Robert Bork and the FISA Follies
Like so many other bad deals, these courts are a legacy of Jimmy Carter.
WSJ — March 6, 2017
Robert Bork saw it all coming.
Not, of course, today’s clash of recriminations, between a sitting Republican president who’s accused his Democratic predecessor of having tapped his phones even as the other side accuses this same Republican’s campaign team of having colluded with Moscow to steal the November election. For all his wisdom, the late judge and onetime Supreme Court nominee could not have predicted this.
What Bork did appreciate, and more keenly than almost anyone else at the time, is that the Foreign Intelligence Surveillance Act at the root of this mess—i.e., whether or not there were such warrants on Donald Trump or his associates—was not a reform but an abuse. He outlined his objections in a prescient op-ed for this newspaper on March 9, 1978, shortly before the Senate passed the bill. In particular, he argued, the courts set up by this law would work to obscure the responsibility the “reform” was meant to ensure:
“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.” In other words, if administration officials could not hide behind court approvals, they would think long and hard about their surveillance decisions.
Thirty-nine years later, on the biggest story of the day, no one is even clear about exactly what happened. We don’t, for example, know whether there was a FISA warrant for Mr. Trump or any members of his campaign team. Notwithstanding all the innuendo, we also don’t have any evidence the Trump team collaborated with the Russians to influence the election.
Each side is demanding hearings. But in today’s Washington, neither is likely to get a satisfactory accounting. In the midst of all the shouting, it’s worth taking a step back and reviewing the present crisis in light of Bork’s warnings back when this law was passed.
Like so much else America would have been better off without—the Education Department, federal subsidies for ethanol, the idea that there are limits to growth—FISA and the courts it created are a legacy of Jimmy Carter. The legislation, introduced by Sen. Ted Kennedy in 1977, was a byproduct of the Church Committee hearings into intelligence abuses and the general anti-Nixon fever. The animating idea was to clip a president’s wings by introducing judges into the surveillance equation.
Bork characterized it as “moralistic overreaction.” Not only would these courts infringe on a president’s surveillance authority—which for nearly two centuries had been deemed part of a president’s national-security powers as commander in chief—judges lacked the skills and experience “to make the sophisticated judgments required.” If they responded by deferring to those who do, Bork noted, they would raise other questions about what their oversight really amounted to.
Bork further argued that “the law would almost certainly increase unauthorized disclosures of sensitive information simply by greatly widening the circle of people with access to it.” How timely that seems today. Just ask Mike Flynn, the national security adviser who saw classified parts of his private conversations with the Russian ambassador leaked.
On the left there is great distrust of the FISA courts, which grew after 9/11 and the Bush administration. But the preferred progressive “solutions” are generally things that would make the process even more cumbersome. Some, for example, hope to introduce into the FISA process an advocate to challenge the government as it makes its case.
Once again, the Bork approach is more promising. As he pointed out, the intelligence abuses that led to FISA “were uncovered through existing processes of investigation.” This process contributed to President Nixon’s resignation. And if he hadn’t resigned, he would have been impeached.
Andrew McCarthy, a former U.S. attorney who has written three pieces for National Review on the latest in the Trump wiretap charges, argues, with Bork, that the Constitution’s primary solution for government failure and overreach is political accountability to the American people. Progressives are not nearly as enthusiastic, partly because the modern left prefers the unelected to the elected, and partly because they don’t really trust the people.
It would be nice to think we’ll eventually get clear answers from whatever investigations emerge. In the meantime, we could do worse than return to Bork’s original concerns about a system that establishes “a group of judges who must operate largely in the dark and create rules known only to themselves.”
Surely it says something about where we are today that the ideal reform—to abolish the FISA courts altogether—is unlikely because presidents and lawmakers of both parties are unwilling to challenge an arrangement that fuzzes up accountability even as they complain about it.
Write to McGurn@wsj.com.
Several intelligence insiders have come forward over the last few days to describe a shadow government of Obama holdovers leaking information to derail the Trump presidency, with National Security Advisor, Mike Flynn’s resignation its first success.
According to the Free Beacon, Flynn was targeted because he was preparing to “publicize many of the details about the nuclear deal that had been intentionally hidden by the Obama administration as part of its effort to garner support for the deal.”
There are even allegations that former President Barack Obama is himself actively involved, citing his establishment of a command center in Washington and continuing involvement with activist organizations.
Retired Lt. Col. Tony Schaffer, formerly CIA-trained defense intelligence officer, said to Fox Business, “I put this right at the feet of John Brennan, and Jim Clapper and I would go so far as to say the White House was directly involved before they left.”
The Washington Free Beacon quoted ‘multiple sources in and out of the White House’ on Tuesday to describe a “secret, months-long campaign by former Obama administration confidantes to handicap President Trump’s national security apparatus and preserve the nuclear deal with Iran.”
The New York Post is suggesting that Obama is running the show with not just whisper campaigns, but actively employing agitators across the nation as well.
It has been reported that Obama has employed an army of as many as 30,000 agitators who will fight his Republican successor at every turn of his presidency. And Obama will command them from his bunker less than two miles from the White House.
“Obama is doing it through a network of leftist non-profits led by Organizing for Action. Organizations that are set up to support a politician are normally disbanded after he leaves office, but not this one. It is, instead, gearing up for battle, with a growing war chest and 250 offices nation-wide,” said Breitbart.
Editor’s note: What will happen when the Trump administration uncovers these seditious organizations? Will the 30,000 agitators go rogue?
In follow-up interviews, Colonel Schaffer made it clear that whether or not Obama’s monitoring of Trump was technically legal (via the use of the FISA court and surrogates to distance himself) or flatly illegal, it was a tactic right out of Stalin’s Russia or Hitler’s Germany.
“This could be the first time a former president could be indicted for a felony,” Shaffer said. “Because I think it is very possible that he acted outside of the scope of his duties, responsibilities and authorities to turn the resources of a nation-state on a candidate.”
“This is, as I’ve said before, soviet-dictator level wrongdoing,” he added.
There has been a massive disinformation campaign in the Media against President Trump, which is collapsing.
Trick or Tweet: Link
What a mess! Still, good can come out of this depending on how it all unfolds and how much courage others – besides Trump, who has the heart of a lion! – manage to muster.
The best outcome would be a clear win for Trump. Leakers would be charged with crimes, possibly including Obama himself. We’d not only get justice for President Trump, but probably wind up dissolving the FISA court. This Administration and Congress could take the action that Judge Bork wanted to preserve political accountability. It would be great day for freedom and for America.
The worst outcome would be that the Progressive Left and the Fake News Media somehow prevail. That could come with a whimper or a bang, with endless delays, a failure to take action, or perhaps even charges and an acquittal for Obama.
The issue could just fade away as it did with Clinton — instead of “everyone lies about sex,” this spin might be “everyone lies about Big Brother.” Alternately, we could see a finding by Congress that President Obama was either within his powers to mount state surveillance against candidate Trump, or that he (Obama) is unaccountable (as Judge Bork warned) for FISA court actions.
That would be a loss for Trump and a sad day for our Constitutional Republic, but even that dark cloud could have a silver lining. It would mean that President Trump was free to employ the same Orwellian tactics and methods against his political enemies as Obama used against him.
The swamp is sufficiently dark and dismal that such tools, however distasteful, might prove to be useful against the monsters, foreign and domestic, that lurk. President Lincoln would understand, I think.
Most likely, neither of these extremes will happen. Something in the middle will occur, but I know not what.
The other interesting dynamic is this: While investigations have started, we may never know what organization(s) or people have been leaking. CIA is, of course, legally prohibited from conducting electronic surveillance on U.S. citizens at home.
That’s a bright line in the sand, 20 + years in prison, and a mantra it keeps repeating. CIA strongly denies playing the political role of Big Brother.
Despite these denials, the nexus of investigations is the old Obama CIA (run by John Brennan, a self-admitted Communist and alleged to be a converted Muslim by ex-CIA agents) and overseen by Clapper, who lied to Congress two years ago. Brennan is gone along with the top two levels of the agency, as is Clapper, but the trail starts there.
These people can be subpoenaed, but they will likely take the fifth. Any testimony they give will almost certainly be classified. Also, it is becoming clear that the leaks themselves were likely caused by CIA contractors, private companies. The ones being named in the media are Apple, Google (owned by Alphabet, Inc.), Samsung, and Microsoft.
Interestingly, Amazon, despite a $600 million 2016 contract with CIA is not (so-far) being mentioned, nor is Facebook, which was the epicenter of massive “Fake News” push-back from the mainstream media (MSM) during the election. MSM sees its job as controlling what we think, not reporting news. Some have actually said that on-air.
Tweet of the day: “Quite a pickle the MSM is in. If Trump claims (about being spied on) are false, it exposes THEM as liars. If Trump claims are true, exposes Obama.”
The lady made a good point. The quote below is from the prologue of my novel Privacy Wars.