National Security & Defense It Is Time to Rethink Foreign-Intelligence
Surveillance By Andrew C. McCarthy

April 4, 2020 6:30 AM

The crest for the Department of Justice, Federal Bureau of Investigations
at the J. Edgar Hoover FBI Building in Washington, D.C. (Leah
Millis/Reuters) The latest inspector-general report is another black
eye for the FBI, but the FISA court is the elephant in the room.

Imagine the game gets underway. The first pitch is a little outside but,
instead of calling ball-one, the umpire coaches the catcher to move his
glove a little closer to the plate. The puzzled batter swings at the
next pitch, grounds it to short, and is astonished to see the paunchy
second-base umpire shifting to his right to field the ball, while
the shortstop tries to coach his footwork. That goes about as well as
you’d expect: The ball slowly dribbles into centerfield. Seeing this,
the batter rounds first to cruise in for an easy double . . . except
the first-base ump suddenly calls him out for purportedly running out
of the baseline. The utterly confused hitter stomps back to the visiting
dugout. The home-team defenders wink at the vaguely embarrassed umps. The
next batter steps up to the plate, looking just as puzzled as the first,
realizing he has no clue and no chance.

This turns out to be a special league. The games are never televised. The
sports journos don’t report on them. We only know about this one because
a secret videotape leaked. When we watch it, we can only shake our heads
and say, “Whatever this is, it isn’t baseball.”

FISA is like that. Whatever it is the judges are running, it’s not
a judicial proceeding. More like what Fielding Melish would call “a
travesty of a mockery of a sham . . . ”

The FISA follies continued this week with what is being portrayed as the
latest shiner for an FBI that is running out of eyes to blacken. Justice
Department inspector general Michael Horowitz’s new scathing report,
following on his previous scathing report, describes his office’s audit
of FBI warrant applications submitted by the Justice Department to the
secret court created by the 1978 Foreign Intelligence Surveillance Act
(FISA). In large part, Horowitz’s new report is an audit of what
turns out to be a flawed internal audit — the FISA process being so
thoroughly flawed that even its self-policing mechanisms are a joke.

The result, at the risk of further overplaying my baseball analogy,
is that the bureau is batting nearly a thousand (or, depending on
your perspective, nearly .000). Virtually every one of the over 70
applications the IG selected for scrutiny — a representative sampling
of five years’ work by eight busy FBI field offices going back to 2014
— was rife with errors: assertions that were unverified and apparently
unsupported, flat-out inaccuracies, and typographical errors so blatant
they elucidate that no one is reading these applications very carefully.

And that’s really the point. My meticulous NR colleague David Harsanyi
is quite right to point out that, on the record the bureau and the Justice
Department have compiled going back to the Carter Page surveillance fiasco
that undergirded the Trump-Russia collusion caper, what we are seeing
cannot be dismissed as mere sloppiness. It smacks of corruption. But
that said, the elephant in the room remains the FISA court. Not that it
is corrupt, but that it is institutionally unfit for the oversight role
FISA contemplates. That invites corruption and sloppiness.

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Baseball would not work, it would not be baseball, if the umpires and
the defense were the same team. Yet that is the FISA arrangement. The
judges are still in their robes, just like the umps in my outlandish
analogy still wear their blue suits, maintaining the appearance of
independence. But they are not performing a judicial role. They can’t
be. Foreign-intelligence collection is not a judicial function.

FISA makes the court an advisory participant. Judges, instead, are
supposed to be objective arbiters. In our system, they are not permitted
to give advisory opinions to the political branches. Their role is to
stand impartial between two adversaries — one of whom is often the
government. Their role is to decide only cases and controversies based on
concrete factual records of alleged wrongdoing — including wrongdoing
by the government’s political branches.

In FISA, though, the judges’ job, like the FBI’s, is to make the
system work. The system is national security, not due process. The
system’s objective is to prevent clandestine foreign agents from
undermining American interests through espionage, terrorism, and other
hostile operations. In essence, the FBI defenders and the judicial umps
join forces to prevent the other team from scoring. As a constitutional
matter, this is really the FBI’s responsibility. The FISA court is
incorporated to festoon the investigations with due-process bunting,
like those red, white, and blue banners draped along the stadium façade
on Opening Day. But the judges’ participation in the system is an
anomaly. It is not the judges’ fault. The fault lies with Congress’s
ill-conceived FISA system.

To be clear, national security, of which foreign-intelligence collection
is a vital part, is a political function. That does not mean it is
“politicized” in the partisan sense. It is a political function
because the Constitution assigns it to the political branches of
government. Protection against foreign threats, including how much
indulgence to afford aliens and Americans who collaborate with hostile
foreign powers, is a determination to be made in the first instance
by the president and Congress, who answer to the American people whose
lives are at stake.

We intentionally insulate the judiciary from political accountability
and, derivatively, from the functions of the political branches. When
the state allegedly violates an individual’s rights, the judge’s job
is to referee between that individual and the state, not to participate
in the latter’s operations against the former.

“Wait a second,” you say, “in criminal cases, we let police
go unilaterally to judges to get warrants all the time.” Apples and
oranges. Criminal proceedings are not intelligence-gathering exercises to
thwart hostile foreign powers that threaten our governing system. Criminal
proceedings are our governing system in action.

In the criminal-justice system, judges ensure that the state complies
with the Fourth Amendment before searching private property and seizing
evidence. If the judge denies the warrant, the search is legally
forbidden. Not so in national-security matters. Presidents reserve the
right to monitor foreign agents even if a judge refuses authorization —
and even the right to do so without asking. There is controversy about
this (recall the battle over President Bush’s warrantless surveillance
program), but it is a respectable constitutional position that presidents
of both parties have taken.

In the criminal-justice system, moreover, a judge’s issuance of a
warrant is essentially a preliminary ruling that the government has
shown probable cause that a crime has been, or is being, committed, and
that incriminating evidence of that crime will be found by the search
or surveillance. That’s a classic judicial determination, different
in kind from assessing whether there is probable cause that a person is
acting as a clandestine agent of a foreign power such that monitoring
him might produce useful intelligence.

Furthermore, I described the issuance of a criminal search warrant as
a “preliminary” ruling because, unlike in FISA, such warrants are
virtually always followed by a prosecution in court. Once charges are
filed and arrests are made, the case is assigned to a judge who, almost
always, is not the same judge who issued the warrant. The defense gets
discovery. With it, defense lawyers and their investigators conduct
a thorough investigation of the warrant — something the judge who
issued the warrant had neither the resources nor the institutional
responsibility to do. The defense is then permitted to challenge the
legality of the warrant by revealing any errors or misrepresentations
the government agents made in applying for it.

That is, in the criminal-justice system, the original issuance of the
warrant is just a first phase. In the next phase, the pretrial hearings,
the warrant is subjected to the grueling adversarial process, and a
more searching ruling about its legality will be made by the presiding
judge. Fully aware that this will eventually happen, the FBI knows it
must be very careful about what it puts in a warrant application; and
the judge to whom the warrant application is first made must be exacting
in reviewing it. People perform much better when they know their work
is going to be checked and graded.

That does not happen in FISA. What’s more, it should not happen. If
a foreign power is threatening the United States, it is the job of
the political branches to meet and overcome that threat. We’re not
talking about a mere drug deal or stock fraud. If a president, based
on what the intelligence agencies convinced him was solid information,
believed al-Qaeda was plotting to explode a dirty bomb in an American
city, or that China was hacking the Pentagon’s servers, it would be the
president’s national-security duty to stop the foreign attack. It would
be an abdication for the president to stay his hand just because a judge,
who is not constitutionally responsible or politically accountable for
national security, opined that probable cause was lacking.

That does not mean the executive branch should get carte blanche. Far
from it. Unchecked power is power that is sure to be abused. The point
is that the FISA court is not the right oversight mechanism. Congress
has to come up with a better one — a bipartisan congressional body
that has political responsibility for both national security and the
rights of Americans; that has the incentive to prevent intelligence
powers from being exploited to interfere in our political process;
that has the clearances, resources, and competence needed to subject
the executive’s surveillance activities to meaningful scrutiny; and
that can refer any malfeasance it uncovers to the Justice Department
for possible prosecution in court.

Because courts are neither institutionally equipped to check the
executive’s work nor politically accountable for its shoddiness, their
participation in foreign intelligence collection is not an effective
check against executive misconduct. To the contrary, it makes the abuse
of laws governing intelligence collection more likely. Think about it:
How many times did we hear the FBI’s apologists say the Carter Page
warrants must have been on the up and up because four different judges
signed off on them? We now know the warrant applications were rife with
improprieties. But when the bureau and the Justice Department were
stonewalling, they relied on the judicial imprimatur to rationalize
withholding information from congressional investigators.

When we finally get past the coronavirus crisis, FISA reform will be a
hot topic again. Unfortunately, most of the reformers on Capitol Hill
would make matters worse. Some, such as  GOP senators Rand Paul and Mike
Lee, will not concede that, because some Americans and aliens inside
our country collaborate with our foreign enemies, there is a place for
foreign-intelligence surveillance inside the United States. They think
we can just rely on the normal criminal-justice system — and if that
means we can’t collect vital intelligence about the activities of
foreign powers, so much the better, since that information will only be
used by progressive interventionists to justify more “endless wars.”

Other reformers know that we need to gather foreign intelligence, not only
overseas but also in our own country, where we are most vulnerable. Yet,
they do not accept the Constitution’s prudent divide between political
and judicial authority. They figure we’re a “rule-of-law society,”
so why shouldn’t the courts have the last word on everything, including
national security against foreign threats? For them, FISA is a noble
experiment, and if it’s not quite working as intended, surely it’s
not necessary to throw the baby out with the bathwater.  16

There will be no meaningful reform of foreign-intelligence surveillance
until we are willing to confront two uncomfortable facts. First, there is
nothing about being an expert in law that makes a judge institutionally
competent to participate in, much less oversee, intelligence collection
and analysis. The only proper role of the federal judiciary in this
thicket is as a forum for lawsuits by people whose rights have been
violated by government intelligence agents. In FISA, Congress has thrust
judges into the position of participating in the violations.

Second, there is nothing about being expert in the conduct of criminal
investigations that makes an agent competent to conduct foreign
counterintelligence operations. For many years, I saw what seemed
to be the wisdom in having the FBI wear both hats. I’m no longer
convinced. That’s a topic for another day. For now, it’s enough
to say that a real reform debate would not only have to wrestle with
the inappropriate role FISA assigns to the judiciary. It would have to
ask whether the FBI’s mission should be pared back to the criminal
investigations at which it excels. Domestic security against foreign
threats remains vital, and that mission needs rigorous congressional
oversight. But the question of who should execute it needs to be on
the table.  Andrew C. McCarthy is a senior fellow at National Review
Institute, an NR contributing editor, and author of Ball of Collusion:
The Plot to Rig an Election and Destroy a Presidency. @AndrewCMcCarthy
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