With the invisible threat of a virus and the all-too-visible scar of urban riots, there is little bandwidth among the commentariat to report on the precarious state of a key part of the Foreign Intelligence Surveillance Act (FISA). This is understandable, but unfortunate.
Long after we have a coronavirus vaccine and our cities are once again at peace, the potential for the misuse of this law could still shadow the freedoms of every American.
Why does FISA have the potential to unravel? It primarily stems from over six months of continued revelations about misconduct by the FBI, Justice Department and associated political actors.
ROD ROSENSTEIN TESTIFYING ON CAPITOL HILL WEDNESDAY ABOUT RUSSIA PROBE: WHAT TO KNOW
Justice Department Inspector General Michael Horowitz’s report detailed the FBI’s errors of omission and commission (including a doctored document in sworn testimony to the FISA Court denying my assistance to the CIA).
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Horowitz next documented that 29 FISA applications out of a sample of 29 were flawed. Finally, came the revelations that the FBI invented a criminal predicate to lure National Security Adviser Michael Flynn into a meaningless legal trap. In doing so, the FBI greatly exceeded its authority while second-guessing President Trump about the fitness of Flynn to serve in his position.
Former Deputy Attorney General Rod Rosenstein, who helped lead the charge on much of what has happened during these fateful years that followed, will testify Wednesday before the Senate Judiciary Committee, chaired by Sen. Lindsey Graham, R-S.C.
No doubt Graham will have many questions for Rosenstein. Many other Americans, including me, have countless questions as well.
What was Rosenstein thinking when he approved the fourth and final of my FISA warrants, after so many of the lies that precipitated this fiasco had already been debunked? How did that application manage to elide all the exculpatory evidence the FBI held about me and other supporters of President Trump? Did the bureau lie to Rosenstein as well, or was he somehow complicit?
When Rosenstein faces tough questioning in the committee room, he will have to think quickly on his feet as many members of the Senate express their outrage and concern. Thanks to Rosenstein, I know what that feels like.
I have little doubt, however, that Rosenstein – accomplished lawyer that he is – will manage to once again say a lot and nothing at the same time. I expect no bombshell revelations.
These continued realities underscore the wisdom of President Trump’s recent tweet that stopped the reauthorization of a major FISA provision cold. Section 215, known as the business record provision, allows the FBI to snoop without a warrant on any information we give to businesses – from video on a doorbell camera, to your search history and web-browsing data.
In recent months, an odd-fellows coalition of progressives and conservatives rebelled against this state of affairs.
When the leadership of both houses of Congress initially tried to tamp down debate, it sparked a revolt by these reformers. Conservative and liberal stalwarts – Republican Sen. Mike Lee of Utah and Democratic Sen. Patrick Leahy of Vermont – enlisted a legal expert in privacy law with a high-level security clearance to examine applications to surveil political campaigns, officeholders, religious and media organizations.
That measure passed 77 to 19 in the Senate. The House was on the verge of passing another measure, favored by a similar left-right coalition, to protect Americans’ online search histories and web browsing data when President Trump upended the whole thing with a tweet that promised to veto this reauthorization altogether.
The president’s calculation seems to be precisely the crowbar needed here, rather than a scalpel.
Those who support the U.S. Constitution and the civil liberties of all Americans are right to demand that Washington should wait until there is a full accounting of the abuse of FISA from 2016 to 2017 before even considering the reauthorization of any part of FISA.
With a large number of progressive critics of the surveillance state finding common ground with both the White House and many Republicans, there is an appetite now to allow FISA authorities to continue to expire.
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Building upon the brave moves by former acting Director of National Intelligence Richard Grenell, a few guardians of civil liberties within the federal bureaucracy have begun taking further important steps to declassify a range of essential documents.
After countless decades of limited accountability, these important measures have sparked a new movement toward unprecedented levels of transparency in the national security state.
The reformers’ strategic goal is clear. Before any FISA authority can be reauthorized, we must document how the law was used to foment a soft coup against an American president, radically disrupting the smooth transition of power for the first time in our nation’s history.
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Having signed that final false warrant against me in June 2017, Rosenstein has a chance to serve his country by finally coming clean. Over the coming months, federal prosecutor John Durham and other authorities in the Justice Department can follow up with the ongoing investigations. By answering many unanswered questions about this FBI and DOJ abuse, this will mark an essential next step towards bringing any perpetrators to justice.
Only then can we think about restoring confidence in a broken system, rebuilding FISA from the ground up, including with sensible provisions like those back by Sens. Lee and Leahy and the online privacy reforms.
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