FISA And The Constitution

ADMIN: Substack has unilaterally changed the formatting for hyperlinks—a real aggravation to me. They used to be blue, but now are simply underlined.

Back during the height of the Russia Hoax I wrote extensively about FISA, mostly in the context of the Carter Page FISA and its renewals. That was the case simply because the Carter Page case was the one we knew most about, and the affidavit for which we ultimately got a glimpse of. That was mostly back on the original Meanin in HIstory blog. Since those days there are quite a few more readers, many of whom are not conversant with the material that I presented back then. For those readers I should explain that for most of my career I was involved with FISA on a daily basis, usually dealing with FISA work product, but I was also involved in preparing a successful FISA application, back when those applications were more strictly reviewed than appears now to be the case.

I bring this up because at least two commenters, spurred by the recent post News Flash: FBI Continued Violating FISA…, have referenced an article by the late Angelo Codevilla on FISA. Codevilla was, himself, involved in the drafting of the FISA law (1978) but came to revise his views—radically. In that recent post I argued, as in the past, that abolishing FISA would not end “spying” by the intelligence agencies on US citizens. FISA simply purported to formalize what had long been going on and what had always been approved by the courts as an essential element of national security: intelligence gathering.

I won’t rehearse all those arguments, but I’ll present the views of the main authors and authorities that I appealed to. Since most readers are probably familiar with the late Angelo Codevilla, I’ll start with an excerpt from one of his articles that I included in the post Angelo Codevilla: Abolish CIA & FISA. Bear in mind that the same Angelo Codevilla who was calling for the abolition of FISA (in light of the Russia Hoax) had participated in drafting the original FISA law. Note that in 2020 Codevilla was calling the FISA law he helped to draft “unconstitutional” (a conclusion I reached many years ago, while still working). Here are his conclusions as I excerpted them:

* FISA must be repealed legislatively or through Constitutional challenge in court. It unconstitutionally mingles judicial and executive power in secret. It gave Intelligence a blank check. Hardly “an indispensable tool” for national security, it is now indispensable for partisanship. Broad consensus exists for a legislative “fix,” but none is possible. The secret court’s existence, the heart of the law, allows partisan bureaucrats and allied judges to do what they want in secret.

* Functions currently performed by CIA should be sheared down. Data infrastructure and consultant networks should be eliminated. Bipartisan opposition to the Intelligence threat should use fierce resistance and lobbying from Intelligence as evidence of why cuts are in the national interest.

* CIA must be disestablished. Its functions should be returned to the Departments of State, Defense, and Treasury. FBI must be restricted to law enforcement. At home, the Agencies are partisan institutions illegitimately focused on setting national policy. Abroad, Agencies untied to specific operational concerns are inherently dangerous and low-value.

* Intelligence must return to its natural place as servant, not master, of government. Congress should amend the 1947 National Security Act. The President should broaden intelligence perspectives, including briefs from State, Defense, and Treasury, and abolish CIA’s “covert action.” State should be made responsible for political influence and the armed services for military and paramilitary affairs.

For further discussion of Codevilla’s views, check out these posts from the archives, which I gathered by searching “codevilla fisa”.

Next I’ll link a post, The Flaws In FISA Revisited, that combines links to the views of Judge Bork on FISA—including a link to his seminal 1978 WSJ article—with a fascinating interview by David Samuels of Codevilla. First I quote Bork on the role of FISC “judges”. Please read and then reread the final paragraph. The effect of FISA is to “immunize” all the officials involved. FISA is, in effect, a stay out of jail card. Prior to FISA, officials could be sued for violation of civil rights. FISA, in practice, prevents that—and we know the record of the Intel Cabal when it comes to disciplining their own:

Re the role of FISC judges:

"The job is managerial, not judicial, and the two should not be mixed."

"judges cannot become adequately informed about intelligence to make the sophisticated judgments required."

"The element of judicial secrecy is particularly troubling. Because it reverses our entire tradition, it is difficult to think of secret decisions as 'law' ... it would set apart a group of judges who must operate largely in the dark and create rules known only to themselves. ... it debases an important idea to term it the rule of law ..."

“the law would almost certainly increase unauthorized disclosures of sensitive information simply by greatly widening the circle of people with access to it.”

“When an attorney general must decide for himself, without shield of a warrant, whether to authorize surveillance, and must accept the consequences if things go wrong, there is likely to be more care taken. The statute, however, has the effect of immunizing everyone, and sooner or later that fact will be taken advantage of.”

Next, a short excerpt from the Samuels interview of Codevilla. Follow the link, above, for much more, but in this excerpt Codevilla explains—in similar terms to the views of Bork—that, while FISA purported to hold the FBI’s feet to the fire, in reality the FBI was totally in favor of FISA because it would, in effect, provide them with that “stay out of jail card” they wanted:

Right. Now you use that term “the Church Committee” in the context that it was something that was antagonistic to the intelligence business. It was not. The Church Committee was a joint operation between, let’s call it “the left” inside the intelligence community, specifically the CIA, and their friends on the Hill. The result of it was that the left component of that bureaucracy has control of the CIA now.

The drafting of FISA was a cooperative enterprise between the Democratic majority, at that point, of Congress, the staffers being all Church Committee staffers, every one of them. And the ACLU. What I’m calling the establishment left. They were the drafters.

But the impetus of the drafting came from the FBI, primarily, and secondarily from the CIA, the NSA. The reason for their pressure was that the left had sued individual members of the FBI for having wiretapped them during the Vietnam War, in their communications with North Vietnam, communist Czechoslovakia, the KGB, and so on. Now they didn’t like that, and they wanted to make sure that nothing like that ever happened again.

So the point of FISA from the standpoint of the left was to keep that from happening again. The point of FISA from the standpoint of the FBI etcetera was never to be in a position to be sued again.

Right. A judge signed it. So now it’s legal.

Right. What the FBI etcetera demanded was preauthorization. We will not do any wiretapping unless it is preauthorized. Unless we are ipso facto clean.

Now the objections to FISA were primarily of a constitutional kind, mainly that wiretapping for national security was an inherent part of presidential power. The president is commander-in-chief of the armed forces. And that was a true objection.

I however made a different objection, although I agreed with the constitutional objection. I said that pre-authorization, pre-clearance of wiretapping, would be an unendurable temptation for people in the agencies to do whatever the hell they wanted. They would be exempt from the prudence that the fear of being sued would impose.

My objection caught the eye of the American Bar Association at the time, which organized a debate on that subject at the University of Chicago Law School, with me on one side, and a local law professor by the name of Anthony Scalia on the other.

Scalia took the position that the danger, which I described, which he found real, was minor compared to the need to get the agencies doing their job vigorously. We see how the future turned out.

Yes, this is another example of how Scalia was great when he was write but also had some very destructive and reckless views. Another example would be his enabling of the huge expansion of prosecutions under the 18 USC 1001 False Statements act.

For more posts like this one, I searched “bork fisa”.

This next link will lead you to more such posts, including the six part copy and paste job I did of a very fine academic law journal article: Unconstitutional FISA.

The point is that FISA “reform” or “abolition” is 1) complicated and potentially dangerous, and 2) definitely one of those “be careful what you wish for” things. Let me be clear. I favor abolition of FISA simply because it’s unconstitutional. Like Codevilla—as I understand his position—I favor not some new legal framework for obtaining warrants (itself a problematic “solution”), but rather a reform of intelligence gathering responsibilities with a far reaching restructuring—amounting in important respects to an abolition—of the Intel Cabal.