FISA court's rebuke of the FBI: It broke or ignored the rules and our rights

The presiding judge of the Foreign Intelligence Surveillance Court (FISC) has issued a stinging rebuke to the FBI in the wake of Justice Department Inspector General Michael Horowitz’s report on the bureau’s serial abuses in the surveillance of Carter Page.

In the FISC’s assessment, the derelictions in the Page surveillance warrants are so serious, the court’s judges cannot be confident that any warrant applications the FBI has submitted are accurate and complete — i.e., that the bureau’s assertions have been true and, even if true, were not misleading because of the omission of relevant information. 

Consequently, in an extraordinary public order on Tuesday, the secret court’s presiding judge, Rosemary Collyer, directed the Justice Department and the FBI to conduct a thorough review of all submissions the bureau has made to the FISC. They have about three weeks (until Jan. 10, 2020) to explain what steps have been taken to assure the candor of each submission.

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Given that there have been many submissions, this seems like a great burden in such a crunched time frame. The FISC, however, is simply demanding to be satisfied that the FBI has done what it has led the court to believe it has been doing all along. Justice Department and FBI procedures, along with FISC rules, require that every factual assertion in an application to the FISC be verified and accurate. The bureau is supposed to go through this process of validating every fact alleged in every foreign intelligence surveillance case as a matter of routine. 

The Page surveillance warrants demonstrate that the process either is broken or has been ignored.

There are structural problems (I have always believed they are constitutional problems) with the Foreign Intelligence Surveillance Act (FISA). That is the 1978 legislation that created the FISC, intruding the judiciary into the innately political function of intelligence collection — political in the sense that national security is a responsibility of the political branches of government. These problems may only be addressed legislatively. It is the FISC’s function to apply FISA, not rethink it. 

All that said, it is obviously vital that the court take curative action. The inspector general’s (IG)  report outlines shocking deception of the FISC and violations of Page’s civil rights. The court has supervisory responsibility over the orders it has issued, and it must evaluate the credibility of future government submissions. The IG report’s revelations, moreover, come on the heels of Obama-era surveillance abuses. In 2016, for example, the court observed that, in administering FISA programs, the intelligence community was guilty of an “institutional lack of candor” — engaging in and concealing the unauthorized interception of communications. The same intelligence community, on the watch of CIA Director John BrennanJohn Owen BrennanEx-CIA chief calls Trump intel shakeup a 'virtual decapitation' of the intelligence community DOJ attorney looking into whether CIA withheld info during start of Russia probe: NYT Federal prosecutor looking into Brennan's role in Russian interference findings: report MORE, was caught hacking the Senate Intelligence Committee

The most palpable problem with FISA involves what Judge Collyer describes as the heightened duty of candor. 

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It is not unusual for investigators to meet secretly with judges to obtain highly intrusive warrants. But there’s a big difference between criminal investigations and counterintelligence: When FBI criminal investigators and federal prosecutors secretly apply to a judge for an eavesdropping, search, or arrest warrant, they know their work is going to be checked. In the criminal justice system, the operating assumption is that there eventually will be an indictment, which will trigger due process requirements of discovery. If government officials have made false or misleading statements to the court, if they have withheld critical exculpatory information, that will become known. There will be serious consequences.

In stark contrast, counterintelligence is classified. The goal is to collect information for national security purposes, not build criminal prosecutions. The vast majority of the time, there will be no indictment — and certainly no discovery. The system has no internal check to keep people honest. 

In FISA proceedings, the only due process an American can ever get occurs in that secret meeting between the judge and officials from the Justice Department and FBI. If the FISC cannot ensure that intelligence officials honor the codified standards of integrity and transparency, the system fails. And unlike defense counsel in a criminal case (many of whom are former prosecutors), the court is not staffed with experienced investigators. It has neither the capability nor the institutional competence to pore over government submissions, spot the weaknesses, locate witnesses, examine documentary proof and dismantle a weak government presentation. That is not the judges’ fault. What we are talking about is simply not their job. Thus, the court has no choice but to rely on the government’s candor. 

That is not to say the court is blameless. Judge Collyer is right to be outraged at the FBI’s malfeasance here (as well as the Justice Department’s failure to detect it). She has nothing to say, though, about the uncomfortable fact that the FISC did a poor job here, too. The version of the Page warrants made available publicly is heavily redacted, but what has been revealed shows the probable cause showing was rife with problems — uncorroborated sources; the FBI permitted to “speculate” and offer its “beliefs” about its main informant, rather than being pressed by the court to question him; news media stories offered as evidence, and relied on for 11 months even though the FBI had plenty of time to do independent investigation. 

And even after it had become apparent, based on congressional investigations, that significant abuses had occurred, former FISC Chief Judge John Bates made this astonishing public statement: “I will note, and note with some force, that I have seen nothing that indicates that the court was misled, that the Department of Justice or the intelligence community made misrepresentations to the court.” Really? 

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There is no good fix for this problem because the root flaw is conceptual. Again, national security is not a judicial responsibility. The executive branch must have secret sources of information, including foreign intelligence services, on whom we rely for essential information in places where the threat to America is profound and we do not have good sources. Those intelligence services will not share information with our agencies if we cannot keep secrets — particularly, if we treat intelligence collection as if it were a criminal justice issue and design a system that forces ever more disclosure. 

Moreover, it is not a judicial function to participate in the executive branch’s intelligence operations. The court is not an investigative body. Being politically insulated by design, it is not accountable to the people whose lives are at stake — the maintenance of whose security is the responsibility of elected officials. As the Page FISA fiasco shows yet again, there must be vigorous oversight of the intelligence community’s operations; but that is a job for Congress, which could easily build up the capacity to do the job effectively. The federal judiciary must maintain its independence. 

The court’s very different yet equally important task is to sit in judgment if someone such as Carter Page brings a lawsuit against the FBI. The judiciary’s legitimacy is damaged when judges participate, however unwittingly, in the violation of an American’s civil rights.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.