December 12, 2023
Permission to republish original opeds and cartoons granted.
The House Intelligence Committee’s FISA reform package would not have prevented Russiagate or mass surveillance, either.
By Robert Romano
The House of Representatives is presently considering two separate proposals that will renew section 702 of the 1978 Foreign Intelligence Surveillance Act (FISA) — now 50 U.S.C. Sec. 1801 et seq. — legislation that was enacted after a select committee led by the bill’s author, the late Sen. Frank Church (D-Idaho), uncovered abuses by the federal government of politically motivated mass surveillance against anti-war protestors, civil rights activists and others.
Prior to the law’s enactment in 1978, the Church committee had produced a series of recommendations in six books, the second book of which was entitled, “Intelligence Activities and the Rights of Americans,” Church warned that the problems of the abuses had occurred due to a failure to adhere to the Constitution.
Church stated in the book’s foreword: “The root cause of the excesses which our record amply demonstrates has been failure to apply the wisdom of the constitutional system of checks and balances to intelligence activities. Our experience as a nation has taught us that we must place our trust in laws, and not solely in men. The founding fathers foresaw excess as the inevitable consequence of granting any part of government unchecked power. This has been demonstrated in the intelligence field where, too often, constitutional principles were subordinated to a pragmatic course of permitting desired ends to dictate and justify improper means. Our recommendations are designed to place intelligence activities within the constitutional scheme for controlling government power.”
And so, in 1978, based on the recommendations, FISA was passed and with it, a Foreign Intelligence Surveillance Court was established to regulate the terms and conditions for using surveillance against U.S. persons. A warrant could be issued from the FISA court to target a U.S. person if it was believed that he or she was an agent of a foreign power. Over time, and particularly, after the attacks of Sept. 11, 2001, these authorities were expanded to include more types of records via laws such as the Patriot Act.
Still, in spite of the expansions of authority, the framework for FISA and the Foreign Intelligence Surveillance Court has largely remained in place to police intelligence community activities and to prevent, as much as possible, abuses of the system that were witnessed in the past.
Practices which, in light of disclosures by the New York Times and Los Angeles Times in the 2000s, Edward Snowden via Glenn Greenwald and the Washington Post in 2013 and then again with the Justice Department and intelligence agencies using FISA to spy on the presidential campaign of Donald J. Trump in 2016, the opposition party in an election year, as Republicans sought to reclaim the White House on false charges that he was a Russian agent who had helped Moscow to hack to the DNC and John Podesta emails and put them on Wikileaks.
Unfortunately, the abuses began again (if they ever stopped) — and arguably have never been worse — thanks to technology in consumer markets, including the advent of the internet, cellular phones and social media, but also advances in defense technology used by the National Security Agency and other agencies, classified technologies whose capabilities can only be imagined by the American people and most lawmakers who either did not work for these agencies or who do not sit on the House or Senate intelligence committees.
But the technology does not operate itself. Although, with advances in artificial intelligence, machine learning and natural language processors, it is easy to imagine that nowadays, it is operating itself on a technical basis more and more to identify threats from within to the homeland, particularly in the mass surveillance arena, for now it still requires a human touch to truly come away with the political abuses that have been witnessed again and again, even if to direct the mass surveillance at particular ideologies.
Whereas the disclosures in the 2000s and in 2013 revealed the architecture for mass surveillance, the 2016 abuses against the Trump campaign revealed how the top secret FISA court could be used for targeted, political surveillance, the basis of which was none other than being critical of U.S. foreign policy (the Oct. 2016 Carter Page FISA warrant application cited Trump’s unconventional positions on the civil war in Ukraine as a basis for the surveillance), combined with allegations by the Hillary Clinton campaign and the DNC that their opponent was a foreign agent being adopted by the FBI and Justice Department.
The FISA law, as amended, authorized the surveillance of the Trump campaign. It wasn’t warrantless, but it was rubberstamped by the FISA court again and again and again. What Sen. Church might not have been able to imagine at the time was the possibility of collusion between the executive and judicial branches to maintain political surveillance against a candidate and then a president who was antagonistic to an entrenched political, military and intelligence establishment, even after it was revealed there was no properly predicated basis for doing so in the aftermath.
So, it goes without saying that the provisions now proposed by the House Permanent Select Committee on Intelligence to reform FISA would do almost nothing to stop the mass surveillance, nor would the provisions have prevented the Russiagate scandal, since they do not restrict the basis for targeting a U.S. person if it is believed he or she is an agent of a foreign power. A competing proposal by the House Judiciary Committee, although adding more restrictions to the process than the House Intelligence Committee’s, would not stop the mass surveillance or have prevented Russiagate, either.
At the end of the day, we are still dealing with a top-secret court whose proceedings are not a matter of public record, and how much of it is subjected to actual Congressional oversight might be debatable even among the members of the House and Senate intelligence committees.
Whereas a conviction in a criminal court might be overturned upon appeal thanks to new evidence coming to light, that is only possible because criminal trials are a matter of public record, how does one appeal being permanently subjected to surveillance or a finding of being a foreign agent when it’s not true?
The answer is there is no appeal, because the surveillance was never a matter of public record. Not under FISA as originally constructed or as amended, and neither under the House Intelligence nor Judiciary proposals. And so Congress is left with the merits of the proposals, knowing they will ultimately fall well short of the spirit and text of the Fourth Amendment’s prohibition against unreasonable searches and the warrant requirement only issuing upon probable cause that a crime has been committed. Remember, the basis for the spying is being suspected — not proven — of being a foreign agent.
Don’t like the surveillance or don’t want to be subjected to it? I suppose you could just not criticize U.S. foreign policy, since only foreign agents would do such a thing, right? Maybe toeing the company line will help, making our presidential and Congressional nominating processes akin to watching which candidate can kowtow the furthest to their true masters. Even with the veneer of a federal law and all of the protections in the world, it is still a top secret process the American people are not allowed to know about, a system of political control, calling into question whether the Trump campaign was the only campaign ever subjected to such surveillance.
Think the system can be reformed from within? Then maybe you support the House Intelligence Committee version of the renewal of these surveillance powers. Want a separate approach that had more input from other actors? Then the House Judiciary Committee might be more amenable. But at the end of the day, it is still a system that by its nature largely polices itself. Its proceedings are secret and largely publicly unaccountable. We’re not allowed to know about it.
Remember, not even the President can apparently control it, despite the supposed unitary executive under Article II of the Constitution who is supposed to administer it, because when he does, the agencies being reformed come after him.
That’s exactly what happened in 2016 and in 2017 when Trump came into office. Former National Security Advisor Michael Flynn, who had been subjected to surveillance, whether warranted or not, and who had a plan to reorganize the intelligence community, was immediately decapitated as was the Trump presidency. Whatever plans they had either for internal reforms or foreign policy were irrevocably altered when the political surveillance was carried over into the Trump administration. The system was bigger than the Presidency itself.
So, pass reforms, whatever form they may take, but at the end of the day, it will take a president to deal with this. An executive branch cannot police itself. Merging the judicial branch with it in a top-secret manner apparently doesn’t help. Compartmentalizing oversight into top-secret select committees doesn’t help. Only the President under the Constitution can do it, so you better vote for a good one, and even then, there’s no guarantee.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
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