The Long Overdue Reform of the FISA Court

April 17, 2020 Updated: April 26, 2020

Commentary

Reflection on the constitutional wreckage that has resulted from the misuse of the Foreign Intelligence Surveillance Act (FISA) during the course of the 2016 presidential campaign has been unfortunately deflected by the tsunami of coverage and discussion pertaining to the global health vicissitudes.

Yet, the use of unsubstantiated and materially false affidavits, attested to by senior Department of Justice (DOJ) and FBI managers, requires review and reform. The investigation into both the particulars of the Carter Page FISA warrants and the FBI’s FISA warrant procedures overall by DOJ Inspector General Michael Horowitz has revealed large scale misfeasance requiring retooling of procedures and safeguards.

It’s time to assess and examine the damage.

In times of serious threats to national security, the populace at large is often all too willing to sacrifice personal freedoms in search of quick fixes that will reduce security concerns and the resulting fears and anxiety. And politicians are quick to take advantage of the populace’s diminished concerns for personal liberties.

Subsequent to the World Trade Center attacks, the USA Patriot Act was promulgated, and, used in conjunction with the preexisting Foreign Surveillance Act, provided the nation’s security and intelligence services with broad powers that under normal circumstances would never have been tolerated.

Now, we see the same forces at play as the pandemic begets widespread fear, with legislators shifting control of the economy from the private sector to the central bank, the Federal Reserve. Just as the Patriot Act diminished the public’s privacy and civil liberty rights, these new financial processes will reduce the economic and financial independence of the public at large, reducing the role of private banks, while consolidating and increasing the power of government-controlled financial institutions.

Defective

As reported by Ivan Pentchoukov in The Epoch Times on March 31, “The inspector general … reviewed the internal audits the FBI conducted on 42 FISA applications and similarly found that ‘these oversight mechanisms routinely identified deficiencies in documentation supporting FISA applications.’”

Thus, the Bureau’s own inspectors exercised their self-policing duties as required and found the FISA warrant applications to be defective. Furthermore, these findings were appropriately documented, otherwise, they would not have come to light in the course of the inspector general’s investigation.

Consequently, claims by FBI upper managers that they were unaware of the abuses defy credibility. Worse yet are former Deputy Director Andrew McCabe’s often repeated public statements shifting of all blame for FISA abuses downward onto the shoulders of supposedly rogue field agents—absolving upper management while seemingly unaware of the implied dereliction of his managerial functions. With leaders such as McCabe, the buck always stops long before reaching his desk.

Pentchoukov noted that House Intelligence Committee ranking member Devin Nunes (R-Calif.) said in a statement to The Epoch Times that “it’s clear [the FBI’s] operations require close oversight by congressional leaders who actually care about Americans’ civil liberties.”

As well-intentioned as Nunes’s recommendations may be, it is hardly clear that legislators uniformly hold civil liberties, as enumerated in the Bill of Rights, sacrosanct. To the contrary, many Democratic Party luminaries, including Hillary Clinton, Robert “Beto” O’Rourke, and The Squad, have disparaged the Constitution as outdated and no longer relevant.

Additionally, Congress is a notably porous institution where classified information is concerned. The defects in the FISA system—involving as it does both the judiciary and the executive branch—are not to be solved by adding yet another branch of government into the process.

Reform

A careful review will provide insight as to procedural changes that can be initiated in order to mitigate future damage. One area in need of immediate reform is the process for obtaining a FISA warrant (as distinguished from warrant execution and target selection).

However, on March 15, reform of the Foreign Intelligence Surveillance Act was postponed, with the Act being extended “as is” to the end of May. Extensive discord exists as to what if any changes need to be enacted in order to allow for effective investigation of terrorist and hostile intelligence threats, while simultaneously protecting the privacy rights of both investigative targets and those with whom the targets may interact in the course of the authorized surveillance.

To reform the FISA application process, the focus on changing procedures was initially based on an erroneous assumption. The assumption was that there were only procedural errors, which were perhaps inadvertently committed. The IG’s reports have disproved these assumptions.

The essence of reform isn’t solely a change in procedures. Rather, it is initially a change in personnel. If principled men and women with high standards of integrity are appointed to positions of leadership in the FBI and the DOJ, the need for concern with abuse and with procedures can be mitigated.

Additionally, it is necessary to align the FISA procedure with the adversarial legal system, which is the basis of our jurisprudence. Ours is an adversarial system of justice, based on the British model. The system relies upon two or more adversaries taking opposing points of view so as to arrive at the truth, or something close to it. The FISA court is structured so as to be the adversarial model, with one adversary missing. So, it’s logical and predictable that the truth will not be arrived at.

Thus, we are faced with two potential alternatives. One is to introduce an adversary to review and litigate all applications. This adversary, drawn from a pool of appointed federal public defenders with top-secret clearances and access to classified materials, will assume the role of “defense attorney,” acting in an adversarial capacity, opposing the prosecuting attorney and presenting alternative points of view to the FISA judges.

They would act as defenders of the rights of those who are the targets of the clandestine surveillance activity. Thus, the civil rights of those whose Constitutional privacy rights are to be infringed are unwittingly protected, and the potential for abuse by prosecutors is mitigated. In such a manner, there will be a stronger likelihood that a “truth“ can be arrived at, allowing the FISA judge to make an informed and just decision.

The other option, equally viable and reliable, would be to model the FISA court system on the European criminal judicial system and utilize an “Investigating Magistrate” in lieu of two or more adversaries.

Under such a model, the government would formally submit a fully documented request for a FISA warrant, and an investigating magistrate would be assigned to the case who would conduct a neutral, unbiased, and unfettered investigation, obtaining documents both pro and con, and then would arrive at an independent decision as to whether or not to grant a warrant, and imposing such restrictions as he or she would deem appropriate.

The House compromise bill renewing the Foreign Intelligence Surveillance Act, kicked down the road for future consideration, would limit the authority to use FISA to obtain intelligence pertaining to investigative targets. But the focus should not be on limiting the scope of investigative activity, but rather on assuring that the underlying warrant has been obtained fairly, using bona fide probable cause and procedures designed to protect the rights of individuals targeted for official scrutiny.

Once a warrant has been obtained pursuant to the procedures proposed above, there is then no rational basis for further limiting the investigative techniques available under the act.

Marc Ruskin, a 27-year veteran of the FBI, is a regular contributor and the author of “The Pretender: My Life Undercover for the FBI.” He served on the legislative staff of U.S. Sen. Daniel Patrick Moynihan and as an assistant district attorney in Brooklyn, N.Y. Follow Marc on Twitter @mhruskin.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.