimate about the use of lawfully collected foreign intelligence to bolster criminal prosecutions. Yet the wall created just the kind of hypertechnical legal complication that a judicial tribunal could sink its teeth into. It seemed to validate the FISC’s existence.

Three things changed everything. The 9/11 attacks exploded the serene illusion that America was confronted by a mere crime problem; the Lawyer Left’s tireless crusade against aggressive Bush-Cheney counterterrorism provoked a judicial backlash; and the revolution in telecommunications technology eviscerated core assumptions about limitations on FISA’s reach.

The shocking murder of nearly 3,000 Americans, in Pearl Harbor–style sneak attacks on iconic economic, military, and political targets, fleetingly brought into sharp relief the absurdity of pretending that international terror networks backed by anti-American state sponsors could be quelled by indictments and judicial proceedings. In marshaling a forcible response that prioritized military and intelligence operations designed to prevent future attacks, President George W. Bush reasonably asked whether his administration was doing everything that could be done on a proper war footing. 

Logically, this prompted two internal administration proposals. First, the wall needed to come down. It was legally unnecessary and reckless from a security perspective. And it had also made investigators miss at least one thread of the 9/11 plot—FBI headquarters having directed its criminal investigators not to assist intelligence agents in hunting suspected terrorists who, just weeks later, plowed American Airlines Flight 77 into the Pentagon. Second, the president’s inherent authority to order national-security surveillance of potential foreign enemy operatives in wartime should not be subordinated to the constitutionally dubious FISA process—at least not in all instances. President Bush endorsed both changes. The Justice Department issued a directive that razed the wall, relieving the FBI of blinders that had artificially compartmentalized vital information streams. Moreover, the president authorized a warrantless surveillance program, directing that agents were free to monitor American-based suspected terrorists who were believed to be communicating with overseas terror networks. 

The FISC rebelled. Our armed forces had been dispatched to Afghanistan; the intelligence agencies were scrambling to map jihadist cells seeking to reprise the 9/11 atrocities; and, with the PATRIOT Act, Congress endorsed the dismantling of barriers to intelligence sharing. Yet the FISC tried to re-erect the wall by judicial fiat. The court was finally overruled by the Foreign Intelligence Surveillance Court of Review—the first-ever decision by the appellate court that had been created by FISA 24 years earlier. The higher court also pointed out that if the president’s authority to collect intelligence against foreign powers stemmed from Article II of the Constitution, it could not be repealed by FISA or any other statute.

This is rudimentary constitutional law. Yet it counted for nothing when, in late 2005, the New York Times published a story, based on illegal classified leaks by intelligence officials, revealing that Bush had authorized the National Security Agency to conduct warrantless surveillance of suspected cross-border terrorist communications. It should have been clear that the president had the constitutional authority to do this, and that the action was a measured response in a state of war provoked by a massive enemy attack that prompted a congressional authorization of military force. 

Nevertheless, the NSA program got entangled in the Democrats’ political and philosophical opposition to Bush’s determination that the Clintonian law-enforcement approach to counterterrorism was folly. The opposition was led by progressive academics—many of the same ones who later fell silent as President Obama unilaterally directed targeted assassinations and military interventions. Warrantless surveillance joined a bill of particulars that included detentions of enemy combatants at Guantanamo Bay, trials by military commission, the PATRIOT Act’s enhancement of counterintelligence investigative powers, and enhanced interrogation (including forcible waterboarding) of high-value terrorist detainees—all framed by the Left and many libertarians as a betrayal of the rule of law.

Concurrently, the telecom evolution to digital technology—supplanting the analog technology regnant when FISA was conceived—created a new quandary. The evolution was a boon to the NSA, which now could sweep up hundreds of millions of communications globally and screen them through sophisticated algorithms. But it also meant that vast quantities of innocent communications, including those of Americans, were being captured (even if they were unlikely to be monitored). Further, even if non-Americans outside the United States were conversing by phone, email, or text, the Internet’s architecture zoomed the digital packets of these communications through transmission hubs in the United States—meaning that they now fell within the physical jurisdiction of the federal courts.

In the Lawyer Left’s anti-Bush fervor, it was only a matter of time until courts began ruling that the new technology brought surveillance of even wholly foreign communications into the FISA framework. This morphed FISA into something that its pioneers had foresworn. It had been conceived as a modest due-process grant to U.S.-based Americans caught up, perhaps inadvertently, in the intrigues of foreign intelligence services; it was now being reimagined into a sort of global Fourth Amendment. Court-enforced privacy protections could be extended to aliens outside our borders—including those plotting against Americans.

The legal battles over warrantless surveillance and the court’s oversight jurisdiction threatened to shut down essential foreign intelligence operations—during wartime, no less. The beleaguered Bush administration decided that the better part of valor was to cut a deal with Democrats. The NSA program was brought under FISC supervision. FISA was also amended so that extensive overseas intelligence operations against foreign targets—the kind FISA was not supposed to intrude on—were also brought under nominal court supervision. 

It is a fig leaf: Unlike traditional judicial warrants, or even FISA warrants as originally conceived, these surveillance warrants were not to be based on particularized suspicion of individual suspects. Under the revamped FISA, the FISC puts its imprimatur on sweeping executive-branch intelligence-collection programs, implicating hundreds of millions of people. Of course, it is all classified, so there are no actual judicial proceedings involving claimants whose purported rights have allegedly been violated. But the Left gets to pretend that foreign security threats really can be quelled by legal process and court orders.

Except the emperor has no clothes. The FISC has repeatedly approved collection programs only to have the Justice Department and NSA confess that communications are being collected in violation of the court’s instructions—an inevitable outcome. Technologically, it is a cinch to capture heaps of communications; the challenge for the NSA is sifting through the heaps for the relevant morsels without invading the privacy of Americans suspected of no wrongdoing. It’s not a matter of bad faith; it’s just very hard to do.

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. 

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