Like most of what ails us today, the seeds of the current crisis in republican governance the severance of Washingtons omnipotent law enforcement and intelligence apparatus from democratic accountability were sown in the 1960s and 70s. That was when we began to erase the salient distinction between law and politics. Under the guise of national security, we insulated governmental actions and policies from the reckoning of our citizens, whose safety and self-determination hang in the balance.
Fast forward to 2020. The FBI, in its bungling partisanship, very likely swung the 2016 presidential election away from its preferred candidate, Hillary Clinton. The sprawling community of intelligence agencies (led by the FBI and CIA) covertly used dubious foreign sources to justify monitoring an American political campaign and, later, a U.S. presidential administration. To do so, it invoked daunting foreign-counterintelligence surveillance powers, based on a fever dream that its bte noire, Donald Trump, was an agent of the Kremlin. And the Foreign Intelligence Surveillance Court recently chastised the FBI for feeding it false and unverified information the secret court apparently calculating that this extraordinary public expression of wrath will divert attention from its own shoddy performance in approving highly intrusive spy warrants based on sensational, blatantly uncorroborated rumor and innuendo.
As usual, Washington is reacting with high-decibel inertia. In an era of hyperpartisanship, Democrats defend the politicization of the law enforcement and intelligence that resulted in the Trump-Russia investigation. Republicans, meanwhile, wail about being victimized even as the victim-in-chief ham-handedly dabbles in his own mini-version of the abuse: the Ukraine kerfuffle, in which the president sought, however futilely, to leverage the investigative and foreign affairs powers of the executive branch for domestic political advantage.
Few are willing to confront the crisis. Even acknowledging it seems politically impossible. Not only are Democrats invested in defending the Russia investigation and its excesses, but their post-Watergate surveillance reforms forged the modern law enforcement and intelligence apparatus, which tends to be politically like-minded, at least in the supervisory ranks. For their part, Republicans pay lip service to limited government and political accountability while continuing to see national security and law-and-order hawkishness as key to political success. Any questioning of the status quo, as opposed to criticism of the individual abuses that the status quo reliably produces, is framed as a green light to foreign sabotage and domestic lawlessness.
Yet there are indications weve reached an inflection point: The public is growing weary and not a little bit angry. The politicization of law enforcement and intelligence-gathering threatens everyone, regardless of political persuasion. And officials seem always to escape accountability.
Consider the center-right, the part of the political spectrum where the FBI and aggressive spy powers have traditionally found their staunchest defenders, myself very much among them. We see several Trump operatives (Carter Page, Michael Flynn, George Papadopoulos, Roger Stone, and Paul Manafort) subjected to groundless surveillance or prosecuted with unseemly zeal for process crimes (usually, misleading investigators), or for offenses unrelated to the fictional Trump-Kremlin conspiracy. In stark contrast, government officials who misled investigators, judges, and lawmakers evade prosecution. The latest example: the Justice Departments mid-February announcement that the FBIs former deputy director, Andrew McCabe, will not be indicted despite serially misleading agents who were probing a media leak that he orchestrated.
Here is the problem: The immense powers wielded by our law enforcement and intelligence apparatus are essential to protecting the United States. The agencies that wield them, as currently constructed, are not.
The intelligence communitys performance is often subpar. While officials have played an admirable part in preventing a reprise of the 9/11 atrocities, they have also promoted misconceptions that they and their intrusive information-collection techniques are fit tools for the tasks at hand. For example, the notion that international terrorism is primarily a law enforcement matter led for years to a focus on post-attack prosecutions rather than the prevention of attacks from happening. Indeed, the specter of jihadist strikes ebbed only after domestic law enforcement was subordinated to military operations against overseas terrorist sanctuaries. And lets not forget the bulk collection of communications and metadata involving tens of millions of innocent Americans, supposedly necessary for intelligence agencies to target a relative handful of bad actors which amounted to the risible suggestion that heaping ever more hay in the stack somehow makes the needles easier to find.
Yes, we need aggressive intelligence collection, mission-focused rather than warehoused without much discrimination, to protect the nation from very real foreign threats. But this is a political responsibility, and government officials who carry it out must be accountable. When officials are permitted to shroud their work in complete secrecy, making themselves unaccountable, an outraged public will eventually react to abuses of power by demanding that the powers themselves be pared back or repealed. Our nation would be imperiled from without by foreign aggressors, even as we remained threatened from within by a politicized bureaucracy.
Some history is in order. In its 1967 ruling in Katz v. United States, the Supreme Court completed its transformation of the Fourth Amendment. Originally, it had been rooted in principles of trespass, a venerable criminal-law doctrine whose application is straightforward: The government must respect property rights. The new rule of the road was expectation of privacy. That is a fluid standard, evolving as do technology (which enables government monitoring without physical trespass) and the publics expanding conception of zones of personal activity and intercourse that should be shielded from prying, investigative eyes.
Brokering the eternal tension between security and privacy is a political task. It should be governed by legislated rules that police can easily carry out. Instead, weve put our police in the position of intuiting what privacy invasions the courts might indulge. That is asking them to do policy, not policing.
National security is also a political policy matter, categorically different from law enforcement. In requiring judicial warrants for wiretaps in ordinary criminal investigations in Katz, the court recognized that distinction, stressing that its ruling did not encompass government actions to protect national security. In 1968, Congress recognized the same distinction when it enacted the federal wiretapping statute. Lawmakers took pains to note that they were not encroaching on the presidents constitutional authority to protect national security and guard against espionage by obtaining foreign intelligence, including by electronic surveillance.
What about the crossroads where national security and law enforcement intersect? In the 1972 Keith case, the Supreme Court was forced to confront it, in that instance regarding insurrection and its related crimes by domestic terrorists. The intelligence agencies sought to treat the matter as a security threat, suitable for such national defense tactics as warrantless surveillance, not a policing challenge calling for the due process and substantive safeguards attendant to court prosecutions in peacetime. Reasoning that politically motivated violence was bound up with constitutionally protected political dissent, the court ruled that the rabble-rousers rights to privacy and expression had to be respected, even if a judicial warrant requirement was certain to make monitoring them more difficult (and preventing their attacks more challenging). Again, however, the justices caveated that the scope of our decision involves only the domestic aspects of national security (emphasis added). The court was not saying that foreign powers and their agents were entitled to the due process protection.
Such caution was well-founded. In 1948, in the Chicago & Southern Air Lines decision written by Justice Robert Jackson, an iconic figure in politics, national security, and jurisprudence, the Supreme Court explained why judges were not institutionally competent to regulate foreign intelligence matters or be taken into executive confidences regarding them. The very nature of executive decisions as to foreign policy is political, not judicial. In our system, Jackson observed, such decisions are wholly confided to the executive and legislative branches. Because the most significant decisions a free society makes are those about its security, they must be left to the political actors directly responsible to the people whose welfare they advance or imperil, not to the unaccountable judiciary.
But Washington threw caution to the wind. The FBI and judges were already making policy decisions about where constitutional protections should yield to law enforcement demands. In 1978, in the Foreign Intelligence Surveillance Act, Congress extended this delegation to intelligence policy.
Enacted in the wake of Watergate and domestic spying scandals that led to Congresss Pike and Church Committee inquiries, FISA empowered federal judges to oversee the executives foreign intelligence collection. Originally, this power was limited to the FBIs surveillance of clandestine foreign agents in the United States; later, it was dramatically expanded to cover intelligence collection targeting foreigners outside the U.S. Plainly, lawmakers calculated that the creation of a separate court to handle all applications for foreign-intelligence surveillance would grow judicial expertise, addressing the institutional incompetence problem to which Jackson had alluded. FISA is heedless, though, of the more serious constitutional problem: the transfer of responsibility for innately political national security decisions to nonpolitical unelected officials i.e., away from democratic accountability.
It is the culture of law enforcement to expect independence from politics. Such independence is imperative for the legitimacy of the criminal justice system, on which depend the rule of law and thus domestic peace and prosperity. The framers understood that nothing lends itself to tyranny more than police powers unmoored from political accountability. The FBI and the Justice Department (of which the bureau is a component) are part of the executive branch, answerable to the president, who is accountable to the public. Prudently, however, the executive branchs political leadership does not involve itself in day-to-day policing, content to set programmatic enforcement priorities (e.g., deciding whether to allocate more resources to violent crime or healthcare fraud). There is no political interference in decisions about what cases to bring and which defendants to charge. Those are left to police professionals, who apply Congresss penal statutes in proceedings overseen by courts.
National security, on the other hand, is an innately political responsibility. Indeed, the foreign counterintelligence mission is conducted solely to support the presidents national defense duties, not to develop prosecutable court cases. If the FBI and the courts are doing national security, they are necessarily practicing politics. Arms of government that make political determinations cannot properly be independent of political oversight and accountability.
Ive always believed the FBI could handle these related but different responsibilities. History proved me wrong. The bureau arrogantly insists on independence from political oversight not just in criminal cases but even when it is carrying out national security functions. It wants a free hand to act and even make policy judgments in the political realm, but it demands insulation from political accountability. The courts, analogously, have shed their healthy reluctance to become embroiled in national security policy disputes, as well as their formerly laudable line-drawing between political questions and controversies fit for judicial resolution.
FISA was a well-meaning effort to give a modicum of due process to Americans suspected of acting as foreign agents. In point of fact, it does not provide meaningful due process because it cannot replicate the adversarial search for truth that is the hallmark of judicial proceedings. The FBI and Justice Department appear ex parte before the court; the surveillance subject cannot be effectively represented, and the proceedings are classified, so the expectation is that no one will ever check the executives representations. This is unlike criminal cases, which lead to prosecution, discovery, and significant legal consequences if government agents duped the judge into granting warrants.
More important, the FISA framework intended to provide more oversight of executive surveillance has had the opposite effect. Because the judges are not constitutionally responsible for national security, they are loath to second-guess the officials who are. The system perversely incentivizes those officials to seek warrants on questionable premises. They know that the judge will probably approve the warrants. Once thats done, the agents can brandish these judicial imprimaturs as proof that their actions are unimpeachable and thus to claim there is no legitimate reason for Congress, much less the public, to pierce the veil of secrecy.
And now, with the Trump-Russia investigation, weve witnessed the abuse of power many FISA critics predicted for decades: the pretextual invocation of FISA surveillance powers to conduct a criminal investigation for which the investigators lack a criminal predicate in this instance, the hunt for some crime that might render Donald Trump unelectable or removable. Worse, and quite naturally, the abuse has happened in a political context: the incumbent Democratic administration using the threat posed by a hostile power, Russia, to rationalize foreign counterintelligence surveillance of the opposition partys political campaign, an abuse that continued for two years and impeded the Trump administrations capacity to govern.
This was all predictable. It may even have become inevitable, as law enforcement was increasingly intertwined with political policymaking in the areas of privacy and national security, and as intelligence-gathering and criminal investigations were increasingly intermingled.
A fix is not that hard to grasp. It is doubtful, though, that our political culture could muster the consensus and will it would take for implementation.
The FBI should be relegated to the investigation and prosecution of crime. The bureau excels in executing its law enforcement duties and can be trusted to operate with minimal political supervision because the criminal justice system features transparent judicial oversight. The foreign counterintelligence mission should be transferred to other intelligence community components and subjected to beefed-up congressional regulation and oversight. FISA should be repealed, with the courts returned to their judicial role of providing a forum for those injured by governmental overreach, rather than aiding and abetting in the overreach.
Much more rethinking of the intelligence community needs to be done. The Claremont Institutes Angelo Codevilla, an insightful and provocative intelligence expert, argues the CIA is obsolete, politicized, and counterproductive. He would assign foreign intelligence responsibilities to the departments that carry out national defense and foreign relations missions mainly, the Defense and State Departments tailoring the gathering of intelligence to the practical needs of these missions. This would strip down the so-called deep state, a leviathan that warehouses mountains of intelligence to the detriment of our liberties and with dubious benefits to our security. Codevilla would also repeal FISA.
His ideas are worth exploring. What is already clear, however, is that national security against foreign powers is not a fit responsibility for police agencies and courts. Assigning it to them is a failed experiment: a temptation to intrusive surveillance of innocent citizens and politicized law enforcement. We should end the experiment before the public, in its frustration over the lack of accountability, clips the powers vital to our national defense.
Andrew C. McCarthy, a former chief assistant U.S. attorney in New York, is a senior fellow at National Review Institute, a contributing editor at National Review , and a Fox News contributor.
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The case for repealing FISA and reforming the FBI and CIA - Washington Examiner