Fixing FISA

With the Senate passing a temporary extension of the Foreign Intelligence Surveillance Act (FISA), the Legislature has the opportunity to refine the act and better protect American’s civil liberties. If the federal government doesn’t hold past transgressors accountable, does it really matter?

In 2014, I enjoyed the opportunity to listen to a former senior intelligence official discuss the challenges of strategic intelligence. After an engaging large group presentation and a healthy question and answer, a few of us joined the official for lunch and a small group non attribution discussion. I had been searching for a question to ask and was kicking ideas around in my head. 

The year prior, Edward Snowden released classified information on how American intelligence agencies legally collected information on the meta data of phone calls made in or to the United States while pursuing international terrorists.[i]  Some of my family members were concerned about the potential incursion by the US government into their privacy. I explained how the process worked, “look, we’re speaking on our cell phones right now. Right? Guess What? I’m a terrorist! I’m a terrorist! I’m a terrorist!” I paused for effect then continued, “See? Nobody is listening to our conversation and nobody cares what we say to each other. Had you been a terrorist on an intelligence watch list, somebody might be aware I made a phone call to you. Nobody knows what we said. It doesn’t work the way you think it does.”

That same year, the IRS scandal concluded after it was discovered back in 2010 to be targeting select political groups applying for tax-exempt status for scrutinized auditing. The scandal seemed to indicate the sitting administration or senate majority might be using the government apparatus to go after its political opponents.[ii]

With these fairly recent issues in mind, I posed a hypothetical concern to the senior intelligence official. “I have friends and family I consider to be great Americans who are concerned about the information Snowden leaked and that it might impact their privacy. I can explain to them that they have nothing to worry about with that. But what do I say to them if, say for instance, the IRS used similarly derived intelligence to investigate or audit Americans over their political donations?”

Without pause, the official replied, “Duck.”

Fast forward to the end of 2019 when the FBI inspector general revealed the FBI team composed of experienced senior agents committed “17 significant errors or omissions in the Carter Page FISA applications.”[iii]  Written into law during the Carter Administration and updated after 9-11 to prevent future terrorist attacks, the FISA walks a tightrope of balancing civil liberties and privacy against identifying potential threats, not absolute threats, posed by foreign actors. Seventeen times the FBI trod upon an American citizen without regard for that citizen’s rights or privacy. Seventeen times the FBI violated policy if not broke the law.

Duck, indeed.

I regret to admit that the FBI did this as I have had a great respect and affinity for many special agents. I know at least half a dozen retired FBI agents including West Point classmates, football teammates, a running buddy, and a roommate. I can hardly fathom why the supposed experienced senior agents were compelled to violate an American citizen’s privacy in order to investigate the alleged ties between the Trump campaign and Russia.

Former CIA Director Brennan’s comment that the agents were just being overly aggressive is unacceptable.[iv]If one thinks it is okay because the agents were investigating Trump, it is not okay. The FBI, as one former FBI Special Agent wrote, “destroyed Carter Page’s life” exploiting Page’s personal life to get to Trump.[v]  

Imagine for a moment the following situation. A big city police counter-narcotic team busts a substantial drug cartel picking up a few dozen conspirators. Seventeen of the alleged criminals confess to the police of committing a crime.  The defense attorneys show up and ask if the subjects were read their Miranda rights. They were not. This would cause two reviews, first, a judicial review of whether the admissions are valid.  The second review would be of the counter-narcotic procedures that somehow forgot to read the Miranda rights to the accused not once, but seventeen times. Surely, somebody would lose their job or receive some sort of professional discipline over such a pattern of neglect.

To date, the federal government, namely the Department of Justice (DOJ), has failed to take criminal action upon any FBI agent for the FISA violations.  Director Comey and Assistant Director McCabe had already been fired before the FISA violations were uncovered. It is inane to renew the FISA laws and give the federal government this most intrusive power to abuse an American citizens privacy if it is incapable of remedying an abuse. Still not convinced that the possibility of absolute security through FISA outweighs any violation against an American citizen’s rights?

Consider an American climate change activist who meets an enthusiastic kindred spirit at an environmental rally and that the kindred spirit may be a possible eco-terrorist from Japan. Why shouldn’t the DOJ or DHS and any of the subordinate law enforcement organizations be a little aggressive with FISA and exploit the American climate change activist to access the Japan-based eco terrorist? Obviously, there is no penalty to US law enforcement if caught doing something improper.

Consider also that many white supremacist groups are now international organizations and the FBI would like more tools to track their movements.  What is to stop the FBI from using FISA to exploit an American citizen who’s relative is a Neo Nazi from the old country? Most Americans, including this American, dislike any supremacist group White, Islamic or whatever, but that doesn’t mean it is no holds barred on every American citizen.

One has to wonder if continuing FISA is really worth it. Furthermore, the FISA violations of Carter Page call to question whether the FBI or any other federal agency abused FISA to exploit Americans’ rights in order to target ISIS or Al Qaeda. Indeed, the most recent DOJ Inspector General report said the problems found in the Carter Page report were no anomaly.[vi]

As of this writing, the Senate and House agreed to modify FISA, but the FBI remains undisciplined from the violations against Carter Page.  Modifications to the law don’t matter if the federal government won’t enforce existing laws.  President Trump insists he won’t sign the modified FISA into law.  Senators Rand Paul and Mike Lee don’t support the modifications and don’t want to continue FISA especially if it can be used against a President.[vii] They are all justified if not for the best reason.

This isn’t about the government investigating presidential candidates or sitting presidents. This is about a federal government, especially the DOJ, who has become mostly incapable of policing itself and its reckless abuse of its citizen’s rights and privacy. Never mind Secretary Clinton’s illegal classified email server, Director Comey’s illicit release of FBI material, or President Trump’s and former Vice President Biden’s alleged quid pro quos. When a federal investigator can do whatever it takes, to include violating the average American’s privacy and way of life, to assure the government knows what is wants to know, the American citizen is in jeopardy.

The federal government won’t stop itself because it can’t stop itself. FISA is a very powerful and useful tool in preventing nefarious crimes. In the most optimistic light, politicians never want to be wrong about an American dying and are banking on the public’s desire for the perception of absolute security to preclude such events. Yet, there was no threat of loss of life in the Carter Page FISA affair and having one’s civil liberties overrun is the price any American may pay if the FBI’s FISA violations go unremedied.

Some Americans are activists. Some are protesters. Some are silent. Some dislike political correctness. Many enjoy their freedom of speech. Most, at some point or another, don’t agree with their federal government. Americans are an outspoken lot.

Congress must agree to modify FISA to assure more protections from the DOJ and other agencies exploiting Americans’ privacies.  If not, and if Congress doesn’t assure the Executive branch takes action for the FISA violations against Carter Page, here’s a bit of advice to anyone who wants to take a position against the federal government in the future.

Duck.

The author served twenty-nine years with the U.S. Army including several deployments abroad in conflict and a tour at the National Security Agency.

-----ENDNOTES-----

[i] Greenwald, Glenn, “NSA collecting phone records of millions of Verizon customers daily”, 6 June 2013, The Guardian, https://www.theguardian.com/world/2013/jun/06/nsa-phone-records-verizon-court-order .

[ii] Lichtblau, Eric, “Republicans See a Political Motive in I.R.S. Audits”, 6 October 2010, The New York Times, https://www.nytimes.com/2010/10/07/us/politics/07irs.html .

[iii] Office of the Inspector General, “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation”, US Department of Justice, December 2019 (Revised), pg xiii.

[iv] Hayes, Chris, Interview of Former CIA Director John Brennan, December 17, 2019, https://dailycaller.com/2019/12/18/john-brennan-fisa-aggressive-fbi-agents-russian-interference/ .

[v] Gagliano, James, “The real victim of the FBI investigation isn't Trump, Comey, or Lisa Page”, December 20, 2019, Washington Examiner.

[vi] Shackford, Scott, “The FBI Is Routinely Screwing Up FISA Warrants Targeting Americans”, March 31, 2020, Reason, https://reason.com/2020/03/31/the-fbi-is-routinely-screwing-up-fisa-warrants-targeting-americans/ .

[vii] Carney, Jordain, “Paul, Lee urging Trump to kill House FISA deal”, March 11, 2020, The Hill, https://thehill.com/homenews/senate/487094-paul-lee-urging-trump-to-kill-house-fisa-deal .