OPINION:
The powers granted to the government under the Foreign Intelligence Surveillance Act have been so badly abused that the law should be either significantly revised or allowed to expire in December.
The intelligence community insists that if FISA is allowed to expire, it will be deprived of an essential weapon against terrorism, espionage and more. They are probably right, but that raises the question of whether and how FISA should be reformed.
The abuses of FISA perpetrated by the FBI and CIA are best known from the Russia collusion scam they perpetrated against President Donald Trump. It was the most effective political dirty trick in American history. The FBI, as special counsel John Durham’s final report says, broke many of its own rules in conducting the Crossfire Hurricane investigation of Mr. Trump and his campaign based on the so-called Steele dossier.
The report says that the FBI used “raw, unanalyzed and uncorroborated” allegations as the basis for that investigation.
Mr. Durham’s report also said that the FBI received “highly significant intelligence” from a trusted foreign source that Hillary Clinton’s presidential campaign planned to vilify Mr. Trump by tying him to Russian President Vladimir Putin. This, according to the report, was intended to divert attention from what should have been an enormous scandal about Mrs. Clinton’s unsecured private email system, which she, as secretary of state, and her staff used to illegally exchange highly classified information. In a July 2016 press conference, then-FBI Director James Comey made the absurd statement that there was no basis for prosecuting anyone over their use of the unsecured private email system.
The FBI knew that the Steele dossier was a political move by Mrs. Clinton’s campaign. Evidently, there was a pro-Clinton and anti-Trump political cabal operating the FBI.
The FISA Court functions in secret. We get only brief glimpses into its work and what the FBI does to get surveillance warrants. Two successive chief judges of the FISA Court have criticized the FBI in opinions, one of which said that the FBI’s conduct “calls into question whether information contained in other FBI applications is reliable.”
The FBI asserts that it has made procedural reforms that will prevent future abuses. Right.
The FBI’s abuses of power apparently went much further, according to two Justice Department inspector general reports in 2019 and 2021. Moreover, according to a recently released April 2022 opinion by then-FISA Court Judge Rudolph Contreras, the FBI abused its warrantless search powers to investigate Americans almost 300,000 times in a year.
In March, Rep. Darin LaHood, Illinois Republican, a member of the House Intelligence Committee, said that a Justice Department’s 2021 inspector general revealed that the FBI had abused its power under FISA Section 702 to search databases for his name.
Mr. LaHood, as he told The Washington Times on May 23, is leading a bipartisan effort within the Intelligence Committee to craft FISA reforms at the request of Chairman Mike Turner, Ohio Republican. Mr. LaHood said the subgroup was making progress but emphasized that a “clean” FISA reauthorization — i.e., without reforms — would not pass, nor would he support such a bill.
A source close to the FISA subgroup said that among the reforms being considered are criminal penalties for intentional violations of the law, limits to the number of people in the FBI who have access to FISA materials and further oversight by Congress.
Any effort to save FISA should start now, as Mr. LaHood is attempting to do. At this point, several fixes come to mind.
First, let’s get FISA out of politics. To do that, one of two things will be necessary. The FISA court could be (1) disbanded, and jurisdiction over FISA warrant applications be turned over to ordinary federal courts, or (2) divested of jurisdiction over the investigation of any person who is a candidate for any federal or statewide office, again turning those applications over to regular federal courts. Either reform should prevent the FBI from getting surveillance warrants without the full justification required by the Fourth Amendment.
Second, the FBI was able to get surveillance warrants from the FISA Court in the Crossfire Hurricane investigation by submitting sworn affidavits without supporting evidence attached. Some of those sworn affidavits were false.
FBI procedures require a “Woods file” in which all the evidence supporting a FISA court surveillance warrant application is supposed to be kept. To prevent the sort of abuses of power common in Crossfire Hurricane, FISA should be modified to require that the file be part of every application to any court and must be examined by the judge before a warrant is signed.
Third, the FBI should be legally barred from searching any database with regard to a U.S. citizen or business unless there is probable cause to believe that person or company is engaged in a crime on behalf of a foreign entity.
There will always be politically corrupt people who will abuse their power and endanger our democracy. FISA, as Mr. LaHood’s subgroup may recommend, should be amended to include criminal penalties for the actions such people take or permit others to.
The FISA reauthorization question comes down to “mend it or end it.”
• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and contributing editor for The American Spectator.
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