Time to jettison FISA court?

The FBI is reeling from the release last month of a report by Michael E. Horowitz, inspector general for the Department of Justice (DOJ). Horowitz found that the FBI, a DOJ subagency, did a shameful job in obtaining warrants to surveil Carter Page, a one-time aide to the 2016 campaign of now-President Trump. Last week, the court at the center of this case, the Foreign Intelligence Surveillance Court (FISC), “ordered the FBI to explain what it’s doing to ensure applications for wiretaps are legally sound and accurate,” according to a Bloomberg News story the (Waterbury, Conn.) Republican-American carried Dec. 18.

While the FBI’s conduct in this matter was an affront to the rule of law, FISC didn’t cover itself with glory, either.

In 1978, Congress passed, and President Jimmy Carter signed, the Foreign Intelligence Surveillance Act (FISA). Among other things, this law established FISC. “The court entertains applications submitted by the United States government for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes,” according to its website. The website also indicates FISC is composed of 11 U.S. District Court (trial court) judges, who are assigned to FISC by the chief justice of the United States.

During the 2016 campaign, the FBI sought to surveil Page, who supposedly was a go-between for the Trump campaign and the Russian government. Mr. Horowitz found the FBI’s warrant applications to FISA had “significant inaccuracies and omissions,” and that FBI personnel “failed to meet the basic obligation to ensure the applications were scrupulously accurate.” The FBI relied too much on a dossier compiled by the unreliable Christopher Steele, a former British spy with ties to the campaign of Hillary Clinton, Trump’s Democratic opponent. These “mistakes” seem indicative of political bias, Horowitz’s official conclusion notwithstanding.

In a Dec. 20 column about FISC’s order to the FBI, The Wall Street Journal’s Kimberley A. Strassel noted FISC Presiding Judge Rosemary Collyer has been aware of the FBI’s failures for nearly two years. Strassel indicated that in February and June of 2018, Rep. Devin Nunes, R-Calif., then chairman of the House Intelligence Committee, wrote to Judge Collyer to inform her of the trouble spots. According to Strassel, the second of these letters noted Congress had “uncovered evidence that DOJ and FBI provided incomplete and potentially incorrect information to the court.” By Strassel’s account, Judge Collyer was dismissive.

To say the least, Judge Collyer’s attitude is troubling. Strassel perfectly encapsulated the problem. “The House Intelligence Committee has oversight jurisdiction of FISA. And (Rep.) Nunes didn’t come to the court with mere suspicions; he provided facts, following a thorough investigation. The court at the very least had an obligation to demand answers from the FBI and the Justice Department.”

FISA was adopted in response to “widespread intelligence abuses” in the 1960s and ’70s, according to PBS. As the Page case demonstrates, abuse still is occurring, and the FISA system isn’t stopping it. While FISC has ordered the FBI to chart a new course, the court’s 2018 indifference raises serious doubts about FISA’s future.

* Guest editorial from the (Waterbury, Conn.) Republican-American


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