National security has become an afterthought in the latest national-security debate. The debate centers, instead, on what is called “FISA reform,” the imperative of which appears to be making foreign intelligence surveillance powers harder to use.
I’ve long been worried that this was the way the wind was blowing. That would be apparent to anyone who read Ball of Collusion, my book about the absurd political narrative that the Trump campaign conspired with Russia to steal the 2016 election from Democrats through cyber-espionage operations (mainly hacking), after which the new president was to become the Kremlin’s agent in the White House.
This narrative fueled a wide-ranging government investigation, launched by the Obama administration. Under the rubric of highly classified foreign counterintelligence operations, the investigation prominently featured FBI spying on the Trump campaign. (As I noted yesterday, the New York Times is back to describing the FBI’s covert monitoring as “spying,” so I’m assuming the era of garment rending at utterance of the dread s-word is over.)
In the course of that investigation, as catalogued by the Justice Department’s inspector general and highlighted by the Foreign Intelligence Surveillance Court, the FBI serially abused its authority: providing misleading information to the FISC, falsifying a key document, running confidential informants at Trump campaign surrogates in the absence of a sound investigative predicate, making public statements that suggested the president was a criminal suspect (while privately telling him he was not), making private statements (dozens of them) that have convinced reasonable people that bureau decisions were influenced by political bias, and so on.
I am as interested as the next talking-head in history and politics. The improbable 2016 election and its aftermath will be a source of fascination for us for years to come. This, however, has not been my principal motivation for following the story closely through the last few years. I come at this primarily as a former government lawyer who worked on national-security investigations. I learned that in national security, more than in regular criminal prosecutions, more than in other aspects of governance, federal officials have to be able to say, “You can trust us.”
It is impossible to protect the country — i.e., to gather intelligence about hostile foreign powers that mean us harm — without being able to keep secrets. The public vests national-security officials with highly intrusive intelligence-gathering powers, but it is with the proviso that these powers will be used only for the purpose of safeguarding the United States — not for lesser purposes, and most certainly not for political purposes. There is great potential for abuse. But these powers are entrusted in government because we understand them to be essential for our security, not because we want to empower government officials.
There is thus an implicit bargain: If government officials abuse the national-security powers entrusted to them, they must be held accountable. Sounds right . . . but it is much easier said than done.
Abuses of government power are always improper, but that does not make them illegal. Often, they are not. To conduct law-enforcement and security operations effectively, officials have to be given broad discretion. Because they operate in the gray area of judgment calls, it is extraordinarily difficult to apply the criminal law to these officials. Criminal law involves clear penal statutes, and prosecutors bear the burden of proving beyond a reasonable doubt that an offense was committed with criminal intent. It is not an easy fit when law-enforcement and national-security agents must be given the latitude to make mistakes (lest they be paralyzed by indecision, leaving us with no security). Because the law gives them broad discretion to consider an array of factors, their intentions and motivations are frequently ambiguous.
When power has been abused, it is usually not hard to conclude that an official is unfit for his duties, or warrants suspension or transfer. It is much harder to conclude that he can be prosecuted successfully, or that prosecution would be prudent. There is not just the challenge of proving criminal intent; we must also worry about the debilitating effect prosecuting some officials could have on other officials — those currently performing vital security jobs in which tough judgment calls must be made.
Thus the conundrum. When the public’s trust has been abused, the public’s idea of accountability is prosecution. But prosecution may not be practical. If there is no prosecution, though, the implicit bargain — power conferred by the public in exchange for accountability if power is abused — is broken. If the government says its officials cannot be held accountable, the public (through its congressional representatives) is apt to reply, “In that case, no government official should be trusted to wield national-security powers.” Demands are made that these powers be pared back or repealed entirely. It is an understandable response, but it does not make the threats to the United States any less real, or the need for these powers to be responsibly exercised any less imperative.
We’re there. That is, we have arrived at the juncture I always feared: National-security powers are at risk of being repealed because people are angry that officials who abused their power are not being held accountable.
As I explained in a column on Friday, three national-security powers will lapse next week unless action is taken to renew them. They should not be controversial. They are commonsense measures that enable intelligence investigators to obtain business records; to continue court-ordered surveillance without interruption if the target switches communications devices; and to surveil a foreigner who appears to be engaged in terrorist activities but whom investigators have not yet tied to a known terrorist organization — i.e., a “lone wolf.” These authorities have nothing to do with the FBI’s misconduct in deceiving the FISC so the bureau could monitor Carter Page. It would be recklessly irresponsible to allow these authorities to sunset out of fury over the bureau’s unrelated wrongdoing.
No, counters Senator Mike Lee (R., Utah). To renew these powers, rather than using them as leverage for a more wholesale revision of FISA law, would be “one of the dumbest things we could do” — an act of “policy and political malpractice.” With due respect, physician, heal thyself. When lawmakers are responsible for the national security of the United States, it is malpractice to risk losing laws that actually promote security in pursuit of a vague “reform” vision that will necessarily make it harder to monitor real anti-American spies and jihadists.
If the reformers wanted to scrap FISA in favor of a politically accountable system of aggressive congressional oversight, I’d be right there with them — though I would not delay the renewal of sensible national-security tools in order to force the issue; I would give it whatever time it took to get the new system right.
That, however, is not what the reformers are pushing for. With apparently little appetite to examine the FISA court’s own performance, they propose to give the judges even more oversight power. They want to beef up the court’s resources so that surveillance warrant applications can be challenged more effectively. In essence, they’d turn national-security surveillance — a core political responsibility of the executive branch, on which Congress should be the check — into an adversarial judicial proceeding. Suspects would have representatives who, like criminal-defense lawyers, would demand discovery of U.S. intelligence files for the purpose of discrediting the government’s factual assertions and sources of information.
You want to say that the FBI has that coming after what happened to Carter Page? Well, the vast majority of suspected foreign agents are not Carter Page types. We are talking about the monitoring of real foreign threats, not politicized investigations. If we make it harder to investigate real foreign agents, we will not be giving wayward FBI officials their comeuppance; we will be endangering the American people.
Understand this about the ongoing FISA-reform dispute. National security is not the top priority of the reformers.
Libertarians such as Senators Lee and Rand Paul prioritize individual liberty and appear to doubt that Americans should be subjected to national-security surveillance at all — even though we have seen our share of jihadists and clandestine foreign agents who are American citizens. They seem to believe the government has not established that foreign intelligence surveillance authorities meaningfully improve our security — that all we can say for sure is that these authorities hold great potential for abuse, and have, in fact, occasioned abuse. That is a debate worth having. But the senators should not be forcing us to have it under the gun, at the risk of a windfall for alien enemies.
Lee and Paul find allies among Democrats. Yet, the latter have no problem empowering the government. Philosophically, Democrats want national security treated like a criminal-justice issue. Courtroom due process would be ratcheted up, not just for Americans but for everyone. The judges, not the executive’s intelligence agencies, would make ultimate decisions on foreign-intelligence collection operations.
Finally, President Trump and his House Republican allies talk a good game on national security, on the need to crush terrorists and be tough on hostile regimes. Nevertheless, they are pushing to enhance the rights of suspected agents of foreign powers, and to make the FBI’s task of thwarting them more difficult. The point seems to be validation of the president’s position that he was the victim of an elaborate hoax, that the Democrats and the deep state perpetrated it to undermine his presidency, and that he must make changes to ensure that it never happens again. It is a personal case for the president’s reelection, rather than a policy case for FISA reform.
How strange to reform national security in a way that can only render the nation less secure.