If it’s broken from the start, it can never be fixed
A more-than-contrite Angelo Codevilla, as one of the co-authors of the FISA abomination, offers a powerful denunciation.
This author might be the last surviving member of the Senate Intelligence Committee staff that wrote FISA. What follows is an account of how this law came about — what each of its major proponents intended to achieve, what the law did, how it was amended and used.
Nobody in 1978 intended for FISA to legalize Watergate. That is why my own warning at the time fell largely on deaf ears. As the country realizes that something is wrong with FISA and looks for some reform, what follows argues that no fix is possible because the problem lies in the law’s very heart, namely the requirement that electronic surveillance for purposes of intelligence be subject to prior authorization by a court, acting ex parte in secrecy. Hence, the only remedy is to scrap FISA entirely and return to pre-1978 constitutional practices.
FISA’s legal mechanism has worked as expected: Between 1979 and 2019 the court granted 33,942 warrants while denying only 12 requests — 0.03%. Meanwhile, the law’s unfolding logic was transforming a rubber stamp into a political sword and shield.
My basic argument against FISA, other than its patent un-constitutionality, was that ex parte pre-clearance of surveillance by a judiciary whose ignorance of the cases on which it rules is broken only by the agencies, and that acts in secret, poses an irresistible temptation to abuse.
The American Bar Association’s Committee on Law and National Security invited me to debate the proposed FISA against then-professor Antonin Scalia at the University of Chicago’s law school. I said that requiring judicial authorization for an executive action in pursuit of national security is an unconstitutional obstruction of the president’s power as commander-in-chief. Scalia, making no attempt to argue for FISA’s constitutionality, pointed out that the president, i.e. the bureaucracies, supported involving judges in national security because they realized that the obstruction is theoretical rather than practical: FISA’s secret court, having no basis for judging what is or is not required for national security, would merely give the agencies the confidence to do their jobs. I countered that this very confidence poses the greatest problem: although strictly speaking the court can confer only a procedural imprimatur, in practice that imprimatur shields the bureaucracies — and the president — from having to defend the substantive value, and the propriety, of any act of surveillance. Hence, FISA would present the agencies with an irresistible temptation to surveil Americans for political purposes, certain that the formal legality of the surveillance would inhibit remedying whatever substantive harm had been done thereby. In other words, we were legalizing Watergate. “They wouldn’t do things like that!” he replied.
As we have experienced, the agencies have done precisely that. The words over which FISA’s authors in the Senate Intelligence Committee and in the agencies had agonized and on which they had agreed remained the same. But the nasty logic of secret ex parte preauthorization unfolded, primarily because the people who interpreted them adopted a willful sociopolitical identity. But it helped that FISA itself was amended. In 2008 Congress passed and President George W. Bush signed into law FISA’s Section 702, which removed the requirement for a specific warrant from the FISA Court for tapping communications between foreign targets and Americans in the United States and greatly broadens the use of data collected “incidentally” on the Americans presumed to be the foreigners’ counterparts.
Section 702 was the first and primary authority by which the agencies surveilled the Trump campaign, ostensibly while trying to listen in on Russians. The other investigations and human penetrations of the campaign were premised on the same pretense. But the agencies’ real targets were domestic political opponents. Of course, they found nothing and provoked nothing useful for derailing the Trump campaign. They did generate a stream of innuendos in the media. But that did not stop the Trump campaign from getting into range of victory. Hence, weeks before the election, the agencies’ leaders, facing the prospect of having to defend what they had done, formally requested the FISA court for a warrant on Carter Page, a minor Trump adviser. At this point, the warrant was useless for gathering information. Judicial blessing for surveillance of the Trump campaign was absolutely essential, however, retrospectively to validate that it had been proper — literally, warranted.
Codevilla dismisses any prospective “fix” for FISA as a practical impossibility due to the law’s very nature and intent, much as I maintain that there is no way to fix the FBI. The trouble with both isn’t so much that they’ve somehow become broken or aren’t working; it’s that, because of the way they were originally conceived and structured, they’re working exactly as the Deep State malefactors now making use of them want. Which is one reason why we’ll never be able to rid ourselves of either one.
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