Before FISA, presidents claimed inherent executive authority to engage in such activities for national security. After FISA, the executive could still carry them out, but only with approval of federal judges serving temporarily on the Foreign Intelligence Surveillance Court, a.k.a. the “FISA court” — and following a legal framework set by Congress. In short, FISA’s cure for a single-branch monopoly over secret government was: more branches.
And so it is, or should be, disturbing to every American to read — in Justice Department Inspector General Michael Horowitz’s report on the FBI’s procurement of a FISA court warrant against former Trump campaign adviser Carter Page — how poorly the four-decade-old FISA compromise protected a U.S. citizen’s civil liberties amid national and, indeed, international political tension.
Horowitz damned the FBI with faint praise, noting that it launched a counterintelligence investigation of Page and others after meeting the bureau’s very low evidentiary standard — an “articulable” factual basis to suspect he might be a Russian agent — and that it was not provably politically motivated.
Thereafter, his report — by far the most detailed public examination of FISA’s real-world functioning ever — ticks off one episode of FBI corner-cutting and fact-massaging after another, up to and including the conscious forging of evidence by an FBI lawyer.
Garbage went in to (unwitting) FISA judges, and garbage came out: surveillance warrants that might have been changed or denied altogether if the FBI had played it straight.
FBI Director Christopher A. Wray promised swift action on the nine procedural and other recommendations in Horowitz’s report. Fine — but many violations that Horowitz identified occurred despite bureaucratic improvements in response to previous issues.
Also necessary, but not sufficient: individual accountability for misdeeds the inspector general’s report documented, along with Horowitz’s promised new review to see whether the Page case is exceptional or part of a broader pattern.
What we really need is more Horowitz.
Specifically, there should be permanent quality control, via mandatory random inspector general audits — as probing and public as Horowitz’s — of a certain share of FISA warrants on U.S. citizens or permanent residents each year.
The FISA court approved surveillance on 232 such “U.S. persons” in 2018, according to the director of national intelligence. If those cases got the full Horowitz treatment at the same rate the Internal Revenue Service audited tax returns showing $1 million-plus in income in fiscal 2018 — 3.2 percent — there would have been seven public airings.
That should be enough to deter misconduct and negligence, but not so much as to chill aggressive counterintelligence.
Random audits don’t hinge on the naive notion that bureaucratic process can immunize an organization against a determined cheater.
Instead, they embody the adage “trust but verify,” as well as the equally wise “incentives influence behavior.”
They also beat another oft-proposed reform: a permanent “defense” lawyer, attached to the FISA court, to dispute FBI warrant applications. The FISA court itself already serves this function (or should). And what’s to prevent a new “repeat player” in the process from getting co-opted, over time?
Far too much time and energy have been wasted on trying to prove “bias,” as if anyone ever writes a memo declaring “I hereby cut corners because I want Donald Trump to lose.” The fact of secret government wrongdoing — especially affecting individual constitutional rights — is even more significant than the motivation for it.
Congress, the Justice Department, the FBI and the FISA court should focus on making it in everyone’s self-interest to follow the rules and analyze facts objectively, thus preserving the integrity, actual and perceived, of a process that, despite its flaws, is still vital to national security and more protective of civil liberties than what the United States had before 1978.
“Political bias” is far from a crystal-clear concept in any case. It can take the lofty form of a “higher loyalty,” whereby a G-man appoints himself Rule-Bender for the Republic (James B. Comey). Or it can take the crasser form of putting partisan spin on what are meant to be nonpartisan processes (William P. Barr).
In that regard, too, we need more Horowitz. In his investigations of highly contentious issues involving the FBI and President Trump, Horowitz has modeled old-fashioned impartiality, sticking to the proven facts and resisting repeated invitations by both Democrats and Republicans to refract them through their partisan lenses.
His work’s implicit but unmistakable message: The ends do not justify the means — and if you don’t believe it, look how much trouble people who think otherwise have gotten into.
Correction: Because of an editing error, an earlier version of this column incorrectly changed the quoted term “U.S. persons” to “U.S. people.” This version has been corrected.