Should we dump FISA -- and put Congress in charge of surveillance oversight?

Why not? Congress does such a great job in overseeing its other responsibilities, no? That’s both the point and not quite the point, our friend Andrew McCarthy argues today in adapting an excerpt from his excellent book Ball of Collusion into a column arguing for the repeal of the Foreign Intelligence Surveillance Act. Congress erred in crafting FISA in both constitutional structure and incentive-setting by putting the judiciary as a check on a non-judicial process, the former federal prosecutor writes — and dodged the political accountability that should have rested with itself.

The catalyst for this argument is the release of the Michael Horowitz report on the FBI’s surveillance of Carter Page in Operation Crossfire Hurricane. It’s the most explosive FISA scandal in the law’s 41-year history, and it exposes just how little accountability the FBI has in securing surveillance warrants from the FISA court (more accurately known as FISC). I summed up the scandal in my column at The Week, in which I argued for more accountability to salvage FISA:

There were “multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete, or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.”

One particularly galling omission was a failure to notify the FISA court of information the FBI received from “another agency” that Page was in fact their intelligence asset on Russia, and considered to be reliable. Not only was this known to FBI investigators and managers, they relied on Page’s work for the other agency as part of their cause to seek surveillance of Page. At the same time, the FBI had already determined the Christopher Steele “dossier” on Trump not only couldn’t be corroborated but in fact conflicted with information developed in the investigation. And yet the FBI never bothered to inform the court of these issues, essentially cooking up a case for surveilling Page.

Horowitz concluded that the FBI’s senior management had enough knowledge of the situation that it “should have resulted in questions being raised regarding the reliability of the Steele reporting and the probable cause supporting the FISA applications, but did not.” That failure did not only reflect incompetence or worse by the investigators, but “of the managers and supervisors, including senior officials, in the chain of command.” That followed on the heels of Horowitz’ systematic criticism of Comey’s leadership in the Hillary Clinton investigation published 17 months earlier.

And what about the claim that political bias didn’t drive these “errors”? Horowitz corrected that misperception in his Senate Judiciary testimony as well. All he found was that there was “no evidence” of political bias. When asked whether he could say the FISA court misrepresentations weren’t the result of political bias, Horowitz responded, “I don’t know.”

After this, I argued, the risk is that the FISC would become skeptical enough of FBI credibility that it might start refusing warrants where real espionage and terrorist threats exist. McCarthy disagrees, and says that’s actually part of the flaws of FISA that allowed James Comey’s FBI to abuse its power for political purposes (a conclusion Horowitz does not reach but also does not exclude). McCarthy makes a compelling point about the incentives before judges in these cases:

The judiciary is now ensconced in national security matters. This well-meaning arrangement is counterproductive. It undermines accountability: dragging the judiciary into non-judicial matters (the execution of security policy), giving executive excesses the veneer of judicial approval, and making the abuse of surveillance authority more likely, not less.

If the executive’s national security agents represent that they believe a foreign power is threatening the United States through the activities of a clandestine agent, it is only natural that a judge would be disposed to grant surveillance authority. Again, national security is principally an executive function: The courts are not responsible for it, have no expertise in it, and do not answer to the people whose lives are at stake. Would you want to be the judge who tells the FBI and the Justice Department that they lack sufficient evidence to monitor a suspected terrorist mass-murder plot? That they may not monitor a Russian cabal suspected on thin proof of undermining American elections? Of course not.

The structure of the FISA law creates problems of accountability on both sides of the warrant process. The judges have little or no expertise in national security issues and can’t determine independently whether the FBI’s claims are credible, plus they have no political accountability for their decisions. The FBI does not face an adversarial process for its warrant applications (neither does law enforcement in many instances, for that matter), plus these operations are so secret that they are almost never known outside of the FBI’s offices. That means the kind of accountability seen with the very public Inspector General probe in Operation Crossfire Hurricane is not only rare, it’s almost unheard of.

All of this adds up to an environment ripe for the kind of impunity Horowitz describes in his report. It’s the kind of accountability-free environment where an FBI lawyer can commit fraud on the FISC by altering evidence without any fear of consequence. If this hadn’t blown up into a political scandal — largely by Democrats wanting to reverse the 2016 election — who would have known?

Unfortunately, we don’t live in a world where we can tell the FBI to stand down from domestic counterintelligence operations. Shifting the task and the warrant applications to another executive agency doesn’t solve the accountability problem either. How do we get more accountability and force a more stringent enforcement of the warrant process in domestic counterintelligence operations?

Make Congress do it, McCarthy writes:

Of course, no one, myself least of all, is saying the Justice Department, FBI, and other intelligence agencies should have no one checking their work. Quite the opposite. The question is who should check their work, and the answer is Congress — the branch politically accountable to the self-governing people who must balance their interests in security and privacy. Note that the same FBI that told the FISA court about its Trump–Russia investigation took pains to conceal the probe’s existence from the congressional Gang of Eight — which would likely have been much quicker to spot and object to political spying, and to ask hard questions about the flimsiness of the stated probable cause.

McCarthy acknowledges that Congress has spent much of the past century crafting ways to avoid effective oversight and accountability. FISA is among those efforts, he argues, one that has largely flown under the radar before Horowitz. However, the post-Crossfire Hurricane involvement of Congress in the Page warrant is instructive. The congressional intelligence committees both found the episode at least curious, with then-chair of the House Intelligence Committee Devin Nunes openly accusing the FBI of abusing its authority and the FISC of being suckered — which turned out to be largely correct. If nothing else, congressional oversight has an appropriate adversarial element baked into it. Had the FBI been required to make a case for targeting Page to a panel consisting of both Republicans and Democrats with intel oversight experience, would they have even attempted it at all?

McCarthy’s argument to hand this responsibility back to Congress may seem counterintuitive, given the extreme level of dysfunction it has been displaying of late. From a constitutional perspective, however, it makes more sense than the star-chamber approach that produced the three-year nightmare that Michael Horowitz detailed in his report.