Do We Even Need A FISA Court?

I&I Editorial

If you aren’t already overdosed on irony, apparently an inexhaustible natural resource in Washington, where the “party of the people” seeks to oust arguably only the second populist president in American history, it’s worth mulling the 1970s origins of the Foreign Intelligence Surveillance Act Court.

In the wake of Watergate, and Richard Nixon’s use of federal intelligence and law enforcement to hound his political enemies (in the spirit of his immediate predecessor, Lyndon Johnson), Democratic Sen. Frank Church’s committee found that U.S. covert agencies were engaged in the work of the devil, such as preventing Communists from gaining power in Latin America and the Middle East. Part of the supposed cure was the establishment of an irregular, secret court to facilitate the evaluation of classified materials when the FBI or intelligence community requested warrants to spy on U.S. citizens acting as foreign agents and threatening our national security.

As Kyle Peterson of the Wall Street Journal recently described on Fox News what he called the “irreparably broken” process, whose genesis was a bill written by Sen. Ted Kennedy, “I mean, you have the government going to this court and saying we would like to surveil this person … there’s not an adversarial process; there’s nobody standing up for his rights in front of the court. The judge signs off on it – no accountability whatsoever.”

It is this dangerously dysfunctional, undemocratically insulated institution that is responsible for the country being put through the two-year agony of the Robert Mueller investigation of what we now know to be baseless suspicions of Russian collusion by Trump operatives.

A court set up to prevent our intelligence and law enforcement agencies from being used for politicized purposes actually facilitated exactly that.

Hiding Evidence From A Hidden Judiciary

Last month, the FISA Court issued a rare public statement, scolding the FBI for bamboozling it with errors and omissions in seeking to spy on Trump campaign consultant Carter Page. And last Thursday, a FISA Court order was declassified that found that two of the FBI’s surveillance application renewals were “not valid” because of the Bureau’s “material misstatements and omission” rendering them “insufficient predication to establish probable cause to believe that Page was acting as an agent of a foreign power.” A high-ranking FBI national security attorney was actually found to have tampered with an email for one of the applications to make it seem Page had not been utilized by the CIA as a source.

The court isn’t finished probing the matter, and further evidence supplied by the FBI may reveal that additional FBI applications are invalid too.

The civil liberties aspects of this are nothing small. The federal government, through an agency wielding its greatest law enforcement powers, violated a politically active American’s Fourth Amendment rights. And the motivation, as we know from internal FBI communications, was crassly and purely political: to stop the man who would be elected president, with his strong anti-establishment agenda. When prosecutor John Durham is finished with his investigation, and the full rot is drilled down into, we may find top officials ending up behind bars.

For the sake of historical vindication, it’s worth pausing to note that among those with the foresight to vote against the FISA law in 1978 – though with varied reasons – were future Democratic Speaker of the House Tom Foley, future House Majority Leader and Democratic presidential candidate Dick Gephardt, future House Judiciary Committee chairman and ranking Republican on the House Intelligence Committee Henry Hyde, current GOP Sen. Chuck Grassley, former California Rep. Bob Dornan, and then-Rep. Jack Kemp.

There is so much trust in the FBI, National Security Agency, and other federal agencies with the ability to surveil – perhaps warranted until recent years – that the FISA Court has amounted to a veritable warrant factory. The effective appeals court available after a denial of a warrant is the three-judge Foreign Intelligence Surveillance Court of Review. But since the FISCR’s establishment in 1978, it has come into session a grand total of twice.

There may as well be no FISA Court at all considering its rubber stamping of most everything that comes before it; like the old saw that a grand jury would indict a ham sandwich, this hidden panel of unknown judges trustingly gives government permission to spy on any animal, vegetable or mineral it suspects.

And if the FISA Court isn’t acting as a real court, it would be better to discontinue the charade and let the executive branch be its own official judge – with Congress looking over its shoulder.

Naturally, politics would seep into such oversight. But politics is preferable to pretense.

— Written by Thomas McArdle

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