Abuse of the FISC Cries for Reform

On December 9, 2019, Michael Horowitz, the Justice Department’s Inspector General, released his report regarding abuses by the Foreign Intelligence Surveillance Court (FISC).  Actually, it was not so much the court itself than the agencies that go before the court.

The FISC is a necessary tool in the fight against global threats.  It was created to protect the important constitutional rights of American citizens while permitting intelligence community surveillance of legitimate suspects.  To protect the methods and sources of the intelligence community, the court meets secretly.  In any free society, a secret court of any kind must possess two elements: (1) a legitimate existential threat to citizens, and (2) trust in the abilities and the professionalism of the agencies appearing before the court as well as trust in the judgment of the court.  Trust is the most important aspect since it enhances systemic strength.

Unfortunately, that trust has been seriously eroded by the corrupt actions of the operatives within the Department of Justice and the FBI as well as possibly the CIA.  With the abuse documented and somewhat acknowledged, no one denies the need for the FISC.  It is a necessary tool in combating terrorism, international crime, and enemy espionage.  It leads to reduced law enforcement response time and acting on legitimate threats before nefarious actors can carry out their plots.

Perhaps more important, the court stands as a bulwark in protecting the constitutional rights of citizens against government abuses.  Horowitz found that some law enforcement political cronies used premeditated fraud in altering email from the CIA which they then used to submit a fraudulent warrant application which the FISC rubber-stamped.

The target of that warrant, Carter Page, was never charged with any crime in connection with the initial warrant or subsequent renewals of warrants against him.  Carter was a Trump campaign associate and the warrant opened the door for spying on the Trump campaign and transition after his victory.  After the Horowitz report, FISC judge Mary Collyer issued a rare public rebuke against the FBI’s lack of honesty noting that information in their possession at the time refuted many of the claims included in the warrant application while other claims were unsubstantiated.

Words and admonitions are nice, but Collyer herself is equally guilty in the abuse.  The FISC failed to responsibly question the application.  The FBI alleged that a Naval Academy graduate with a connection to the Trump campaign was a Russian asset.  If anything, he was a CIA asset, a fact not brought to the court’s attention.  Perhaps the court believed it was erring on the side of caution, but that is not an excuse to violate the constitutional rights of an American citizen, especially one who is an associate within the political campaign of a candidate.

Attorney General William Barr knows that the FISC is an asset in combating legitimate threats and he wants to save it.  He has taken a risk and now requires that he himself sign off on any FISA warrant before anyone goes to the court.  Harvard law school professor, Alan Dershowitz suggests a target of surveillance “advocate,” someone who can review and question the government’s evidence in the warrant.  There are other tweaks to the system that can help restore some semblance of trust in the court and the system.

Perhaps the greatest way to restore trust in the short-term is to hold criminally liable those who abused the system.  A prison sentence of some deterrent length may have government actors thinking long and hard before using the FISC for political gain or ax-grinding.  At a minimum, in the Carter Page case, they criminally mishandled classified material since the FISC is a classified court.

In many respects, the media were equally important co-conspirators in this case.  Instead, they decided to serve as a public relations tool for crooked intelligence and law enforcement actors and agencies.  The Washington Post and New York Times repeatedly and unquestionably touted intelligence leaks that proved to be false.  Congress can do very little to reign in the press and their insatiable desire of and search for anything detrimental to Trump or supportive of those who oppose him.  But they can act to reign in the agencies that go before the FISC and reform the actions of the court itself.

There are several suggestions.  Barr now requires a blanket approval by the Attorney General that could be amended by law to require Attorney General approval if the target of any warrant is in any way associated with a political campaign.  This would put the AG front and center and criminally liable should there ever be a repeat of the Page scenario.  Exculpatory evidence should be presented and facts in warrants unverified should be brought to the attention of the court so that they can weigh the evidence and make an informed decision.  Closer Congressional oversight of the court may also help uncover potential abuses.

Instead, as it exists today, we have a rogue court rubber stamping secret warrants that lead to spying on American citizens being submitted by rogue law enforcement agencies and intelligence community operatives.  As it stands, the current system lends itself to systemic abuse.  It should likewise be remembered that not a single charge has been leveled against Carter Page despite four warrant applications.

It would be foolish to abolish the court altogether.  But the chorus for that course of action will only rise if the Durham probe proves what many people fear- a valuable tool in the fight against espionage and terrorism has been played as a fool by actors in the government.  Despite the media whitewashing of the IG report which contained some serious problems, that may have been the first nail in the court’s coffin.