Scarcely more than a week ago, Justice Department Inspector General Michael Horowitz released a doorstopper of a report that scathingly indicted the FBI for its handling of surveillance applications submitted to the court under the Foreign Intelligence Surveillance Act (FISA). The FBI’s original decision to open the investigation into possible foreign involvement in the Trump campaign was justified, Horowitz concluded, but continuance of that investigation past an early point may not have been.
As a new order from the FISA court puts it, serious errors undermined the FBI’s four applications for electronic surveillance of former Trump adviser Carter Page. The inspector general report “documents troubling instances in which FBI personnel provided information to NSD [the National Security Division of the Justice Department] which was unsupported or contradicted by information in their possession. It also describes several instances in which FBI personnel withheld from NSD information in their possession which was detrimental to their case for believing that Mr. Page was acting as an agent of a foreign power.”
The ordinary Fourth Amendment rights of citizens are at stake here. To remind, this is “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”
The FBI failed to adhere to this probable-cause standard. Given the vast surveillance powers available to the agency and the dependence of the FISA court on the perfect integrity of FBI applications for the legitimacy of the warrants and surveillance authorizations the court approves, this, too, is surely an urgent constitutional matter. The right functioning of our executive branch depends on the faithfulness of the president. The right functioning of the FBI depends on its “heightened duty of candor,” to quote the court report.
House Speaker Nancy Pelosi (D-Calif.) concluded her post-impeachment news conference by stressing the “urgency” presented by President Trump’s use of the powers of his office to solicit political favors from Ukraine. That, she suggested, motivated the House’s speedy movement toward impeachment. A parallel urgency applies in the FBI case.
Indeed, the FISA court has given the FBI a deadline of Jan. 10 to “inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application.”
The court continued: “In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.”
Without a sound basis for confidence in the heightened candor of the FBI, the court cannot trust the FBI’s applications for surveillance authorizations to be reliable. Not only our Fourth Amendment rights but also national security hinge on cleanup at the FBI.
Congress should bring the same speed and intensity to this work as to impeachment. House Democrats have presented themselves as the standard-bearers for our constitutional democracy. If they are sincere, their expressed commitment should also motivate them to hold appropriate parties responsible at the FBI.
Every time I — or anyone — invokes the importance of restoring sound foundations for constitutionalism and self-government, we sound pompous. I know that. I would like to be able to find a way to laugh at myself and everyone else who cares about such abstractions as separation of powers and checks and balances. I’ve even spent time reading Mark Twain to try to figure out how to find our current predicament funny, and myself comic. But I just haven’t been able to get there, the help of Ross Douthat notwithstanding.
What I can say, though, is that if one is serious about constitutional democracy, one needs to be consistently serious. This means following the project of house-cleaning from the office of the president to the FBI. We can’t leave the parlor clean and the basement full of mold. Doing that would be laughable.
Danielle Allen is a political theorist at Harvard University and a contributing columnist for The Post.