FISA: The Real Choices

I hope I'm not beating a dead horse here, repeating myself. I've been putting forward the views of Angelo Codevilla, Professor Turner, and the late Robert Bork who all argue that FISA and its regime of the FISC is unconstitutional and should be repealed. However, I fear there are some--especially "conservatives"--who think this would put an end to "spying". Nothing could be further from the truth. The constitutional solution is to leave the power to spy for national security reasons up to the Executive--with Congress conducting oversight. Thus our real choices are these:

1. Continue with an unconstitutional FISA regime, which--except in truly exceptional circumstances--provides a get out of jail free card through the device of pre-approval by a "court." That's what the FBI wanted back in 1978, and that's what they got. The excuse that "mistakes were made" is almost always a winner--a guarantee that there will be no serious accountability.

2. Return to the constitutional scheme--long recognized by the courts--according to which the Executive is responsible for national security. That would include all traditional means, such as warrantless spying of all sorts. Congress would, as in the past, provide oversight. This was our traditional constitutional framework.

We all know that the Executive Branch agencies have no reason to police themselves--as proven by the GWOT and Russia Hoax shenanigans with unfathomably genormous NSA databases. Big Brother is among us, and the courts--or "courts"--are certainly not up to the job of ensuring his good behavior. The real question is: Is Congress up to the job? The ever increasing willingness of the Left to trash our constitutional order leaves the answer to that question very much in doubt. I'm not sure where the way forward leads, quite frankly. Having learned the lessons of the Russia Hoax, if the Left is able again to occupy the White House will they and their MSM allies ensure that a Black Swan event like Trump never happens again? If so, all the tools for totalitarian rule are in place--with the will to use them. Are we as a nation ready to deal with that possibility? We have barely been able to deal effectively with the current crisis--in fact, our ability to do so has yet to be proven.

Today Issues and Insights has an interesting editorial which advocates for the constitutional scheme. I'll paste in the last part. Read it with the above reflections in mind. I would suggest, in addition, that the bigger problem with the FISA regime is usually missed in the current debate. Most people, including the author of this editorial, see the problem as one of the FISC granting warrants too readily. In my view, the true problem is that the courts were never going to be effective watchdogs--as Bork, Codevilla, and Turner warned, the FISA regime was always going to be essentially a placebo. Instead, by substituting the FISA regime, Congress was all too easily able to abdicate its own oversight responsibilities, with results that were foreseeable and, humanly speaking, inevitable. Unfortunately--or, especially unfortunately--this all took place in an environment of exponentially expanding technological capabilities for spying, and a blurring of domestic and national security as issues, brought about by the GWOT and porous borders.

With that--Do We Even Need A FISA Court?

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.