The great FISA debate: Politics puts us at risk once again
Read the following with that movie trailer guy’s voice in your head: “In a world where politicians constantly fixate on imagined threats, instead of actual dangers, comes a pretend crisis that will affect almost no one, but is worth its weight in political hyperbole.”
Featured on a cable news channel near you, on an hourly basis: What to do about FISA, that acronym 90 percent of Americans had never heard of a couple of years ago but now is the new four-letter word that starts with “F.”
Politicians, conservative and liberal, are beating on the Foreign Intelligence Surveillance Act — FISA’s formal name — as if it were a Mike Bloomberg debate doll. For different reasons, everyone is mad at FISA. Since we’re frustrated that the chief protagonists who actually abused it aren’t being held responsible, then let’s pull its teeth or make it harder to use. That makes a lot of sense.
The watchword for now is “reform” and, truth be told, there’s room for that. Any governmental authority should have safeguards that get reconfigured as it is used and, unfortunately, abused. Safeguards are tremendously important in our constitutional democracy.
But prudent reconfiguration can get drowned out by dramatic overreactions — not that politicians ever feign indignation to gain political advantages. The danger with the current debate over FISA is that crippling restrictions crafted out of political spite that make us less safe will be substituted for more sensible precautions.
Congress — surprise — is apparently stymied on how to reform FISA and in danger of allowing the law to lapse as various interests demand legislation ranging from “sweeping reforms” to inventing some kind of “friend of the (FISA) court” who will look after the interests of the American people. That’s kind of in the judge’s job description — but, okay, let’s create another layer of bureaucracy instead of holding judges accountable for insouciant oversight.
There is no doubt that FISA powers of electronic surveillance are incredibly powerful and invasive. That is why they must be handled with care, particularly when directed against a U.S. citizen. The FISA warrant to electronically eavesdrop on Donald Trump’s former campaign adviser Carter Page was based on Russian-supplied fiction and was the farthest thing from “handle with care.”
That is where the need for safeguards truly lies. They should be directed toward preventing abuses of an otherwise valuable tool, rather than denuding the tool itself or holding hostage the reauthorization of its highly effective powers.
There are indications the FBI is implementing new procedural guidelines designed to make sure another debacle like “Crossfire Hurricane,” the code-named investigation to monitor those around Trump in 2016, cannot happen again. Let’s hope so. The bureau probably wouldn’t survive a replay.
However, there are other indications that a parallel, time-tested, cynical Washington maneuver is also in play: Round up the “expendables.”
Steps have been taken to purposefully and publicly identify an FBI “case agent” assigned to the Crossfire Hurricane investigation, and specifically the FISA application on Carter Page, and brand him as responsible for the errors and omissions related to that 20-car pile-up.
In addition, a FISA court judge recently banned certain FBI agents from ever appearing before the court again because of identified bad behaviors. The result of all this is quite possibly destroyed careers, if not dismissal from the FBI. Mistakes have consequences, fair enough.
But here’s the rub: None of those lower-level FBI agents who have been singled out said, “Hey, let’s open a counterintelligence investigation into the Trump campaign and work up a FISA surveillance warrant.” It doesn’t work that way in the FBI for something that sensitive.
No, that decision came from many pay grades higher. The tone, direction and approvals related to Crossfire Hurricane came from the top. Disciplinary actions that single out worker bees and allow the decision-makers to skate don’t contribute to meaningful reform, and are not just.
In the end, it would be difficult to overstate the value of the government’s ability to listen in on the intentions of foreign foes and terror groups, particularly as they operate within our borders. Losing or limiting this ability should not be a trifle. It would directly impact the safety and security of each one of us.
The concerns of President Trump and his conservative allies, as well as the concerns of civil libertarians and their liberal allies, should be taken seriously — but also kept in perspective.
Civil libertarians tend to imagine government as some sweeping, all-seeing Sauron constantly watching us all; in reality, normal FISA surveillance can be used only sparingly against a slice of deserving targets because of severe resource constraints. We, as a nation, are getting and exploiting only a fraction of the threatening intelligence that FISA would allow us to get and exploit. And that’s on Congress.
There is little doubt any longer that the president’s campaign, a U.S. entity made up of U.S. citizens, was victimized by some actors at the top of the FBI who abused FISA for political purposes, rather than legitimate foreign intelligence objectives. Trump is right to seek remedies that will ensure no other presidential candidate is similarly maltreated.
But that particularly egregious abuse of FISA was an anomaly. It will remain so if the president’s reform demands focus on limiting the abilities of potential abusers, not on the substance of the FISA authorities. Otherwise, he risks undercutting one of the most important tools he has for fulfilling his first duty to protect and defend the United States.
Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public-safety agencies on strategic mission technologies.
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