McCarthy's Critique of FISA 'Reform'

In a comment dated March 14, Titan 28 pointed out a new article by Andy McCarthy--No to ‘FISA Reform’--in which McCarthy inveighs against

Senators Paul and Lee, their progressive allies, and the Trump supporters they’ve hoodwinked would make us vulnerable to terrorists without fixing FISA.

According to McCarthy:

the president seems poised to fulfill one of the fondest dreams of Clinton and Obama Democrats: Government policy that regards international terrorism as a mere crime, a law-enforcement issue to be managed by federal judges rather than a national-security threat from which the officials Americans elect must safeguard our country.

McCarthy makes some valid points, although he can't resist indulging in the usual misguided NeverTrump smears. For example, he's quite right that Libertarians misunderstand the Fourth Amendment, misconstruing it as somehow governing the Commander in Chief's national security powers.

However, the narrative that McCarthy presents is not entirely honest. He wants us to believe that assorted knuckleheads--Trump supporters hoodwinked by Paul, Lee, and progressives--want to take international terrorism out of the hands of the Commander in Chief, to transform it into a LE issue rather than a national security issue.

That's patently unfair. There is no reason to doubt that the real concern OF Trump supporters is for the civic liberties of Americans. Indeed, McCarthy concedes, obliquely, that there really was a problem with "the post-9/11 record of intelligence-agency envelope-pushing and deceit that eroded public trust." And that envelope-pushing had little to do with "roving wiretaps" and "lone wolf" terrorists. Rather, as I explained in What About FISA "Renewal"?, it had to do with the "business record" provision of the Patriot act that enabled the bulk collection of communication metadata.

McCarthy is no doubt correct that most of the "conservatives" who want to "reform" or "abolish" FISA are fairly clueless about the Constitution. As I explained, this latest controversy will not result in a repeal of FISA or, likely, anything remotely similar to the necessary transformation of the FISA regime. McCarthy, however, attributes the outrage of the Trump supporters to an unslaked thirst for revenge against the bureaucrats who attempted to stage a coup against President Trump. Revealingly, McCarthy seems to think that firing a few bureaucrats--or having OIG direct some harsh words against them--is sufficient punishment for an attempted coup:

the president and his most ardent supporters do not actually want to overhaul the Foreign Intelligence Surveillance Act of 1978, which created the FISA court. What they want is accountability for the FISA abuses committed by American intelligence agencies. 

He is apoplectic, as are his most ardent supporters. Grasping this, his allies in Congress and on the airwaves grouse that “no one has been held accountable.” In truth, the officials who ran the Carter Page FISA surveillance — and who deployed informants in a futile effort to ensnare Trump operatives — have been both purged and subjected to duly humiliating inspector-general reports. Yet that is not enough for the Trump camp, which wants criminal prosecutions.

Should that be enough? Granted, McCarthy makes a legitimate point here:

...

But here’s the thing: The FBI and its intelligence-bureaucracy collaborators executed their plan by misleading the FISA court in violation of the existing FISA rules. There is no “reform” of the statutory scheme that can prevent such a thing. There is no “reform” of the statutory scheme that can hold a rogue accountable. If your objection is that being fired is not enough, and that prosecution is necessary for accountability, only an indictment can accomplish that, not a change in the law.

As I've repeatedly maintained, citing the writings of Robert Bork and Angelo Codevilla, the real problem with FISA--the problem that makes misleading the FISA court an inevitability--is the whole concept of having a FISA court in the first place. And again, McCarthy recognizes that--to some extent:

The fundamental problem with FISA is the FISA-court system. As I’ve recently noted in National Review’s print edition, that system transfers control of national security against foreign threats to the judicial branch, which is insulated from political accountability; the Constitution, to the contrary, assigned this duty to the political branches, which answer to the American people whose lives are at stake. 

As we saw with Page, the FBI deceived the FISA court to get its warrants; when called on the carpet, it then told everyone its surveillance must have been proper because it was green-lighted by federal judges. The bureau used the veneer of court approval as license to claim that Page — and by extension, the Trump campaign — was part of a Russian influence operation.

Properly speaking, what McCarthy should have pointed out--with Bork and Codevilla--is not so much that the judiciary is insulated from political accountability, but that the FISA court system actually insulates the bureaucrats from accountability, because it puts a judicial imprimatur on their actions. As we are already seeing, any attempt to hold the bureaucrats accountable in this system will always descend into months and even years of partisan battles, CYA statements from the OIG overseers that "mistakes were made", and proposals for new regulations. Business as usual.

McCarthy's solution hints generally in the direction of a return to the constitutional framework, according to which the President conducts national security surveillance and is held accountable for the integrity of his actions by Congress:

If we really wanted to reform FISA, we would be wise get the courts out of foreign-intelligence collection and find a better way of overseeing the activities of the intelligence agencies — beefed up congressional oversight, not a secret court.

Properly speaking, however, reform of FISA--if it is to return to the constitutional framework--can only be actual repeal of FISA. The problem with that is that the type of "beefed up congressional oversight" that both McCarthy and I would like to see is simply not going to happen in our politicized world. The majority party will always, now, resist inquiries inspired by the minority. Realistically, we probably need to recognize that the Founders--in this as in some other important matters--failed to foresee how the rise of political parties would affect the interaction both of the three branches of government but also of the government generally to the population at large.

In the meantime--since those true reforms are not about to happen--McCarthy desperately wants the three "counterterrorism" authorities to be renewed. And the problem with that, which McCarthy apparently doesn't want his readers to understand, is that those three authorities are not exclusively counterterrorism authorities. Two of the three are, but the business records authority explicitly gets into the field of counterintelligence, and specifically fails to restrict its applicability to non-USPERs. Which means that it applies to Americans. Here's how I quoted that authority:

I'm sure you'll recognize the phrase I've repeated so many times: “specific and articulable facts giving reason to believe." That's the probable cause standard. The 'business records' provision modifies the probable cause standard, substituting a far easier standard. Moreover, USPERs fall under this lower standard. Further, you'll recognize the whole business about "an agent of a foreign power"--which is what Page, Papadopoulos, Flynn, and Manafort were all accused of being--even though they were never convicted of that.

...

Prior to the enactment of Section 215, the FISA business records authority required that an applicant have “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” Section 215 generously modified this typically FISA-like standard to simply require a “statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation ... to protect against ... clandestine intelligence activities ...”[9] Moreover, Section 215 further relaxes the standard by providing that the requested tangible things are presumptively relevant if they pertain to an authorized foreign intelligence investigation into ... clandestine intelligence activities and the requested business records or tangible things pertain to “a foreign power or an agent of a foreign power,” to “the activities of a suspected agent of a foreign power who is the subject of an authorized investigation,” or “an individual in contact with, or known to, a suspected agent of a foreign power.”

A "clean renewal" of the three authorities would not only leave the counterterrorism authorities in place, it would also leave the "generously modified" counterintelligence authority in place. If the FBI was able to convince a judge that they had “specific and articulable facts giving reason to believe" that Carter Page was an "agent of a foreign power," who believes that the FBI would hesitate to argue that certain tangible things can be "reasonably" said to be "relevant to an authorized investigation ... to protect against ... clandestine intelligence activities ...”? The fact of travel by a USPER to a foreign power that the FBI disapproves of could form the "reasonable" basis for an application. After all, the fact of Page's travel to Russia--lawful though it was--was used against him.

Moreover, these concerns are raised in an environment in which we continue to see--even after all the publicity given to the Russia Hoax and the FBI's bad behavior in spying on law abiding Americans, framing law abiding Americans--that the FBI continues to have an unhealthy appetite for demonizing and then spying upon their fellow Americans. I draw your attention to two posts from August, 2019, that discuss the Deep State's desire to expand domestic surveillance. This falls squarely within McCarthy's area of concern, so it's difficult to explain his failure to even reference these matters as anything other than disingenuousness and antipathy for "deplorables."

This is already a long post, but I urge you to at least take another look at those two posts. To close, I can hardly do better than to quote the conclusion of a fine Codevilla article (The White Supremacy Hoax):

Today, our ruling class has come to define itself in terms of the will to humiliate “the deplorables,” as it subdues their disrespect. It is confident that the Republican Party won’t help the deplorables, and that President Trump will get out of the way quietly once he’s made some noise.