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John J. Bastiat / March 12, 2020

To FISA or Not to FISA

Reforming government surveillance is a lot more complicated than meets the eye.

We’ve written on a number of occasions about the Foreign Intelligence Surveillance Act (FISA) and its 9/11 progeny — the PATRIOT Act — and whether either should be renewed. Usually we debate these around budget time, since that’s the time to kill one or another if it’s going to be killed. This time is no different. Frankly, the only thing we’ve concluded thus far is that both should be killed outright — and that they should both continue. Our guess is that we’re not alone in our ambivalence. Here’s the “why” backing this oxymoronic stance.

On the “pro” side, good reasons exist for why there hasn’t been another 9/11 since 2001: Intelligence activities authorized under the post-9/11 FISA and PATRIOT Act statutes, much better cooperation between federal (and state) agencies, and the use of the hyper-secretive federal Foreign Intelligence Surveillance Court (FISC) search warrants have all bolstered national security and made us all safer. It’s also axiomatic that a government must be able to keep certain secrets to maintain such protections: If a foreign state or terrorist actor gains knowledge of the intelligence activities conducted against it, it will most certainly act to evade or counter those activities. So at least some level of trust must be vested by the public in government to empower it to conduct such activities that are deemed critical to the nation’s overall safety and security.

As former Assistant U.S. Attorney Andrew McCarthy has noted, two key PATRIOT Act provisions — the so-called “roving wiretap” and the “lone wolf” sections — remain critical to protecting the public from foreign state and terrorist actors. Roving wiretaps allow government agents to attach the communication-related search warrant to the foreign agent instead of the agent’s phone, so a new warrant is not needed to continue surveillance every time a new “burner” phone is used. The lone-wolf provision permits the government to monitor foreigners, not U.S. citizens or legal residents, who are engaged in highly suspicious, terrorist-related activities without directly connecting them to a foreign state or terrorist organization. The idea is that such connections are often hard to make and take time and intelligence gathering to firmly establish. But this provision is effectively authorization to monitor under “duck theory” intelligence operations: If it walks and quacks like a duck, chances are it’s a duck. The longer government agents are able to observe behaviors highly correlated to known terrorist activities, the more likely such connections will be found. These two measures seem sensible enough to us, by themselves. But the collective capabilities and protections of the federal government are not without a price.

Indeed, on the “con” side is a host of horribles, many of which have been ostentatiously paraded before the American public over the past four years by unwitting Democrats who were late by at least one presidential election to recognize the unintended consequences of their actions. A few of the “floats” in this parade include using the most powerful intelligence apparatus in the world as a weapon to target political enemies; stockpiling “big-data”-sized records of millions of calls made in the U.S. because that data “might” be needed, a violation of Fourth Amendment protections; conducting “deep state” shadow-government activities (note to leftists: using the phrase “resist” does nothing to help paranoia — justified or not — aimed at this perception); abusing authorities and powers in serial fashion; and making false arrests and trumping up charges to “squeeze” enemies of the deep state. The list is virtually endless and has taken its toll, culminating in the defenestration and public humiliation of the FBI and virtually all of the so-called “intelligence community.” The collective esteem of these once-venerable organizations will take a very long time to rebuild, if that’s even possible.

So what to do? The people entrust their governments with the authority and responsibility to take care of them. That hasn’t changed and it never will. If a government cannot take care of its people it will ultimately fall. Moreover, abuses can and will happen in every government. Governments are composed of humans, after all, and humans err. So the question really is how to deal with these realities. Do we — as has been suggested for both the FISA and PATRIOT Acts — trash such well-intended government measures and “start over,” or do we try to use the most recent lessons learned to surgically excise the “badness” and keep the “goodness”?

To us, at least, the answer seems very dependent on the level of “surgery” needed. Are we talking mole removal, or are we talking organ transplants? We think using a let’s-not-throw-baby-out-with-the-bathwater perspective is a good approach to solving this problem, at least initially. Is there a way to avoid the abuses we’ve just seen without scrapping decades’ worth of well-intentioned legislation? If so, a foundational “must” to preclude such ash-heaping is to restore intra-governmental accountability.

In our view, putting federal court judges — who are largely unaccountable to the people — in charge of making calls on intelligence activities is a total nonstarter to such a restoration. Federal judges should be put in and made to stay in their proper lanes: deciding matters of federal law, not segueing into the lanes of foreign intelligence in which they have neither expertise nor any business being in. And they should certainly not be put into positions in which under-the-cover-of-secrecy political temptation and intrigue are likely to find footholds and metastasize, as these continue to do. Congressional oversight, periodic reviews, and power-of-the-purse checks on executive-run intelligence programs provide at least some measures to remedy the rogue operations such as those we’ve witnessed over the past half decade. Pulling federal judges out of their FISC roles as de facto buffers from such accountability is perhaps a modest measure and may not resolve all the problems associated with FISA and the PATRIOT Act. But getting unaccountable federal judges out of the mix can only help to restore the badly needed direct paths of accountability so clearly missing under the present statutory construct.

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