KOLB: Should Congress Reauthorize FISA?

Charles Kolb Charles Kolb was deputy assistant to the president for domestic policy from 1990-1992 in the George H.W. Bush White House
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Editor’s note: We endeavor to bring you the top voices on current events representing a range of perspectives. Below is a column arguing that the Foreign Intelligence Surveillance Act (FISA) should be renewed. You can find a counterpoint here, where Republican Colorado Rep. Jen Buck argues that FISA intrudes into the Fourth Amendment rights of American citizens and should not be renewed.

Plato, and then Juvenal, were right when they asked, “who will guard the guardians?”

That question should be at the heart of today’s debate on renewing the Foreign Intelligence Surveillance Act (FISA) that expires on March 15.

Enacted in 1978 and last reauthorized in 2017, FISA established an eleven-member Foreign Intelligence Surveillance Court (“FISC”) to provide oversight by federal district court judges of government surveillance warrants concerned with international terrorism, counterespionage and foreign intelligence. Such government intelligence-gathering is designed to protect Americans from terrorist acts.

FISA was supposedly focused on foreign intelligence, but, as we now know, there are troubling indications that FISC applications by the FBI included knowingly false and/or misleading information submitted to justify surveillance of Trump 2016 campaign operative Carter Page.

There’s an inherent tension in the sensitive balancing act of protecting national security while also preserving individual freedoms and constitutional rights. The FISA structure itself is premised on a delicate relationship between all three government branches: the Congress (which authorizes FISA), the Executive Branch (which implements it), and the federal judiciary (whose members serve as FISC judges).

But what if something goes awry? How is the FISC itself held accountable? And who should hold that court accountable for its secret decisions? The answer has to be the American people, through their duly elected congressional representatives.

We already know that our intelligence professionals (mostly dedicated patriots) need oversight, but not, of course, on the front page of newspapers or through social media. We have to trust Congress to provide such oversight and, when necessary, address abuses.

But what if top officials are part of the problem and try to circumvent accountability?

Former Director of National Intelligence James Clapper, Jr., lied to Senate Intelligence Committee member Ron Wyden when the senator asked him in sworn testimony in 2013 whether the government was collecting “any type of data” on Americans. Clapper told Wyden, “No, sir … not wittingly.”

After Edward Snowden’s massive data dump of highly classified intelligence information a few months later, it was clear that Clapper had lied under oath. When asked about his answer to Wyden, Clapper lamely said that his response was the “least untruthful” answer he could give. You don’t have to be Plato to know that “least untruthful” means “a lie.”

Clapper’s mistake was in lying, rather than telling the Committee that Wyden’s line of questioning should be pursued in executive session.

When I asked Clapper about this incident, face-to-face, after a D.C. breakfast, he first told me that he may have misunderstood Senator Wyden’s question. Then he said that perhaps he was confused about which federal statute applied to the question.

Wyden’s question was clear.  Clapper’s answer to me was hardly credible. It was likely devised to counter any claim that he “intentionally” lied, as most criminal statutes require demonstrated intent to violate the law as an element of the offense. Whatever the legal merits of Clapper’s position, it is beyond question that his response to Wyden short-circuited Congress’s legitimate intelligence oversight authority.

There’s a saying that “bad cases make bad law.” Recent abuses should not be a reason for scrapping FISA. But we definitely need a mechanism for holding the Executive Branch and the FISC accountable when it comes to domestic and foreign surveillance, regardless of which party controls the Congress and the White House.

We should learn from recent experiences, amend FISA as appropriate, and ensure that the American people’s elected representatives always have the ability to provide the ultimate checks and balances.

Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990-1992 in the George H.W. Bush White House