Thursday, January 30, 2020

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Turner, and the late Robert Bork who all argue that FISA and its regime of the FISC is unconstitutional and should be repealed.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.


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

    So, in precisely what part of the current rolling coupe, to which the FISA process was so handily enlisted, does this author not see a political strain. Lenin was a pretty smart cookie, if sick and twisted, and occasionally was pretty close to right on the money. One of his often repeated gems is, "The personal (meaning everything) is political." There are only a couple of specific bits of human experience that are not touched/influenced by politics so legalistic dodges will not ameliorate the situation, but rather give an advantage to deviousness and perfidy. At least we should require a certain level of boldness from our miscreants and not provide tailored legal camouflage for every weasel reprobate that comes down the pike (looking at you Rosenstein).
    Just saying we're already up to our chin in politics. If their hell bent on sedition might as well make them stand on their hind legs, like men, while their about it.
    Tom S.

    1. What the author is saying is that the FISA regime is a make believe process, and was intended to be--by the FBI. It was no more than a way to deflect responsibility. By returning the process to the political process put in place by the Constitution--Executive authority subject to Legislative oversight--we would have clear lines of responsibility.

    2. And I agree. If you want it, wear it. Don't tell to me, the chump voter, that it's ok because some bigger chump judge passed on it.
      Tom S.

  2. After his disgraceful performance refusing to read Rand Paul's question (twice), claiming that their aren't Obama and Trump judges and his failure to clean out the FISA Court lineup, Roberts reveals himself to be a political hack.

    As to your sage comment that "The ever increasing willingness of the Left to trash our constitutional order leaves the answer to that question very much in doubt.", our countrymen could make a huge difference if they would sweep the corrupt Dems out of power. I mean punishing them at every level.

  3. Ya know, there is line in our constitution 4th amendment, about being "secure in our persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated."

    The 4th amendment uses the strong, emphatic "shall." When "shall" is used in law, which the constitution is, it means there is no wiggle room, it is, in essence, a command.

    The government shall not violate that edict, period. It goes on about search warrants, these warrant officers in which no warrants "shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    Yes, I know everyone here recognizes that and knows this, but it is always good to go back to fundamentals.

    What happen to Trump is not reasonable. What is still happening to our president is not reasonable in any sense of the word or court, legislative, or constitutional.

    Worse, according to the FISC, this has been occurring since at least 2012 and even with that revelation, the FISC, our supposed judicial safeguards still rubber stamp 4th amendment warrants on Trump associates, Page.

    The mechanism for our privacy has been in place since we adopted our current constitution. The 1978 FARA law should have been just to support this and not subvert the constitution.

    Today, no matter what we do, FARA, no FARA, we are not safe from a tyrannical federal government in which the Democrats are clear in their desire to employ against even lowly, citizen supporters who go to rallies, voice support for, or vote for Trump and, by inferring, any politician or political stance they deem heretical.

    1. I'm sorry you think I was wasting your time by writing all those numerous posts about what FISA and Executive authority in foreign policy is all about under the Constitution, and about all the SCOTUS and Founding Father opinions on these matters.

    2. Far from it.

      However, I do detect a sense of we are damned if we do and damned if we don't.

      That said, my point was to buttress your general view, as far as I have it, that the former, Congressional oversight, is better than the latter FARA and clearly supported by the constitution.

    3. And, I wish I better edit my replies.