modest due-process grant to U.S.-based Americans caught up,
perhaps inadvertently, in the intrigues of foreign intelligence
services; it was now being reimagined into a sort of global
Fourth Amendment. Court-enforced privacy protections
could be extended to aliens outside our borders—including
those plotting against Americans.
The legal battles over warrantless surveillance and the
court’s oversight jurisdiction threatened to shut down essential
foreign intelligence operations—during wartime, no less. The
beleaguered Bush administration decided that the better part of
valor was to cut a deal with Democrats. The NSA program was
brought under FISC supervision. FISA was also amended so
that extensive overseas intelligence operations against foreign
targets—the kind FISA was not supposed to intrude on—were
also brought under nominal court supervision.I
Tis a fig leaf: Unlike traditional judicial warrants, or
even FISA warrants as originally conceived, these sur-
veillance warrants were not to be based on particularized
suspicion of individual suspects. Under the revamped FISA,
the FISC puts its imprimatur on sweeping executive-branch
intelligence-collection programs, implicating hundreds of
millions of people. Of course, it is all classified, so there are
no actual judicial proceedings involving claimants whose pur-
ported rights have allegedly been violated. But the Left gets topretend that foreign security threats really can be quelled by
legal process and court orders.
Except the emperor has no clothes. The FISC has repeat-
edly approved collection programs only to have the Justice
Department and NSA confess that communications are
being collected in violation of the court’s instructions—an
inevitable outcome. Technologically, it is a cinch to capture
heaps of communications; the challenge for the NSA is sifting
through the heaps for the relevant morsels without invading
the privacy of Americans suspected of no wrongdoing. It’s not
a matter of bad faith; it’s just very hard to do.
And now, in the Trump–Russia debacle, the FBI has been
caught doing exactly what the well-intentioned but irrespon-
sible “wall” of the mid ’90s was designed to prevent: pretex-
tually using FISA to conduct a criminal investigation in the
absence of a crime. Except it was done not to further national
security but to interfere in an American political campaign.
While the FISC’s orders in December stress the FBI’s many
misrepresentations, the court fails to mention the inconve-
nient fact that the Carter Page surveillance applications were
appalling on their face, and the court signed off on them any-
way. Perusing the redacted versions that have been made
available publicly, one sees that the government agents gave
the FISC no basis to believe that the FBI was relying on
sources who had any direct knowledge of the allegations
undergirding their sensational claim that the Trump campaignmight be engaged in a cyber-espionage conspiracy with the
Kremlin to influence the 2016 election. The bureau relied on
the now-discredited former British spy Christopher Steele.
Even by his own account, Steele’s information was based on
hearsay multiple layers removed. The FISC let it pass when
the FBI risibly sought to corroborate Steele with a media report
(for which the bureau implausibly claimed Steele was not the
direct source). When FBI officials sheepishly acknowledged
that Steele had been removed from the investigation because
he was leaking to the media (though they nonetheless contin-
ued relying on his unverified claims), the FISC just kept sign-
ing off on the warrants. The highly intrusive surveillance
begun weeks before the election continued for nearly a year
into Trump’s presidency.
No surprise, then, that the FISC wants to move on from the
Page surveillance to haggling over how to improve the FISA
system. No surprise that it has brought in David Kris, who is
sure to vouch for the system’s splendor while focusing laser-
like on the FBI’s malfeasance, gliding by the FISC’s own
shoddy performance.
There is a telling vignette about the Trump–Russia investiga-
tion. In March 2017 House testimony, the FBI’s then-director,
James Comey, conceded that he did not brief the investigation
to the congressional “Gang of Eight”—the senior bipartisan
leadership of both chambers and their intelligence commit-
tees. His preposterous rationale was that the matter was toosensitive. Of course, the point of having the Gang of Eight is
to make sure that Congress can perform its constitutional
duty to check executive national-security operations, to
ensure their propriety and prudence. In stark contrast to this
silence vis-à-vis Congress, the FBI and the Justice Depart -
ment anxiously described their probe to the FISC, again and
again. They did so confident that tough questions would not
be posed by senior lawmakers—Republicans stunned by the
use of FISA to investigate a political campaign, or Democrats
mindful that what’s done to the goose can be turnedon the
gander. In the FISA process, executive officials knew that
their applications were apt to be approved with little or no
examination. They also knew that, in the unlikely event that
FISA’s top-secret carapace were ever breached, they would be
able to claim that their investigation must have been proper
because a prestigious, specialized United States court
approved it four times.
FISA is a terrible system built on an unconstitutional foun-
dation. It foists political functions on the judiciary, indulges
the fiction that judges are institutionally competent to over-
see foreign counterintelligence operations, undermines
national security, and does not meaningfully safeguard the
civil rights of Americans. Counterintelligence is a political
obligation that requires intense congressional oversight, not
illusory judicial oversight. There is no mending FISA. It
should be ended.
35Counterintelligence is a political obligation that
requires intense congressional oversight, not illusory
judicial oversight.
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