Rivkin & Casey on the Threat of FISA Abuses

Over the years I have enjoyed reading and--I like to think--have learned a good deal from the articles by David B. Rivkin Jr. and  Lee A. Casey, which appear regularly on the Op-Ed pages of the WSJ. So it was with disappointment that I read their brief article today: FISA Abuses Are a Special Threat to Privacy and Due Process: The standard for obtaining an intelligence surveillance warrant is lower than that in a criminal investigation.

Rivkin and Casey are unquestionably correct that FISA (Foreign Intelligence Surveillance Act) abuse poses a special threat to privacy and due process--the privacy aspect has become all the more chilling as the extent to which we live our lives in ways that are readily accessible by electronic means of surveillance has increased exponentially. Consider: when FISA was first passed into law, there were no cell phones, no internet. As we are now learning, however, an even greater threat perhaps is posed by the weaponisation of the Executive Branch departments and their agencies against their political opponents and critics, using the facilities made available through FISA. Much of this new awareness has focused on the FISA warrant that was obtained by the FBI to target Carter Page, a low level adviser to the Trump Campaign for a few months in 2016. The concern, beyond the targeting of Mr. Page, is that the FISA warrant was then leveraged to broadly target virtually anyone who had been in contact with Mr. Page.

As is apparent from the title, Rivkin and Casey lay much of the blame for the abuse in this case on the legal standard for obtaining a FISA warrant. I say "much of the blame" because they also blame, and rightly so, the officials of the Executive Branch (DoJ and FBI) who withheld critical information from the FISA Court (FISC). Both of these contentions are, however, misguided: the first in whole and the second in significant part.