OPINION:
The only thing Congress does well is waste taxpayers’ money. Once in a while, something even more serious comes along, and Congress usually blows its chance to fix what’s broken.
That’s exactly what is going on now with the Foreign Intelligence Surveillance Act, which will expire on April 19 unless it is reauthorized. The low-key debate about it in Congress doesn’t even address reforms to the powers that the FBI has so badly abused.
As The Washington Times said in a Dec. 14 editorial, the debate in Congress is faking FISA reform. That editorial recounted many of the FBI’s abuses of power, beginning with the 2016 Crossfire Hurricane investigation of Donald Trump and his presidential campaign, which was invented from false information supplied by the Hillary Clinton campaign.
In that investigation, an FBI lawyer falsified an email to portray a Trump campaign aide, Carter Page, as a Russian spy. There were, as this column has pointed out, false FBI affidavits to the Foreign Intelligence Surveillance Court in applications for surveillance warrants on Mr. Page.
The editorial also pointed out that after Mr. Trump was elected president in 2016, an FBI agent was dispatched to spy on him under the guise of providing him with intelligence briefings, and then-FBI Director James Comey took notes on conversations with Mr. Trump that he leaked to The New York Times.
The FBI’s abuses of power go well beyond FISA. A few weeks ago, the notoriously liberal 9th U.S. Circuit Court of Appeals ruled that the FBI violated the Fourth Amendment rights against unreasonable search and seizure of holders of safe deposit boxes by opening and seizing about $86 million in private property from 1,400 safe deposit boxes without individual criminal warrants for each box.
Special counsel Jack Smith told a federal court in December that he would call a witness against Mr. Trump to testify on data and images found on Mr. Trump’s phones and on the websites Mr. Trump visited. As the Dec. 14 Washington Times editorial said, “Prying into the private musings of a president in this way is astonishing.”
Getting back to FISA, given the FBI’s track record, such prying shouldn’t astonish us, but it should enrage us. FISA, we are told, is needed to protect our country from terrorism and foreign espionage. But its value for those purposes is outweighed by the damage to the Constitution that the FBI’s abuses of power cause.
FISA currently states that no individual, company or legal resident in the United States can be targeted by a FISA warrant. Those provisions give no protection against the FBI’s abuses, as demonstrated by the fact that they haven’t stopped the FBI from gathering enormous amounts of information on Americans from email, “metadata” (data that describes and gives information about other data) and telephone communications.
From what we have seen so far, Congress is determined to reauthorize FISA without reforming it to prevent political abuse. It passed a “clean” reauthorization — without any reforms — in November to buy time until April to decide what reforms should be made. There are competing House and Senate bills that will do nothing more than put lipstick on this particular pig.
Those “reforms” would fix little things, such as limiting the number of people in the FBI who see FISA-produced intelligence. One bill would create criminal penalties for FISA abuse. But none of the proposals will do what is necessary: Get FISA out of politics.
To do that, several reforms are critical. To reiterate from earlier columns, those reforms must accomplish the following changes.
First, the Foreign Intelligence Surveillance Court should be disbanded, and jurisdiction over FISA warrant applications should be turned over to ordinary federal courts. Alternatively, the court could be divested of jurisdiction over the investigation of any holder of or candidate for any federal or statewide office.
Second, either of those reforms would be incomplete without requiring the FBI to do more than submit a sworn affidavit to a court without supporting evidence.
FBI procedures require a “Woods File” in which all the evidence supporting a FISA court surveillance warrant application is supposed to be maintained. To prevent the sort of abuses of power evident in Crossfire Hurricane, FISA should be reformed to require that such a file be part of every application to any court and be examined by the judge before any warrant is authorized.
Moreover, the FBI should be barred from searching any database with regard to a U.S. citizen or business unless there is probable cause to believe that person or company is engaged in a crime on behalf of a foreign entity. That probable cause should have to be submitted to a federal magistrate for authorization to search.
There may be other ways to accomplish the critical reforms needed for FISA, but these would ensure that FISA can’t be abused for political purposes.
House Speaker Mike Johnson has told the chamber’s Judiciary and Intelligence committees to work out their differences before the April deadline. He would do far better to tell them to scrap their proposals and work on real FISA reforms to get it out of politics.
• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and contributing editor for The American Spectator.
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