Washington Wednesday – A debate over FISA

MEGAN BASHAM, HOST: It’s Wednesday the 11th of March, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Megan Basham.

NICK EICHER, HOST: And I’m Nick Eicher. It’s Washington Wednesday.

In 1978 Congress passed the Foreign Intelligence Surveillance Act. We will refer to it often, so we’ll go with the acronym FISA. The legislation created FISA courts that approve surveillance and other investigative actions for “foreign intelligence purposes.” 

But not all of the subjects are foreign nationals. More on that in a moment.

BASHAM: Supporters of the law include former Director of National Intelligence Dan Coats. 

In 2017 testimony before the Senate Intelligence Committee, Coats said FISA allowed the U.S. military to track down and kill the No. 2 ISIS commander and two of his associates. 

Coats gave the law his unequivocal endorsement:

COATS: Section 702 is an extremely valuable intelligence collection tool and one that is subject to a rigorous, effective oversight program.

EICHER: Meanwhile, others say the law is ripe for abuse and point to the controversial beginnings of the Russia probe that spawned the Mueller investigation. A December Inspector General report found the FISA application to surveil Trump campaign aid Carter Page, included 17 errors. That included information that could have led the FISA judge to deny the request.

Now FISA is up for reauthorization, and members of both parties say they want reforms. But as you might expect, they disagree on what those reforms should be. If Congress doesn’t act, several key aspects of the FISA law will expire on Saturday. 

John Tyler is a lawyer and professor of government at Houston Baptist University. He’s written about this issue and joins us now from his office there. 

Professor, good morning to you.

TYLER: Good morning, Nick. It’s great to be with you. 

EICHER: I’ll note here at the outset your view is that FISA is unconstitutional, and before we wrap up, I’d like for you to explain that. But as much as you’ve studied FISA to come to those conclusions, I’d like your expertise to help us understand it better. So let’s go back in time to when the government created FISA. What’s the best rationale for why it was done?

TYLER: Well, the irony is that there were abuses discovered during the Nixon administration with the FBI, CIA, and NSA. And there was a committee called the Church Committee that looked into these abuses and the FISA statute was an attempt to reel in these agencies to prevent unconstitutional conduct. 

The difficulty is, however, whenever Congress tries to set a statutory standard that conflicts with the constitutional standard, people in power will generally find loopholes around the protections. All these constitutional protections, by the way, developed over centuries of governmental abuse and each of these protections, ironically, developed in response to precisely the type of abuse that we’ve seen in the last two to three years under the FISA statutes. 

EICHER: Now, FISA—the first three letters of the acronym are Foreign Intelligence Surveillance. And we heard from the former Director of National Intelligence Dan Coats—he’s a prominent supporter of the FISA law—and he says it’s been helpful in the war on terror, dealing with Islamic state leaders and so forth. We do need foreign intelligence surveillance, do we not? Is that not a generally agreed upon point for this law? 

TYLER: Right, but that justification goes primarily to foreign nationals. With regard to citizens in the United States, they are entitled to full constitutional protection. The Supreme Court—the argument that the government always gives in these types, when their powers are involved—is that national security requires it. 

But the difficulty, as the United States Supreme Court highlighted in a case entitled U.S. vs. U.S. District Court in 1972 is that Fourth Amendment and constitutional protections are more essential in national security cases than in any other type of case, including terrorism. And there’s nothing in a regular court system that inhibits our regular courts from taking the necessary actions. 

EICHER: Now, there are political concerns with the law. A leading FISA skeptic among House Republicans is Doug Collins of Georgia. In his view, and he said this on Fox Business a few days ago, the votes aren’t there in Congress for reauthorizing FISA without changes.

COLLINS: People have lost trust in the Department of Justice. They lost trust in the FISA court. And, remember, the FISA court was put into place from the — in — the in the ’70s because of abuses in the intelligence system and abuses among law enforcement. [Right] Does that not sound familiar today? [Well] If it was worth reevaluating then, we need to reevaluate it now.

What he means when he asks, “Does that not sound familiar now?” are his concerns over the origins of the Russia probe, and how FISA figured into it. Collins wants reforms. President Trump says he wants reforms. How likely is that to happen? 

TYLER: Well, I think it’s going to be very likely that the Senate will not pass it without reforms. Speaker Pelosi wants the act reinstated just as it is right now, but of course the act was their primary weapon to try to force President Trump out of office. I think the important thing about what Representative Collins says is this, that we’ve lost faith in the FBI, CIA, and NSA. 

And I’d like to review just some of the findings that came from the inspector general’s reports on December 9, 2019. And there were three major findings there. The first is that the Justice Department failed to disclose that they had independently determined that there was no probable cause to investigate Carter Page. This is a disclosure they did not make to the FISA court. The probable cause is the Fourth Amendment trigger before the federal government can surveil anyone. 

Second main claim is that they failed to disclose an important fact, which is that Carter Page was actually working, apparently, for the CIA and not with the Russians. And, in fact, a lawyer with the Justice Department actually doctored a critical email to hide the fact that Carter Page was really working for the United States and not the Russians.

The third major thing is that the Justice Department failed to disclose any information that undermined the credibility of either Christopher Steel or his dossier. It lead to an extraordinary event that I think is unprecedented in our history, which was a rare public order from the FISA court on December 19th, 2019—10 days after the IG report—which barred any agents that were involved in the Carter Page FISA warrants from taking part in further proceedings before the FISA court. 

It also required a new type of oath that there has to be an oath taken and signed by anybody filing information before the FISA court that there is no exculpatory information that they are not disclosing to the court. And that’s why the essence of due process is to have opposing counsel in these proceedings. 

EICHER: Do you think the kind of reforms that are being batted around by folks like Congressman Collins—and what President Trump is hoping for—do you think that those reforms will fix it? 

TYLER: No, I do not. And the reason for that is even the reforms that I have heard talk about will not satisfy any of the five specific requirements in the Fourth Amendment in the Constitution. The Fourth Amendment is a very crucial guarantee of rights that government cannot surveil its citizens without a warrant based on probable cause. This specifically identifies the person to be targeted or the location to be surveilled. And even the reforms will not satisfy a single one of these requirements. 

The way that the FISA statute is set up, as I explain in detail in the article I wrote a couple years ago, it allows federal officials—without any showing of probable cause and without satisfying any of the requirements of the Fourth Amendment—to have surveillance, secret surveillance on U.S. citizens without any reason to suspect them of wrongdoing at all. And that’s simply unconstitutional and a violation of our rights.

EICHER: John Tyler is a professor of government at Houston Baptist University. Professor, thank you for your time. 

TYLER: Thank you. It’s been a pleasure.

(AP Photo/Ted S. Warren) People gather at the sundial in front of the Legislative Building, Monday, Feb. 3, 2020, at the Capitol in Olympia, Wash., during a blue-sky day. 

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