Judicial pre-authorization for our national security bureaucracies’ actions has taught them dysfunctional practices and created a secret body of law that has undermined Americans’ civil liberties.
"Judicial pre-authorization" is exactly what the FISA regime is all about. The FBI goes to the FISC and if the FISC approves their application for a FISA the FBI will--absent the sort of criminality we've seen in the Russia Hoax--be immunized from all accountability for abuses. Short of actual criminality, the "mistakes were made" defense will defeat all attempts to enforce accountability. It's a system ripe for abuse.
I've written about the problem that FISA and the regime that it engendered since 1978 on a number of posts in the past. It's a thorny problem, constitutionally and, in the broadest sense, politically. In those past posts I cited the reservations of Judge Robert Bork, an outspoken critic of FISA, who forthrightly questioned its constitutionality and predicted the abuses we are now seeing. The two posts most on point at this time are these:
In this post I do two things. I present an excerpt from an article that Judge Bork wrote for the FBI. I originally did that as an addendum to the second, and earlier, of these two blog posts. I will paste in that excerpt directly, but first will add that the bulk of that post--and, if you're interested in FISA, please read the entire post--contains a terrific interview with Angelo Codevilla, who was a Senate staffer working on Intel matters when FISA was passed. Codevilla explains at length that like most laws that are proposed by the government bureaucracy, a primary goal is to protect the bureaucracy itself. As I like to quote Sir Humphrey Applebee: "The Official Secret Act isn't to protect secrets--it's to protect officials!"
Do yourself a favor and read it. And now Judge Bork:
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.”
So, on to the second, earlier post:
Here I'll paste in my own remarks--sorry! I start out by describing the abuses of the Carter Page FISA application. Then I add some remarks about why FISA judges do not constitute an adequate safeguard for American citizens, but rather are--whether they realize it or not--part of the system that protects bureaucrats from accountability:
But what about the four separate judges who signed off on either the original application or the several renewal applications? Do they not have some responsibility for this really shocking abuse of the FISA regime--a regime that was designed to safeguard the Fourth Amendment rights of US citizens? Should they not have subjected the applications to searching scrutiny and questioned what appear to be obvious flaws? To his very great credit, Andy McCarthy of NRO raised precisely this issue in his Fox News interview.
The problem lies, I believe, in the very nature of the FISA regime. The Foreign Intelligence Surveillance Act of 1978 was intended to provide for oversight of the Government's surveillance activity, physical and electronic, to prevent perceived abuses of Government powers in the name of national security--while allowing for necessary secrecy. The act itself was largely written in collaboration between Congress and the Justice Department. The result was remarkable, not to say unprecedented. What FISA did, in effect, by creating the "FISA Court" (FISC) to pass on applications for surveillance, was to transform Article III judges into Government bureaucrats for purposes of FISA. Here's what I mean.
Under Article III of the Constitution, the "judicial power" is to be used to decide cases and controversies--which, in our system, are conducted in adversarial proceedings: all parties to a dispute get to present their point of view in open court. But under the FISA regime there is no case or controversy, nor is a FISC judge's role that of a devil's advocate. The judge hears only the Government's side of things, exercising a minsterial function rather than a true judicial function. The Government's representatives, on the other hand, are not only advocates but, by the very nature of their official duties, they are before the FISC as subject matter experts in their own right.
The inevitable result is that the judges who serve on the FISC may exhibit some or all of the ordinary human weaknesses that the adversarial system is designed to guard against. A judge may lack the necessary knowledge to truly understand what's being placed before him/her, may exhibit undue deference to the Government "experts," may even be biased against the target or have a tendency to go along to get along. But since there is no true case or controversy presented to the FISC and there is only a limited possibility for appeal--only if a decision should go against the Government can there be an appeal, since the target of the FISA warrant is not represented before the FISC--as long as the judge sides with the Government no one will be the wiser. As long as the FISC judge issues the warrant, no one will complain, no one will appeal, there will be no real oversight of the "court's" decisions. Humanly speaking, this is a system that was ripe for politically motivated exploitation--only the principled actions of Admiral Mike Rogers at NSA saved the day.
In saying this I have no intention of impugning the overall integrity of Federal judges. I simply offer what should be a non-controversial observation, that judges are human, too, and when the safeguards of the adversarial system and the appelate process are effectively removed, their human weaknesses may be exploited.
And here is an excerpt from Codevilla's latest critique of FISA:
In 1978, given my role on the staff of the Senate Intelligence Committee, the American Bar Association (ABA) invited me to debate the subject with professor Antonin Scalia of the University of Chicago Law School.
Requiring judicial authorization for an executive action in pursuit of national security, I said, is an unconstitutional obstruction of the president’s power as commander in chief. Scalia agreed but pointed out that the president—the bureaucracies, in fact—supported involving judges because he realized the obstruction is theoretical rather than practical: the secret court having no basis for judging what is or is not required by national security would simply give the agencies the confidence to do their jobs.
I agreed, countering that the confidence would be problematic: although strictly speaking the court could confer only a procedural imprimatur, in practice that would shield the bureaucracies—and the president—from having to defend the substantive value of any act of surveillance.
FISA’s promise to bureaucrats—secret pre-authorization and virtual immunity from criticism—proved impossible to resist. Had FISA existed in 1972, Nixon’s “plumbers” would easily have gotten a warrant to get everything they wanted out of the DNC secretly. Their application need only have cited the McGovern campaign’s plentiful links to North Vietnam and the Communist world.
By the 1980s, the intelligence committees were receiving requests to place authorization for FBI infiltration of domestic groups “of national security interest” within the FISA system. After the 9/11 attacks, when the intelligence agencies were trying to expand their authority in order to excuse themselves for failing to use adequately the tools they already had, they found in FISA a convenient cover for not explaining to Congress, or to the public, how new authorities would make the country safer.
Quite simply, FISA became the cover for a vast expansion of political surveillance under cover of law. It would have been strange indeed if officials driven by extreme partisanship, and their friendly judges, had not used it as they have since 2016.
Any “reform” of FISA could only consist of new lists of standards to be applied for granting warrants. But the 1978 standards ran into some 40 pages. The standards elaborated after 2001, especially Section 702, run in the hundreds. Parchment barriers all.
Judicial pre-authorization for our national security bureaucracies’ actions has habituated them to dysfunctional practices and fostered the creation of a secret body of common law regarding civil liberties. Thus has it perverted the American legal system and poisoned American politics.
Repealing FISA will not fix the problems it has caused, but it would stop making them worse.
UPDATE: Normally I would say "abolish" it, écrasez l'infâme! However, I feel a bit trepidatious in this case. Here's why.
It seems to me that since Watergate our politics have been almost totally transformed, with the Left feeling ascendant, despite occasional setbacks. At the same time that the Left has taken over education and most other public institutions, the Intelligence agencies--and of course the FBI in particular--have assumed a huge role in domestic intelligence. It's true that this is partly the result of the GWOT and FISA's application to it, but I believe it was happening anyway.
The current abuses that we're seeing come to light, under the Obama Administration, are very scary. However, given that the Left feels no constraints about our traditional liberties, is it possible that FISA actually gives them a bit of pause, slows them down a bit just to hide what they're doing? If they were to have 8 years with no constraints, with the total and enthusiastic cooperation of Big Date companies, what might the result be?
This is what worries me. Would the abolition of what is undoubtedly unconstitutional lead to Big Brother?