National Security Surveillance Apologists Are Starting to See the Light

Privacy advocates have long warned about potential abuses. Will the mishandling of the Carter Page investigation change some minds?

When Justice Department Inspector General Michael Horowitz testified to the Senate yesterday about the problems with the FBI's wiretaps on former Trump aide Carter Page, a couple of Republicans acknowledged their history of defending the federal surveillance apparatus from privacy-minded critics.

"[Sen.] Mike Lee [R–Utah] has warned me for four and a half years the potential for abuse in this space is terrible," said Sen. Ben Sasse (R–Neb.). "I constantly defended the integrity and the professionalism of the bureau and of the department that you couldn't have something like this happen."

Similarly, Sen. Lindsey Graham (R–S.C.) has long defended giving virtually any power to the government to fight terrorists—it's his entire post-9/11 shtick. But now that he's seen the FBI cutting corners and omitting important information when requesting permission to wiretap Page, he thinks the Foreign Intelligence Surveillance Amendments (FISA) court and its secret warrants maybe need some reform after all:

I'm a pretty hawkish guy. But if the court doesn't take corrective action and do something about being manipulated and lied to, you'll lose my support. I know a lot about what's going on out there to hurt us. And they're real threats and they're real agents and they're really bad actors out there. I'd hate to lose the ability of the FISA court to operate at a time probably when we need it the most.

But after your report, I have serious concerns about whether the FISA court can continue unless there's fundamental reform. After your report, I think we need to rewrite the rules on how you start a counterintelligence investigation and the checks and balances that we need. Mr. Horowitz, for us to do justice to your report, we have to do more than try to shade this report one way or the other. We have to address the underlying problem. The system and the hands in a few bad people can do a lot of damage.

Let's appreciate, first of all, that Sasse and Graham are acknowledging their past pro-surveillance positions before suggesting they may support reforms. If they had not, this would come off more as defending "their guy" Trump rather than realizing that there are serious problems with the FISA system itself.

But is this really the true reckoning for the government's ability to secretly snoop on U.S. citizens through the FISA court? Later that same day, the House overwhelmingly passed (with the support of most Republicans) a massive military spending bill that does nothing to reform these problems, prompting disappointment from surveillance critic Rep. Justin Amash (I–Mich.):

Despite many FISA abuses noted in the IG's report, nearly all Rs joined most Ds today to reauthorize intelligence activities without reforms to protect Americans' rights. Trump will sign it. They either don't know, don't care, or are partisan opportunists. https://t.co/2dJKOpqhrv

— Justin Amash (@justinamash) December 12, 2019

Amash, a former member of the GOP, was long denounced by fellow Republicans for his warnings against potential abuses of the warrant process. And now, of course, he and Lee (and Reason, and the American Civil Liberties Union, and FreedomWorks, and a host of other critics) are being proven correct.

Unfortunately, we have no idea how correct we are. As somebody who has been writing about federal surveillance under two presidents, I want to make it clear how unprecedented it is for any of us to get this much information about a specific FISA warrant process. This has made it impossible for national security journalists to contextualize what happened. And that makes it easier to try to pass off the many mistakes in the warrant process as an anomaly that doesn't represent typical FBI behavior, both for people trying to deflect criticism of the bureau and for people who want to argue that the FBI's screw-ups were a deliberate effort to get Trump.

Charlie Savage, who has been covering federal surveillance policies for the New York Times for years, describes how unusual it is that we all get such a close look at the inner workings of this FISA warrant process:

Congress enacted FISA in 1978 to regulate domestic surveillance for national-security investigations—monitoring suspected spies and terrorists, as opposed to ordinary criminals. Investigators must persuade a judge on a special court that a target is probably an agent of a foreign power. In 2018, there were 1,833 targets of such orders, including 232 Americans.

Most of those targets never learn that their privacy has been invaded, but some are sent to prison on the basis of evidence derived from the surveillance. And unlike in ordinary criminal wiretap cases, defendants are not permitted to see what investigators told the court about them to obtain permission to eavesdrop on their calls and emails.

Horowitz himself acknowledged Wednesday that this was the first time anybody in the Office of the Inspector General had delved into the contents of a specific FISA warrant application. When Sen. Marsha Blackburn (R–Tenn.) asked him how frequently he found mistakes in these warrant applications, he explained to her that his office had only in the past done "high-level" reviews of the process. None of us outside the FBI can say, with the information we have right now, how typical this behavior is. We do know that while the FISA court has approved nearly all surveillance warrants (99 percent of them), the court has inquired and received additional information or changes to the warrant applications about a quarter of the time.

The good news from Horowitz's report is that the inspector general is not going to wait for either Congress or Attorney General William Barr to decide what to do in a highly politicized environment. The Office of the Inspector General will audit the FBI to determine how well the warrants against those 232 other Americans will withstand this sort of scrutiny.

Next year we'll see how serious Sasse and Graham are about FISA reform. An extension of PATRIOT Act surveillance authorities was shoved into a stopgap spending bill passed (primarily by Democrats) in November. That extension expires in March. At that point, Congress will have to decide whether it really wants to reform how secret surveillance is used against Americans or if it just cares how it affects Donald Trump.