The Flaws In FISA Revisited

Back in July, 2018, I wrote about What The Carter Page Case Tells Us About The Flaws In FISA. While researching that topic I came across an article by Judge Robert Bork in which he criticized the proposed FISA law--Bork was writing in March, 1978, before the law was actually enacted. Among other incisive comments by Bork was the observation that FISA would amount to a stay out of jail card for government bureaucrats--investigators and prosecutors. Here's the last part of my blog, in which I quote Bork in part--do yourself a favor and follow the link to his full article:

--------------------------

ADDENDUM: Since writing the above, on Monday, I've become aware that Judge Robert Bork--way back in March, 1978--wrote an article for the WSJ in which he expressed serious reservations about the very nature of the court envisioned by FISA, which was then being pushed through Congress: 'Reforming' Foreign Intelligence. Bork's views have been referenced twice by William McGurn in the WSJ, most recently on 7/23/18, Abolish the FISA Court, and previously on 3/6/17, Robert Bork and the FISA Follies. Here is a sampling of Bork's views on the proposed FISC, which appear in light of developments to have been quite prescient. The entire article is well worth the read:

Re the role of FISC judges:

"The job is managerial, not judicial, and the two should not be mixed."

"judges cannot become adequately informed about intelligence to make the sophisticated judgments required."

"The element of judicial secrecy is particularly troubling. Because it reverses our entire tradition, it is difficult to think of secret decisions as 'law' ... it would set apart a group of judges who must operate largely in the dark and create rules known only to themselves. ... it debases an important idea to term it the rule of law ..."

“the law would almost certainly increase unauthorized disclosures of sensitive information simply by greatly widening the circle of people with access to it.”

“When an attorney general must decide for himself, without shield of a warrant, whether to authorize surveillance, and must accept the consequences if things go wrong, there is likely to be more care taken. The statute, however, has the effect of immunizing everyone, and sooner or later that fact will be taken advantage of.”


----------------------------

But I didn't start this blog just to republish my own babblings. This morning, by a roundabout way, I came across a lengthy interview with Angelo Codevilla, in one part of which Codevilla (who helped in the drafting of FISA) presents a line of argument that is quite similar to Bork's--but with an especially pointed barb at the FBI (as well as Antonin Scalia). It should prove eye opening, because Codevilla addresses not only FISA but the inte world more generally. The Deep State. It will tell you a lot about how we got to where we are today.

The Rise of the Surveillance State
David Samuels: You have some real knowledge of how the American intelligence community thinks and operates, from your days as a staffer working for Senator Daniel Patrick Moynihan.

Angelo Codevilla: Senate staffer in control of the intelligence budget. My senator was the chairman of the Budget Subcommittee of the Intelligence Committee. Which means that the budgets came through him and therefore through me. And back then we had markups and we could punish those who were not forthright with us, and we did.

How do you understand the seemingly unchecked growth of this globe-spanning American surveillance apparatus, and how do you understand the danger of that apparatus being turned to domestic political purposes?

There’s always danger inherent in secrecy. And you know secrecy of course is central to intelligence operations. Secrecy most often is used not for the good of the operation, but to safeguard the reputations of those who are running the operations.

The agencies, like all bureaucracies, have always tried to aggrandize themselves, build their reputations, in order to make and spend more money. Get more high-ranking positions. Get more post-retirement positions for their people in the industries that support them. They’ve done exactly what bureaucrats in other agencies have done, neither more nor less.

But the business they’re in, which involves surveillance, is uniquely dangerous, because surveillance is inherently a political weapon. Inherently so. And there is never any lack of appetite for increasing the power of surveillance, and for increasing the reach of surveillance.

Fortunately, especially in my time on the Hill, we had pretty good resistance against bureaucratic attempts to increase the reach of government surveillance over the rest of the country.

Then along came 9/11, and congressmen, senators, who didn’t know any better, were rather easily persuaded, and for that matter Presidents—George W. Bush being exhibit number one—were very easily persuaded, that giving the agencies something close to carte blanche for electronic surveillance would help to keep the country safe. The Foreign Intelligence Surveillance Act was amended in 2008 to accommodate the practices which had evolved extralegally under George Bush, which essentially allowed the agencies to wiretap at will, so long as they claimed that this was for foreign intelligence purposes. In this regard, they claimed that what they were doing was within the spirit, if not the letter, of the Foreign Intelligence Surveillance Act, which stated that any warrantless collection of electronic intelligence, bugging and other means of collection in finding intelligence, could capture the communications of U.S. persons, only incidentally in the course of capturing the communications of foreign targets.

The 2008 amendments legalized this practice, and added the capacity of the agencies to compel communications companies to help upstream collection of emails etcetera, which would then be recorded. The act, rather the amendment, contains an even longer list of apparent restrictions on how these intercepts of Americans may be used. But these restrictions are basically for show because, essentially, once the foreign intelligence surveillance court authorized a particular operation the practical means of judicial review of what has happened, of how it is being carried out, are so complicated as to be unworkable. And besides, what the hell do judges know about the substance of these things?

Therefore, to get to the point of your question, this increased power and lax attitude conserving it posed a temptation to use these tools for the convenience of the administration in power, which was made much more likely by the increasing identification of the senior ranks of the intelligence community with your ruling class. To the point that these people, being ordinary sentient human beings, believe what the people at the top of their class are saying about the opposition.

We are good, and they are bad.

We are good and these opponents of ours, which mean to take over our positions, are bad people, they are dangerous to the country, and therefore why not look for every possible means of keeping them out of office?

You were directly involved in the drafting of the original FISA law in 1978.

That’s correct.

In the aftermath of the Church Committee revelations, yes?

Right. Now you use that term “the Church Committee” in the context that it was something that was antagonistic to the intelligence business. It was not. The Church Committee was a joint operation between, let’s call it “the left” inside the intelligence community, specifically the CIA, and their friends on the Hill. The result of it was that the left component of that bureaucracy has control of the CIA now.

The drafting of FISA was a cooperative enterprise between the Democratic majority, at that point, of Congress, the staffers being all Church Committee staffers, every one of them. And the ACLU. What I’m calling the establishment left. They were the drafters.

But the impetus of the drafting came from the FBI, primarily, and secondarily from the CIA, the NSA. The reason for their pressure was that the left had sued individual members of the FBI for having wiretapped them during the Vietnam War, in their communications with North Vietnam, communist Czechoslovakia, the KGB, and so on. Now they didn’t like that, and they wanted to make sure that nothing like that ever happened again.

So the point of FISA from the standpoint of the left was to keep that from happening again. The point of FISA from the standpoint of the FBI etcetera was never to be in a position to be sued again.

Right. A judge signed it. So now it’s legal.

Right. What the FBI etcetera demanded was preauthorization. We will not do any wiretapping unless it is preauthorized. Unless we are ipso facto clean.

Now the objections to FISA were primarily of a constitutional kind, mainly that wiretapping for national security was an inherent part of presidential power. The president is commander-in-chief of the armed forces. And that was a true objection.

I however made a different objection, although I agreed with the constitutional objection. I said that pre-authorization, pre-clearance of wiretapping, would be an unendurable temptation for people in the agencies to do whatever the hell they wanted. They would be exempt from the prudence that the fear of being sued would impose.

My objection caught the eye of the American Bar Association at the time, which organized a debate on that subject at the University of Chicago Law School, with me on one side, and a local law professor by the name of Anthony Scalia on the other.

Scalia took the position that the danger, which I described, which he found real, was minor compared to the need to get the agencies doing their job vigorously. We see how the future turned out.

I must note that Scalia is a southern Italian. And I am a northerner.

When you saw the Snowden revelations about Stellar Wind and these other collection programs which then were retroactively legalized—what was your response?

“What else is new?”

Along with the impetus of 9/11, do you feel that the technology itself fundamentally—

Sure. Technology itself increased the possibilities. And it would have taken real self-restraint for people to say, “No. We could do this, but we won’t.”

We fear the future threat to the constitutional order.

We ought not to have such powers.