No to ‘FISA Reform’
Senators Paul and Lee, their progressive allies, and the Trump supporters they’ve hoodwinked would make us vulnerable to terrorists without fixing FISA.
Thanks to Senators Rand Paul (R., Ken.) and Mike Lee (R., Utah), as well as an amen chorus of Trump loyalists in the House, the president seems poised to fulfill one of the fondest dreams of Clinton and Obama Democrats: Government policy that regards international terrorism as a mere crime, a law-enforcement issue to be managed by federal judges rather than a national-security threat from which the officials Americans elect must safeguard our country.
I doubt the president realizes these ramifications of declining to reauthorize three PATRIOT Act security measures that are set to expire. Successfully camouflaging themselves as “FISA reformers,” Senators Paul and Lee have steered the president toward exploiting the imminent expiration as a way of holding the FBI accountable for FISA abuse.
In truth, the senators’ agenda predates the Trump era, and it would do nothing to fix what’s actually wrong with FISA. Their aim is to dismantle the post-9/11 intelligence-based approach to counterterrorism, a strategy prudently adopted by President Bush, who recognized that when our most immediate threat is jihadist mass-murder attacks, prevention should take precedence over prosecution. “FISA reform” is a shrewd way for them to accomplish this objective because it appeals to the president’s vanity — his most destructive blind spot.
See, the libertarian senators have always opposed intelligence-based counterterrorism on philosophical grounds that they root in the Constitution. They are wrong, though their sincerity is not to be doubted. As I’ve related over the years (see, e.g., here and here), the distortion of the Fourth Amendment Paul has long championed (and to which Lee seems adherent) bears little resemblance to the Fourth Amendment as written and originally understood. If adopted, it would be a boon to both foreign terrorists and domestic criminals.
Washington’s reluctance to court this potentially catastrophic outcome has long frustrated libertarians, as have the facts that jurisprudence and the terrorist threat have lined up against them. But in recent years, things have started swinging in their favor.
For one thing, Paul, Lee, and their ilk have forged an alliance with progressives, who regard jihadism (er, I mean, “violent extremism”) as a global law-enforcement issue, fit for management by internationally coordinated judicial processes, and who favor an extension of American constitutional protections to foreign operatives — including anti-American terrorists. In the Obama years, these strange bedfellows found an administration equally disposed against the Bush-era counterterrorism approach.
Then, there was the post-9/11 record of intelligence-agency envelope-pushing and deceit that eroded public trust — e.g., the Bush administration’s controversial warrantless-wiretap and forcible-interrogation programs; the Obama CIA’s hacking into the Senate Intelligence Committee’s computers (and falsely denying it had done so); Obama’s director of national intelligence’s lying to Congress about the massive collection of Americans’ telephone metadata; and the blatant politicization of intelligence after the Benghazi massacre.
Finally, there was the Supreme Court’s 2018 Carpenter ruling, which pivoted away from seemingly settled jurisprudence that a person does not have a constitutionally cognizable privacy interest in business records that are the property of a third-party service provider. The Court’s 5–4 decision in Carpenter (written by Chief Justice John Roberts, joined by the four-justice liberal bloc) held that the government needs a probable-cause judicial warrant to obtain “cell-site location information” — phone-company records that reveal a person’s physical movements over a given period of time.
This concatenation has already yielded results for Paul and Lee. For example, the government’s telephone-metadata program, the need for which was never compellingly justified, has been mothballed. Further, many foreign-intelligence operations in which the judiciary should have no involvement have nonetheless been brought under the FISA court’s supervision.
Now, “FISA reform” has offered Lee and Paul the chance to accelerate their agenda’s implementation. What it lacks as a means of keeping America safe, it makes up for in legerdemain.
See, the president and his most ardent supporters do not actually want to overhaul the Foreign Intelligence Surveillance Act of 1978, which created the FISA court. What they want is accountability for the FISA abuses committed by American intelligence agencies in connection with the 2016 presidential election. For President Trump, all politics is personal, and this matter is the most personal of all: the FBI’s exploitation of FISA powers to spy on his campaign, hamstring his administration, and fuel the Mueller investigation, all of which led to his impeachment.
To describe President Trump as angry that no official involved in those 2016 hijinks has been prosecuted understates the matter. He is apoplectic, as are his most ardent supporters. Grasping this, his allies in Congress and on the airwaves grouse that “no one has been held accountable.” In truth, the officials who ran the Carter Page FISA surveillance — and who deployed informants in a futile effort to ensnare Trump operatives — have been both purged and subjected to duly humiliating inspector-general reports. Yet that is not enough for the Trump camp, which wants criminal prosecutions just like the ones to which Trump-campaign officials were subjected. The president is dismayed that none have been forthcoming, despite the fact that his Justice Department has been conducting a criminal investigation for about a year.
Senators Paul and Lee may be wrong about counterterrorism, but they’re not dumb. They realized that if they could persuade the president that “FISA reform” was really about holding the FBI accountable for the Trump–Russia collusion shenanigans, they could achieve a major roll-back of post-9/11 counterterrorism policy — the project they were working on long before Donald Trump sought the presidency. So that’s what they’ve done, and they’ve swept the president’s supporters along for the ride. In their rhetoric, which has seeped into the press reporting on the matter, “FISA reform” has become a rally cry for holding the rogue FBI accountable.
But here’s the thing: The FBI and its intelligence-bureaucracy collaborators executed their plan by misleading the FISA court in violation of the existing FISA rules. There is no “reform” of the statutory scheme that can prevent such a thing. There is no “reform” of the statutory scheme that can hold a rogue accountable. If your objection is that being fired is not enough, and that prosecution is necessary for accountability, only an indictment can accomplish that, not a change in the law.
That becomes very clear if we focus on the actual targets of what is absurdly being called “FISA reform.” Notice that the “reformers” avoid talking about the three provisions that are scheduled to expire if not reauthorized by Monday (March 15). That’s because they are utterly unrelated to the abuse of FISA surveillance authority that occurred in the Trump–Russia scenario — viz., the incumbent government’s misrepresentations to the FISA court, which duped the judges into authorizing electronic surveillance of the opposition party’s political campaign despite the lack of probable cause to believe that campaign surrogates were clandestine agents of Russia.
It is important to grasp this: Real FISA reform is not on the table. Over the last several days, as negotiations in Congress have broken down, one has heard Trump supporters say, “Let FISA die,” because they’ve been fooled into thinking that if the president signs what’s inaccurately called “an extension of FISA,” there will never be accountability for FBI officials who abused their authority.
It is not true. Not even close.
FISA surveillance (the kind to which the Trump campaign was subjected) will not die if the three provisions lapse. A failure to reauthorize them will not prevent Americans, such as Carter Page, from being falsely framed as foreign agents. The only things that will die are investigative tools that help our government monitor actual clandestine operatives, such as alien jihadists plotting against our country.
As I have previously detailed, the three tools at issue are: (a) roving wiretaps, which allow agents to continue monitoring, say, a terrorist who uses burner phones to try to defeat surveillance; (b) “lone wolf” authority, which allows agents to monitor a foreigner who appears to be involved in terrorism without evidence tying him to a known terrorist organization; and (c) the court-authorized collection of business records — a power long unremarkably exercised by criminal investigators (and which, if reauthorized, would no longer permit intelligence agents to engage in the controversial bulk-collection of telephone metadata).
As should be obvious, these three tools have nothing to do with FBI accountability. They have nothing to do with the bureau’s infamous “Crossfire Hurricane” probe. Indeed, they have very little to do with FISA — and nothing to do with the Russia-related malfeasance that comes to mind when Paul, Lee, and Trump supporters rail about “FISA reform.” These are PATRIOT Act provisions. Though they are being threatened under the pretext of “fixing” FISA, they were enacted nearly a quarter-century after the FISA statute. They are labeled “FISA” only because Congress happened to insert them into the FISA sections of the United States Code.
These three provisions were enacted with “sunset clauses,” meaning they must be periodically reauthorized by Congress. Congress has reauthorized them, repeatedly, because they help protect us from terrorist attacks. Their value is so plain to see that they should not be subject to sunset clauses at all — the clauses should have been removed, with the proviso that Congress could always amend them (as lawmakers have done with the business records provision) or even repeal them if truly egregious abuses occurred.
Nevertheless, they are subject to sunset clauses, and will lapse Monday if Congress fails to act. Consequently, the political left and the Paul–Lee libertarians opportunistically seized on that deadline as a chance to demand more “reform” that would further erode intelligence-based counterterrorism — increasing the extent to which foreign counterintelligence efforts are subject to court control and made to resemble judicial proceedings.
President Trump came into office promising to be tough on terrorism in a way President Obama was not. Most of his supporters are instinctively against the Obama-era counterterrorism approach, which shied away from even the word terrorism, and which mulishly denied Islamist terrorism’s ideological underpinnings. Most Trump supporters do not actually think of counterterrorism as a law-enforcement issue to be managed by the same judiciary that reverses Trump’s border-security and immigration-enforcement measures at every turn.
So why are they backing FISA “reform”? Because they’ve been hoodwinked into thinking it is a way to hold the FBI accountable for the Trump–Russia caper. But it is not. Again, the only thing “letting FISA die” on Monday would accomplish is the loss of counterterrorism tools that promote national security — exactly the kind of thing Trump supporters would have sworn their candidate would never permit if elected president.
The FISA reform that Senators Paul and Lee want, and that their progressive allies support, is the opposite of real FISA reform. The fundamental problem with FISA is the FISA-court system. As I’ve recently noted in National Review’s print edition, that system transfers control of national security against foreign threats to the judicial branch, which is insulated from political accountability; the Constitution, to the contrary, assigned this duty to the political branches, which answer to the American people whose lives are at stake.
The “reformers” aim further to solidify judicial authority over intelligence collection. They tell you their goal is to protect Americans from being abused the way Carter Page was; but their reforms always end up extending protections to aliens, including those who are outside the United States and should thus be considered outside the FISA court’s jurisdiction. What’s more, if you’re worried about FBI abuses, the FISA court makes them more likely. As we saw with Page, the FBI deceived the FISA court to get its warrants; when called on the carpet, it then told everyone its surveillance must have been proper because it was green-lighted by federal judges. The bureau used the veneer of court approval as license to claim that Page — and by extension, the Trump campaign — was part of a Russian influence operation.
If we really wanted to reform FISA, we would be wise get the courts out of foreign-intelligence collection and find a better way of overseeing the activities of the intelligence agencies — beefed up congressional oversight, not a secret court. And while I maintain that no act of Congress can hold rogue officials accountable (see, e.g., the Constitution’s prohibition against bills of attainder), I have proposed a reform that would actually address the FBI’s FISA abuse: Congress could take the foreign-counterintelligence mission away from the FBI, have the bureau stick to crime-fighting, and create a new agency to handle domestic security against foreign threats — an agency that would be subject to Justice Department supervision and congressional oversight.
If we tried it my way, the nation would continue to get the security benefit of counterintelligence measures. If we try Paul’s and Lee’s way, we will lose that benefit and exacerbate the basic problem of judicial involvement in counterintelligence operations, all for the promise of “accountability” that these self-proclaimed “reformers” can’t actually deliver.
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