Mar 06 2020
The FBI improperly spied on the Trump campaign in 2016. We must ensure the bureau can’t do it in 2020 or ever again. Because if the FBI can unfairly target a presidential campaign, imagine what it can do to regular Americans.
Here’s how we know what happened. In December, Department of Justice Inspector General Michael Horowitz released a 478-page report detailing over a dozen “serious performance failures” in the FBI's use of the Foreign Intelligence Surveillance Act (FISA) to intercept the communications of President Trump’s campaign supporters. Horowitz identified “at least 17 significant errors or omissions” in the applications to spy on Trump campaign official, Carter Page.
We cannot let Congress forget. We must remember the FBI’s failure to respect Americans' right to privacy. More importantly, we must fix the problems with the FISA program so that these violations of United States citizens’ civil liberties never happen again.
Our Founding Fathers knew well the danger of a government with the power to snoop through the private communications of law-abiding Americans. They included the Fourth Amendment in the Bill of Rights to limit the government’s ability to spy on its citizens. They required law enforcement to go to court and show probable cause for why a specific person or place should be searched or seized.
Unfortunately, the federal government often justifies violations of privacy by claiming they need to protect us from foreign espionage and interference. While the threat of foreign espionage is very real, abuse of government’s surveillance powers is all too common.
As former White House Counsel Emmet T. Flood wrote to Attorney General Barr nearly a year ago: “It would be well to remember that what can be done to a President can be done to any of us.” If the FBI can unfairly target a presidential campaign, imagine what they can do to regular Americans. This isn’t just a hypothetical — we’ve seen it happen.
In 1976, the Church Committee released a report showing that the FBI maintained files on one million Americans between 1960 and 1974 including public figures like Martin Luther King Jr. and Muhammad Ali. The report concluded that presidents from both political parties had “permitted, and sometimes encouraged, government agencies to handle essentially political intelligence.”
Congress responded to these systematic violations of the Fourth Amendment by passing the Foreign Intelligence Surveillance Act in 1978. This law created a parallel system for federal law enforcement to utilize when protecting Americans from foreign intelligence activities. Among other items, the FISA program allows government agencies to monitor American citizens’ activities on an easier standard than a domestic law enforcement agency if the federal government first shows that the citizen is working with a foreign power.
This balancing act only works if the government agents running the system are unbiased and competent enough to balance the tradeoffs. Unfortunately, Inspector General Horowitz’s report obliterated that premise.
According to Horowitz’s report, the FBI team that investigated the Trump campaign was “hand-picked” for “one of the most sensitive FBI investigations.” These agents were supposed to be the brightest and best, of the highest character and professionalism, committed to protecting all Americans’ civil liberties. Yet Inspector General Horowitz found widespread failures including an outright lie to the FISA Court (FISC.)
We are faced with two possibilities.
Either these FBI agents intentionally used the power of the federal government to wage a political war against a presidential candidate they despised, or these agents were so incompetent that they allowed a paid, foreign political operative to weaponize FISA to spy on a rival political campaign.
Neither conclusion is acceptable. FISA must be reformed now. Any proposal to renew the program must include at least some of the following elements:
- Increase oversight of FISA applications. Current law requires the FISC to appoint an independent party (amicus) to provide oversight of FISA application only when there it involves a novel or significant interpretation of law. The FISC should be mandated to appoint an amicus in all cases involving any “sensitive investigative matter” such as the activities of a candidate and their staff, elected officials, political organizations or religious organizations.
- Force agencies to be fully honest with the FISC. Government agencies submitting a FISA application should be required to provide all information in their possession as part of the application, including any exculpatory evidence.
- Strengthen protections on First Amendment activities. Law enforcement agencies are currently not allowed to seek surveillance on Americans based “solely” on their First Amendment activities. This standard should be raised to “significantly.”
- Require a showing of probable cause. It should show that a known U.S. person is an agent of a foreign power or has been or will soon be involved in an act of terrorism or in clandestine intelligence activities in violation of the law for Section 215 warrants.
“If men were angels, no government would be necessary,” James Madison wrote in Federalist 51. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.“
In 1788, long before the establishment of a secret court to authorize the electronic surveillance of Americans, Madison understood that the fallible nature of men, especially those in power, made it incumbent that the government control itself.
These FISA reforms will check the federal government’s surveillance power making it great again.