The fight against terrorism has always, at its heart, pitted government power against the rights and liberties of Americans. Congress has sought to impose safeguards on this process in order to protect those rights. Now it is clear that those safeguards are woefully inadequate.
On Tuesday, the Justice Department inspector general said he had randomly selected 29 applications the FBI made to the secret Foreign Intelligence Surveillance Court in order to monitor Americans believed to be involved in providing foreign intelligence and/or aiding terrorism. He found errors in every single one.
This review comes after an audit last year found 17 serious errors in the FBI’s requests to the court to surveil Carter Page, the former campaign manager to Donald Trump. Page was under investigation for allegations he colluded with Russia to influence the 2016 election.
The president has used that audit to debunk the investigation, and with good reason. These latest findings, however, suggest larger systemic problems.
That’s bad news for Americans. The founders deliberately crafted a Constitution intended to curb government’s ability to abuse power and rob citizens of due process. Congress first passed the Foreign Intelligence Surveillance Act in 1978 as a reaction to abuses by the Nixon administration and as a way to protect Americans.
The FISA court was created as a check on the power of the Justice Department. It is to hear applications for surveillance warrants and determine whether probable cause exists to allow them to proceed. But the entire process remains secret. Generally, the public is informed only about the number of applications the court has approved.
Law enforcement argues that this secrecy is essential in the age of terrorism. Investigators don’t want to tip their hand. In addition, the court needs to respond quickly in order to allow law enforcement to respond to threats quickly. In some cases, law enforcement may conduct surveillance, then obtain a warrant within a certain time limit after the fact. If the president deems surveillance necessary to gather vital foreign intelligence, he may order it without a court order for up to a year.
These already are lax rules, although the need to act rapidly in the name of national security is compelling. But the court’s inability to properly vet warrant applications, and the FBI’s inability to properly prepare those applications, is troubling.
In 2001, the government crafted what are known as Woods Procedures, intended to safeguard against haphazard warrant applications. In four of the 29 applications reviewed, investigators found no attempt to comply with these procedures at all. In 25 of them, they found “apparent errors or inadequately supported facts.”
These shortcomings are serious when they involve official attempts to uncover problems involving the nation’s political leaders, which raise questions about political bias and motives other than upholding law. They are inexcusable and dangerous to the liberties of Americans when used to justify the surveillance of citizens.
Utah Sen. Mike Lee has been sounding a warning voice about the potential for mistakes and abuse in the FISA system since he arrived in the senate in 2011. During Senate judiciary hearings in December of last year, Democrats and Republicans noted Lee had been right about flaws in the FISA system. These revelations demand swift and decisive action.
Americans should never be in a position of having to trust in the purity of power without stringent oversight.
Congress needs to revisit FISA and the way in which warrants are granted. Clearly, the inspector general has uncovered systemic problems that should be rectified.