Sunday, October 27, 2019

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.


  1. This post, combined with Carter Page's recent news that DOJ is not cooperating nor communicating with him regarding his statutory right to "review and amend" Federal records (of which he is a subject) before they are made public.... does not have me hopeful for the disclosures we're hoping for in the FISA review by Horowitz.

    1. I believe these concerns are coming from different directions. Page should be more concerned about preparing to become a multi-millionaire. DoJ wants to do the disclosing to coordinate with the rest of their investigating.

    2. Mark, your compilation of Bork and Codevilla is absolutely overwhelming. There is no question that Robert Bork should have been confirmed to the Supreme Court. The attacks on him were revealing of the fear he struck in many hearts. Fast forward to Kavanaugh and President Trump.

      Lacking information is the fastest, surest way into bondage, IMHO. The information you share here - your own work product and that of others - is invaluable. We must be better-informed than most are. Obtaining that information is considered by some to be such hard work. (they sigh) You make it much easier. Thank you.

      (Page was a minor player - a vehicle, a device. He should follow your advice and get off the stage. His time will come.)

  2. I hosted a 91 year old gentleman at my agency. He is a retired SES. He brought up politics. Sad to say he was a typical liberal.

    We really need to put the Deep State on a leash. I'm not kidding when I say that they're a bigger threat than Russia or China. These morons who think that they know everything and can run our lives better we can.

    A clear and present danger. And I still say that we need to quit criminalizing everything.

  3. Codevilla, at his best, is an outright stud.
    See e.g. his post at ,
    e.g. about how the '08 bailouts showed there to exist "a remarkably uniform, bipartisan, Progressive ruling class".

    1. Yes, I like it. I see he, too, traces it back to the Progressive Era--Woodrow Wilson and his ilk.

    2. I found Our Revolution's Logic to be an excellent read. Codevilla certainly does not equivocate.

    3. Another thought - reflecting on Codevilla -

      If Codevilla's logic is right, and I suspect it is, this is why gaining convictions against the conspirators and winning the election in 2020 is critically important.

      Its why nobody who cares about this result should ever be equivocating.

  4. From Twitter

    Ryan Saavedra


    Former FBI Director James Comey says he's moving to New Zealand if President Donald Trump wins re-election

    I didn't know that we operated federal prisons in New Zealand.

    1. Yeah, I saw that and thought, heh, who says we'll let you go, Jimmy?

  5. Mr. Wauck,

    I don't know if you know this but Thomas Lifson has a good story about Andrew McCabe withdrawing his lawsuit as a possible indicator of his being indicted. He also mentions that Andy turned down a plea deal.

    1. Yes I saw it, but I need to update on that, which I'll do soon. It turns out according to Undercover Huber that info is incorrect.

    2. OK, I updated:

  6. Sorry, I didn't know that you already covered it. I am working backward from your most recent entries. I read all links and comments and that can take some time. (As I am sure that you know.)

    1. No, you reminded me to update. When you commented I hadn't taken care of it. I saw it last night but delayed.

  7. Mark

    I wrote this email (copied below) to a close friend this morning. (Being 'retired' I obviously have too much time to read and 'think'.)

    I offer it here as a mirror for you and your your readers to reflect on what is really at stake (or at least what I see that really matters).

    Dear Jack


    As perhaps you know better than anybody (except for my wife, who I’m copying) I came to Trump reluctantly. I didn’t vote for him. I was probably too influenced by the liberal media which smeared him relentlessly for the un-presidential things he had done over the course of his checkered business career. I read that he was ‘racist’, authoritarian and Hitler-like; I read that he didn’t respect women because he was a ‘pussy grabber’ and that he had had extra-marital affairs. I read that he was ‘stupid’ (which I should have realized is a dead giveaway). I read that he was both unethical and a failure in business: he cheated his vendors and in resorting to bankruptcy robbed his innocent creditors. I was told he undoubtedly cheated on his taxes. He only wanted to be President to expand the Trump brand and make more billions.

    Well, the Democrat propaganda onslaught persuaded me. I didn’t vote for him, largely on ‘character’ grounds. If the Dems had only run a palatable candidate I’m sure millions more Americans in the Midwest would have voted Democrat and that would have been the end of Trump.

    Well, thank god they ran the detestable Hillary Clinton and snatched defeated from the jaws of victory.

    As I now read the case for Trump as laid out by the conservative scholars and writers in the American Greatness post linked above, I am shocked to realize how little I was actually listening to what Trump was promising and what was at stake. How close the Left came to destroying Trump with innuendo before the election and yet how clearly these conservative scholars saw through the propaganda assault. If you read through the post linked above, written before the election, it becomes crystal clear what was really at stake in the election and what a ‘miracle’ it was (and still is) that Trump won.

    In hindsight the media attack was all a smokescreen to obscure the very real fundamental issues at stake…and we (I) almost fell for it. You and I have good friends who did fall, and have fallen, for it. I despair…

    Of course the same onslaught continues and there are days when any sentient person wonders if the Left isn’t somehow actually correct. The onslaught is that powerful. Maybe he does lie, maybe he did offer an impeachable quid pro quo, maybe he is a racist because he locks up Mexican children at the border. Maybe he will destroy our national security by abandoning the brave Kurds in their hour of need!

    But no.

    The fundamental reality as clearly seen by the brave scholars and writers in the American Greatness post seems more true today in hindsight than when they wrote it before the election.

    I pray that the required electoral majority will see this too in November 2020.

    Your friend,


    1. Thanks for that! Many of us went through similar struggles, and are still working through them with friends and family. My decision was based on two considerations: 1) Having voted for McCain and Romney I considered that if a true alternative were offered we had to take it; 2) I always felt that Trump's pledges were far too specific for him to simply renege on them and too much at odds with the GOPe. He was independent of the party finances and was enunciating true conservative ideas rather than GOPe globalist pablum.

      I'll be out this morning.

    2. To paraphrase what some said of JFK after his death:
      he was loved/ trusted for the enemies he made.

      Once the MSM, + Biden, spun Trump's 2015 words (about "sending their rapists") to be "calling Mexicans rapists", I knew that something big was up.

    3. Absolutely no later than when the MSM slobbered all over Merkel's importation of Syrian haters of Western Civ (esp. Jews), it was brutally clear that the MSM shared the Syrians' hate.

    4. "... there are days when any sentient person wonders if the Left isn’t somehow actually correct."

      Any sentient person? Not any person who has paid careful attn. to the antics of today's archtypical Upper Middle Class brats, esp. the females.

      I say this, as someone who has also had outright wonderful experiences w/ the best of UMC females.
      Trouble is, the wonderful ones are the exceptions, and they wipe the sweat off of their brows, that they managed to dodge the deranged wrath of their powerful "Sisters".

    5. For more on the pathology of so many Upper middle class females, see alt-Right blogger Whiskey in 2012, at :
      "Angelo Codevilla argues in the American Spectator, that the Ruling Class of America, Republican and Democrat, all go to the same national schools, share the same interests, intermarry, and form the same social class.... the entire Elite political system is dependent on sustained good times for everyone, to smooth over the massive TRANSFER of wealth and opportunities, from average WHITE people to non-Whites (and elites)… There is a word for people who hold such views. The natural basis for the Super Zips. The Ruling Class. The New Elites. We call them ... women.
      Specifically, White professional women."

    6. Man, that is so true. I've commented on that numerous times to family, the way women seem to support the worst pathologies that actually--in their effect--are so anti-woman. I really don't get it. In fairness, of course, the same could be said of many beta male types.

    7. "the same could be said of many beta male types."
      Yeah, esp. those who suck-up or cover for the sociopaths.

    8. And, most often, the women who seek to duck the sociopaths know that the latter have the (more powerful) beta guys in tow.
      So, I rather understand why the good women usually choose to lay low.

    9. Hey, it's not just the white women. It's a matter of how many merit badges you get for your minority status. Exhibit A is the black 'transgender woman' at the CNN LGBT debate.

      Here's a list

      Person of Color

      I'm sure I'm missing some. As advertisements say, "Collect them all."

    10. I suspect that Person of Color is at the very top, and that Muslim trumps Woman, for most Lefties.

  8. Outstanding letter, Cassander! Nice response, Mr. Wauck. I had a similar path to President Trump.

    I consider it an honor to struggle alongside him for this great country and to work with all of you on this blog against the forces of evil.