Congress fumbles on FISA

OPINION:

This past May, this column addressed the need to reauthorize the Foreign Intelligence Surveillance Act, which expires Dec. 31. FISA is too critical to our counterespionage and counterterrorism efforts to let it lapse, but both the House and Senate intelligence committees, in their efforts to reauthorize it, seem unwilling to address its most critical problem.

Those problems center on FISA Section 702. More about that in a minute.

On Nov. 16, Rep. Darin LaHood published the report of the House Permanent Select Committee on Intelligence’s FISA working group on their proposed FISA reforms.

On Nov. 28, Sen. Mark Warner, chairman of the Senate Permanent Select Committee on Intelligence, introduced a similar bill, co-sponsored by Sens. Marco Rubio, the Intelligence Committee’s ranking member, Lindsey Graham, chairman of the Judiciary Committee, and other senators.

The only pertinent question is whether the reforms advocated by Mr. LaHood and Mr. Warner address the most critical problems with FISA. Unfortunately, the answer is a resounding no.

The principal problem with FISA is that the powers granted under it are regularly abused for political purposes by the FBI. We know of only some of these abuses because, out of necessity, FISA and the Foreign Intelligence Surveillance Court operate in secret.

The best-known and probably worst abuse of FISA was the spying on Donald Trump’s 2016 presidential campaign, which included FBI agents swearing to false information in FISA surveillance warrant applications. This occurred even though, as special counsel John Durham’s report said, the FBI had received “highly significant intelligence” from a trusted foreign source that tying the Trump campaign to Russian leader Vladimir Putin was a put-up job by Trump political rival Hillary Clinton’s campaign.

The FBI’s FISA abuses are all too common. As Judge Rudolph Contreras wrote in a 2022 opinion, the FBI abused its FISA powers to investigate Americans almost 300,000 times in a year.

Also, according to Mr. LaHood, he and other members of Congress have been the subject of abuses of FISA, having been the object of FBI database searches under FISA for no legitimate purpose.

All of those abuses were made possible by FISA Section 702. Section 702 is intended to enable electronic surveillance of people outside the U.S. Targeting Americans is prohibited under the law, as is “reverse targeting,” i.e., using surveillance of a foreigner abroad as a pretext to surveil an American. Nevertheless, political abuses have occurred so often that they seem almost the norm.

The two most needed Section 702 reforms are first, to get FISA out of politics, and second, to rein in the FBI’s power to search databases on U.S. citizens without probable cause to believe that they are involved in espionage or terrorism.

The Nov. 16 recommendations for Section 702 reforms can be summarized briefly. They would make it easier for the House Intelligence Committee and its Senate counterpart to trigger inspector general investigations of abuse. They would require the director of national intelligence and the attorney general to issue minimum accountability standards for noncompliance with regulations governing database searches regarding U.S. citizens, corporations and permanent resident aliens.

Mr. LaHood’s proposed reforms would also create criminal penalties for abuse of FISA powers, create more transparency and require more audits of U.S. person database queries. Mr. Warner’s bill would prohibit FISA database searches for evidence of ordinary crimes.

The reforms Mr. LaHood and Mr. Warner propose for Section 702 could improve FBI procedures, but they rely on the FBI’s ability to discipline itself, which seems improbable because the bureau has become so politicized.

These proposed reforms do nothing to solve the critical problem of political abuse.

To obtain a FISA surveillance warrant, an FBI agent has to present a sworn affidavit to the FISA Court that there is probable cause to believe the person to be surveilled is an agent of a foreign government or terrorist organization engaged in intelligence activities or terrorism.

That’s what FBI agents did, for example, to get warrants to surveil Carter Page, an aide to Mr. Trump’s 2016 campaign. But much of the information the FBI swore to in order to get those warrant applications was false.

There may be other ways to get FISA out of politics, but one way is to divest the FISA Court of jurisdiction over surveillance warrants for holders of or candidates for federal or statewide office.

That reform would be incomplete without the addition of a requirement — for FISA Court judges and for any federal or magistrate handling a warrant application on an officeholder or candidate — the application should be required to include the “Woods file,” the FBI file of all the evidence in support of the warrant application. That way, a judge could see whether the application is proper or another political abuse like the Russia Hoax.

No one should want to return to the pre-9/11 days when there was a “wall” between the criminal and intelligence branches of the FBI. Nor should anyone want to require a FISA warrant for every database search the FBI conducts.

Getting FISA out of politics will not be easy, but it must be done. Neither election fairness nor the Fourth Amendment, which protects us against unreasonable search and seizure, can be sacrificed at the altar of Section 702.

• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and contributing editor for The American Spectator.