OPINION:
While Congress is showboating the process of impeaching Donald Trump, the issues involved are very basic and traditional tensions between the president and Congress. Essentially, the president is being impeached for being the president.
Likewise, and just as basic, the recent Department of Justice Inspector General Report requires some basic corrective action by the FISA Court.
Here are both matters in summary:
— Security assistance for the corrupt Ukraine
Security assistance of all kinds — whether foreign military sales, military training and/or grant aid — are primary instruments of U.S. foreign policy. There is no dispute about this.
As our chief foreign policy officer, the president can condition security assistance as an integral part of U.S. foreign policy.
Especially if such conditions are focused on actual or perceived internal corruption of the recipient nation — this is hardly a “quid pro quo.”
— Internal corruption in the recipient nation, e.g., Burisma and Hunter Biden, is a collateral matter — but could also be a violation of U.S. law.
These same issues were well known during the Obama administration. In fact, according to recent reports: “George Kent, a career official at the State Department, told House investigators conducting the impeachment inquiry against President Trump that he raised concerns about Hunter Biden’s lucrative service on the board of a Ukrainian natural gas company — but was told that it wasn’t appropriate to discuss the matter because of the health struggles of Biden’s eldest son, Beau …
“Kent further acknowledged that it is appropriate for the Trump administration to ‘look at the level of corruption’ in foreign countries when determining whether to provide, or withhold financial assistance. Speaking to [President] Zelensky, Mr. Trump noted Ukraine’s history of corruption and urged his counterpart to probe any potential election interference efforts originating from the country.
“‘Part of our foreign assistance was specifically focused to try to limit and reduce corruption’ Mr. Kent said. ‘And we also tried, to the best of our knowledge and abilities, to do due diligence to make sure that U.S. taxpayer dollars are being spent for the purposes that they were appropriated and that they are as effective as they can be.’”
— Abuse of FISA by the FBI
Story after story comes out about the extent to which partisan politics played a key role in the Obama Department of Justice (DOJ) and the FBI during the 2016 presidential campaign. The recent DOJ/IG report, and Mr. Horowitz’s Senate testimony raise fundamental questions about the role and oversight of the FISA Court. For example:
• Has the Foreign Intelligence Surveillance Act (FISA) Court done its own internal review of all the petitions for surveillance done during this period?
• Do the petitions accurately identify and attribute the sources of the facts alleged?
• Are politically connected and associated sources accurately and fairly identified?
• Are there patterns in the timing of the petitions that in hindsight suggest political motivations?
• Are there factual assertions in the petitions that suggest an inside source or a mole? Are these assertions attributed?
• What questions, if any, did the court have for the DOJ or FBI relative to these petitions?
• What additional factual information, if any, did the court request?
• Did the court reject any petitions related to these matters, and if so, why? Did it reject earlier versions and later approve them? What revisions were made and why?
• Were any of the sources cited in the various petitions attributed to, or related to, those FBI personnel who have been identified and removed from their jobs as the result of the various internal FBI or DOJ investigations?
• Do any of the petitions suggest that the “take” from an earlier surveillance was or could have been shared with officials or individuals who should not have had access to it?
The U.S. Foreign Intelligence Surveillance Court Rules of Procedure provides that: “[E]ach Judge may exercise the authority vested by the Act and such other authority as is consistent with Article III of the Constitution and other statutes and laws of the United States, to the extent not inconsistent with the Act.”
This gives the FISA Court judges supervisory and plenary authority over their implementation of the FISA law, and they should, on their own motion, do a comprehensive review of the role of the FISA Court during these pivotal periods of the 2016 presidential election.
This kind of review will be of benefit to all, assuming that it can be released in a carefully drafted and redacted report, perhaps even as an opinion by the FISA Appeals Court, which has opined from time to time on other controversial matters, such as the overlapping jurisdictions between the FISA and the criminal law process.
Congress created the FISA in the wake of the Watergate scandal and the Church Committee in the 1970s, and has vested interest in the continued credibility of the court.
In fact, if the court chooses not to do an internal review as suggested here, Congress could easily have something to say about it in the form of new procedural and substantive amendments to the FISA law. After all, Congress maintains that FISA is the exclusive authority to perform intrusive surveillances covered by the act. Accordingly, it seems time for some basic reassurances that the FISA process has not become politicized, as the DOJ/IG report has suggested.
• Daniel Gallington served in senior national security positions in the Office of the Secretary of Defense, the Department of Justice and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.
Please read our comment policy before commenting.