Don’t Repeal FISA: A Response to Andy McCarthy
by
Andrew McCarthy (YouTube screenshot)

The Foreign Intelligence Surveillance Act (FISA) has a brief and controversial history. It was enacted in 1978 to provide secret judicial review of government intelligence surveillance of foreign agents in the United States. Since then — the government tells us — FISA has been one of the principal means by which spies’ and terrorists’ actions have been discovered and thwarted.

FISA’s recent fame has nothing to do with spies and terrorists. It provided the legal framework by which the FBI and CIA abused their powers to spy on the 2016 Trump campaign and the president’s 2017 transition. Those actions — detailed in Justice Department Inspector General Michael Horowitz’s report — were the worst abuse of power by government employees in the history of the Republic. They have created an urgent need to reform the law to prevent such abuses from happening again.

On March 15, three important parts of FISA will expire unless Congress renews them. Some liberals and libertarians have, as usual, demanded that the law be repealed rather than renewed. Some — such as House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and committee member Zoe Lofgren (D-Calif.) — are delaying reauthorization to rewrite the law extensively.

The anti-intelligence liberals and libertarians are not to be taken seriously. But when a deservedly respected legal scholar such as my good friend Andy McCarthy writes that FISA should be repealed, attention must be paid.

McCarthy’s recent article in the Washington Examiner argues that the federal government’s powers in the intelligence field have grown too large and that the public is angered by people such as Andrew McCabe, former FBI deputy director, not being prosecuted while others, such as former Trump national security adviser Michael Flynn, are persecuted for the same alleged violations of the law. All of that is exactly correct.

Where my friend goes astray is in his argument that courts such as the FISA court, on which federal judges sit to grant or deny FISA surveillance warrants, mixes national security policy with judicial decision-making and that the courts should not be in the position of making intelligence policy. Judges should apply the law, not make policy. But unless Article 3 judges have a role in limiting intelligence gathering by Article 2 executive agencies, the executive will either be too limited by law in its authority to gather intelligence or too free to possibly violate the Fourth and Fifth Amendments.

McCarthy argues that the counterintelligence mission should be transferred to the intelligence agencies, that they should be subjected to enhanced congressional regulation and oversight, and that FISA should be repealed.

That is a conclusion that cannot be drawn from the facts Andy recounts.

Repealing FISA would leave the intelligence community (IC) without legal authority, for example, to secretly intercept the emails, cell phone conversations, and text messages of suspected spies and terrorists inside the United States. They could apply for search warrants to do so from federal judges, but such warrants could only be granted on the basis of criminal activity that intelligence matters don’t often encompass. And that would retain the role of judges in intelligence activities to which my friend objects.

The FISA court has operated for decades without any serious leak of which the public is aware. Federal courts other than the FISA court might more readily leak such proceedings even if they are filed under seal.

Congressional oversight — as we have seen over the past three years — is a comprehensively unreliable tool to control the intelligence community. When people such as Rep. Adam Schiff (D-Calif.) hold the reins of the House Permanent Select Committee on Intelligence, they can be counted on only for partisan investigations, not for reining in unlawful exercises of intelligence and counterintelligence. And while Republican senators such as Richard Burr (R-N.C.), Schiff’s Senate counterpart, are content to sit silent and not open their own intensive investigations, they too cannot be relied on to oversee intelligence and counterintelligence matters.

Attorney General William Barr advocates a “clean” renewal of FISA, i.e., renewal without changing the law. The president, seeming to side with libertarian Sen. Rand Paul (R-Ky.), disagrees and favors changing the law in some manner he hasn’t described.

So what is to be done? Two things.

In renewing FISA during the next two weeks, Congress can take a strong measures to prevent the FBI and CIA (and the rest of the intelligence community) from obtaining surveillance warrants from the FISA court based on false information.

To do so, FISA should be amended specifically to require the FISA court to hold an evidentiary hearing on every application for a surveillance warrant. The purpose of the hearing, which should be defined in the new law, would be to examine the basis for the application to determine whether or not the applying agency had independently verified the information presented in the warrant, the specific information supporting the warrant application, and the facts used to verify it.

Operating on that basis, the FISA court could ensure against intelligence agencies relying solely on unverified information — which is precisely what they did in seeking four successive FISA warrants against Carter Page, a minor Trump campaign official. Those warrants were used to spy on the Trump campaign.

That amendment to FISA can be drafted easily and enacted in the reauthorization of the law this month. But that’s not all that needs to be done. The intelligence community has been overhauled three times since 9/11. It’s past time for another set of changes.

The worst change to the function of the intelligence community was the creation of the position of the Director of National Intelligence. Nearly two decades ago, when the failure to “connect the dots” (i.e., the failure of intelligence agencies to share information adequately) was blamed for 9/11, the DNI was created to solve that problem. But the DNI doesn’t do that at all well. Instead, it has become another political arm of the White House and an otherwise useless additional layer of bureaucracy.

The IC has more than enough political influence on it. The CIA director is, for example, a cabinet member. As we saw — and will see more when U.S. Attorney John Durham’s investigation is completed — Obama’s DNI, James Clapper, steered the IC to force political considerations into its products. Clapper was the link between the Obama White House and the FBI–CIA “Crossfire Hurricane” investigation into the “Russia collusion” allegations against the Trump campaign and candidate Trump.

The DNI’s functions include preparation and presentation of the president’s “daily intelligence briefing,” which should be given straight from the facts and without political influence. But the DNI lacks other real powers over the IC, such as determining their budgets. Again, its mission is only political. The DNI’s powers to oversee the intelligence community should be vested in the director of the CIA. The Central Intelligence Agency should be literally central to the nation’s intelligence activities.

The DNI should be done away with and the legal authorities of all of the intelligence agencies scrubbed to eliminate opportunities for abuse of power. There must be ways to enhance the effectiveness of the IC against the threats we face, and those should be enacted into law after serious congressional and presidential consideration.

There is no political appetite this year, nor the necessary presidential attention, to overhaul the intelligence community. If Mr. Trump is reelected, that should be among his top priorities.

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