FISA: The Absolute Corruption Of Power

The release of Department of Justice Inspector General Michael Horowitz' report on the FISA (Foreign Intelligence Surveillance Act) applications related to the FBI's Operation Crossfire Hurricane investigation into possible Russian interference and/or coordination with Donald Trump's 2016 Presidential Campaign has succeeded in producing more questions than answers. To say that Crossfire Hurricane became a fiasco would be the acme of understatement.

The report established that there were multiple errors in the FISA applications made seeking surveillance warrants of Trump Campaign associate Carter Page.

We identified at least 17 significant errors or omissions in the Carter Page FISA applications, and many additional errors in the Woods Procedures. These errors and omissions resulted from case agents providing wrong or incomplete information to OI and failing to flag important issues for discussion.

At the same time, the report failed to establish any clear willful misconduct, although Horowitz quite pointedly declined to rule it out (emphasis added).

While we did not find documentary or testimonial evidence of intentional misconduct on the part of the case agents who assisted OI in preparing the applications, or the agents and supervisors who performed the Woods Procedures, we also did not receive satisfactory explanations for the errors or problems we identified. 

Attorney General William Barr articulated additional problems with Operation Crossfire Hurricane uncovered by the OIG. Most disturbingly, the investigation was never terminated despite consistent revelations of exculpatory information:

It is also clear that, from its inception, the evidence produced by the investigation was consistently exculpatory.  Nevertheless, the investigation and surveillance was pushed forward for the duration of the campaign and deep into President Trump’s administration.

To fully appreciate the significance of the problems uncovered by the Horowitz Report, a brief background on the Foreign Intelligence Surveillance Court is in order.

The Foreign Intelligence Surveillance Court

The Foreign Intelligence Surveillance Court, also abbreviated alternately as "FISA Court" and "FISC", is the creation of the Foreign Intelligence Surveillance Act ("FISA"), enacted in May of 1978 as one of the many reforms arising from the Church Committee hearings set up in the aftermath of the Watergate scandal's revelations of President Nixon's use and misuse of the nation's intelligence apparatus to harass perceived political opponents. The Court is charged with providing oversight of covert surveillance operations, while at the same time preserving the secrecy such operations necessarily require.

However, the need for secrecy creates a judicial conundrum for the Court, which arguably has direct bearing on the Crossfire Hurricane FISA applications fiasco: Most proceedings are necessarily ex parte, where the government is represented but not the party being surveilled. The party under surveillance generally does not know they are being watched, for obvious reasons, and so would be utterly unable to provide any sort of rebuttal to government presentations of evidence even if the procedures were not intentionally one-sided.

This makes the Court unique among the nation's courts, for in regular criminal court proceedings the accused is guaranteed by the Sixth Amendment to an opportunity to defend himself or herself. Even when search warrants, specifically regulated by the strictures of the Fourth Amendment, are issued by a regular trial court, during a trial the sufficiency and integrity of such warrants is able to be challenged by the defense, with potentially inculpatory evidence excluded from consideration if the warrants are found lacking. No such safeguard exists for the FISA Court.

Presumably, as FISA surveillance warrants are tied to counter-intelligence rather than criminal investigations, the requirements of the Sixth Amendment are largely mooted. As former US Attorney Andrew McCarthy observed in the run-up to Robert Mueller's appointment as Special Counsel, counter-intelligence investigations generally do not end in indictments and criminal trials--indeed, much of the evidence  such investigations would uncover by its very nature could never be used in a Constitutionally prescribed criminal trial.

Crossfire Hurricane Crossed The Line

Unfortunately for the logic of the FISA Court, the FBI crossed the boundary between criminal and counter-intelligence investigations with abandon during Crossfire Hurricane. As Andrew McCarthy would point out in the aftermath of the Mueller Investigation, this is not a boundary that is to be crossed lightly if at all.

There is an implicit understanding in our law: The awesome powers vested in our security agencies must not be used pretextually to carry out law-enforcement functions. This was the major controversy we dealt with in the 1990s. The infamous “Wall” imposed by internal Justice Department guidelines, which had the effect of impeding cooperation between intelligence and law-enforcement investigators, was unwise policy driven by good intentions. The idea was to ensure that agents who lacked an adequate factual predicate to use criminal-law investigative techniques would not do an end-around on the Constitution by conjuring a national-security angle that would justify resort to foreign counterintelligence authorities — such as warrants issued under the 1978 Foreign Intelligence Surveillance Act (FISA).

Yet such an end-around is exactly what Crossfire Hurricane was. Throughout the trajectory of the Mueller investigation that was the successor to Crossfire Hurricane, the constant question was "what is the crime?" As late as August of 2018, I pointed out that, despite the guilty pleas and indictments secured by Robert Mueller, at no point was there any evidence suggesting any criminal engagement between the Trump Presidential Campaign and Russian government actors. Ultimately, Mueller would conclude there was no such criminal engagement. With that conclusion, the Russian Collusion Probe became the Russian Collusion Hoax.

No Presumption Of Malice Because Stupidity Will Suffice

As Senator Ted Cruz noted during an interview with Fox News commentator Sean Hannity, the best reading of the Horowitz Report for the FBI is that they were simply incompetent.

The middle case is they were malicious. The worst case is they were incompetent and malicious. Again, we must note that while Horowitz did not uncover any documentary evidence of malice, he was not at all willing to rule it out. Rather, Horowitz merely elects to take the "benign" view of the FBI's errors and omissions.

In our view, this was a failure of not only the operational team, but also of the managers and supervisors, including senior officials, in the chain of command. For these reasons, we recommend that the FBI review the performance of the employees who had responsibility for the preparation, Woods review, or approval of the FISA applications, as well as the managers and supervisors in the chain of command of the Carter Page investigation, including senior officials, and take any action deemed appropriate.

Yet even incompetence and ineptitude are cold comforts when dealing with government surveillance of US citizens. The very existence of the FISA Court is because of a national revulsion at Nixon's willingness to deploy the surveillance power of the state against private citizens. That the FBI in putting Trump Campaign associates under surveillance was not acting maliciously seems almost laughably irrelevant. Whether FBI agents genuinely did not know proper procedures and protocols or did not bother to check to ensure they were adhering to proper procedures and protocols simply does not matter: what matters is that the FBI agents involved in Crossfire Hurricane failed to adhere to proper procedures and protocols.

Power Corrupts 

As Lord Acton famously observed, "Power tends to corrupt and absolute power corrupts absolutely." Crossfire Hurricane, whether by accident or by design, became the absolute corruption of the power of the FISA Court. With none of the inherent checks and balances the fundamental rights of accused persons guarantee in regular courts, absolutely no one was looking closely at the FBI's documentation and preparations when seeking the FISA surveillance warrants. Do not look for due diligence in the FISA applications, for there was none. If we eschew the presumption of malice for the moment, we are left with an FBI that simply stopped caring about performing the required due diligence on everything related to the FISA surveillance applications. Up and down the FBI chain of command, the significance of the FISA application itself, and the seriousness of what it represented, was simply not appreciated.

In one regard, the lack of malice is the most disturbing corruption of all, because it implies the FBI ran the FISA applications--and Crossfire Hurricane--on autopilot. There was no critical review, no validation or "sanity check" of documents. The applications were assembled, poorly reviewed, and submitted with the expectation they would be scarcely read by the FISA Court--that is where the benign "lack of malice" perspective leads. If the FBI could not be bothered to be dutiful and conscientious in Crossfire Hurricane, it is only reasonable to believe there have been or will be other investigations similarly idly managed. Crossfire Hurricane becomes the FBI failure we know about--how many others are there?

If there are not already other Crossfire Hurricane fiascos out there, with the status quo there inevitably will be others. The FISA Court by its nature invites such abuse. With all checks and balances of normal court procedure held in abeyance,  there are few incentives to apply the level of diligence the process is supposed to require. When the FISA Court rejects a paltry 0.03% of applications over its lifetime, the presumption of the court acting as the guardian of individual civil liberties is simply an absurdity. The FISA Court has devolved into a rubber stamp for government investigators, and its one-sided nature is the reason why that devolution was inevitable.

The FISA Court is the leading edge of the surveillance state, AKA the police state.

Only Solution: Dissolve The FISA Court

A court which operates outside of almost all sanctions, a court which is secretive and thus never truly answerable to anyone, is simply not able to be the guardian of civil liberty and due process we expect a court to be. A court which only hears from the prosecution and never from the defense can never be compatible with fundamental notions of due process and the rule of law. With no one to challenge the FBI on the accuracy of their submissions, there is no way for the FISA Court to ever properly challenge them

For all the national security rationalizations offered in justification for the existence of the FISA Court, Operation Crossfire Hurricane demonstrates why the court has no place in American jurisprudence. The fundamental rights guaranteed every man by the Constitution are by definition inalienable. Government at no time has the power to deny any man his fundamental rights. Before one can even interpose the question of whether the government can properly handle such authority, one is hit squarely in the face with the Constitutional reality that, even if government were able to discharge such power honorably, the Constitution simply does not grant that power.

The Foreign Intelligence Surveillance Court must be dissolved.

In its place, the United States should have....nothing--no court, no rubber stamp, no gimmick to cover over intrusions into individual civil liberties with the majesty of a magistrate.

National security will make its demands. That is inevitable. 

Law enforcement will make its demands. That too is inevitable. 

Yet it should be noted that we preclude the use of the military in law enforcement through the Posse Comitatus Act; likewise, the intelligence apparatus of the nation should be precluded from being pressed into a law enforcement role. Counter-intelligence investigations should never be mixed with or morphed into criminal investigations. Crossfire Hurricane has proven that such is very bad procedure.

The Crossfire Hurricane FISA applications were corrupt because the FISA Court itself is corrupt. It is corrupt by design. The FBI engaged in an end-around on Carter Page's and Donald Trump's civil liberties because the FISA Court is itself that end-around. It proceeds from the blithe presumption that, for the sake of the nation, we must be able to set aside Constitutional niceties "when necessary". It ignores the simple truth that there is no Constitutional basis for setting aside fundamental civil liberties. 

There is no higher purpose to the Constitution than the preservation of individual civil liberty. There must be no higher purpose to any government agency or bureaucracy than the preservation of individual civil liberty.

There can be no purpose, Constitutional or otherwise, to the Foreign Intelligence Surveillance Court at all.