Imagine the game gets underway. The first pitch is a little outside but, instead of calling ball-one, the umpire coaches the catcher to move his glove a little closer to the plate. The puzzled batter swings at the next pitch, grounds it to short, and is astonished to see the paunchy second-base umpire shifting to his right to field the ball, while the shortstop tries to coach his footwork. That goes about as well as you’d expect: The ball slowly dribbles into center field. Seeing this, the batter rounds first to cruise in for an easy double . . . except the first-base ump suddenly calls him out for purportedly running out of the baseline. The utterly confused hitter stomps back to the visiting dugout. The home-team defenders wink at the vaguely embarrassed umps. The next batter steps up to the plate, looking just as puzzled as the first, realizing he has no clue and no chance.
This turns out to be a special league. The games are never televised. The sports journos don’t report on them. We only know about this one because a secret videotape leaked. When we watch it, we can only shake our heads and say, “Whatever this is, it isn’t baseball.”
FISA is like that. Whatever it is the judges are running, it’s not a judicial proceeding. More like what Fielding Melish would call “a travesty of a mockery of a sham . . . ”
The FISA follies continued this week with what is being portrayed as the latest shiner for an FBI that is running out of eyes to blacken. Justice Department inspector general Michael Horowitz’s new scathing report, following on his previous scathing report, describes his office’s audit of FBI warrant applications submitted by the Justice Department to the secret court created by the 1978 Foreign Intelligence Surveillance Act (FISA). In large part, Horowitz’s new report is an audit of what turns out to be a flawed internal audit — the FISA process being so thoroughly flawed that even its self-policing mechanisms are a joke.
The result, at the risk of further overplaying my baseball analogy, is that the Bureau is batting nearly a thousand (or, depending on your perspective, nearly .000). Virtually every one of the over 70 applications the IG selected for scrutiny — a representative sampling of five years’ work by eight busy FBI field offices going back to 2014 — was rife with errors: assertions that were unverified and apparently unsupported, flat-out inaccuracies, and typographical errors so blatant they elucidate that no one is reading these applications very carefully.
And that’s really the point. My meticulous NR colleague David Harsanyi is quite right to point out that, on the record the Bureau and the Justice Department have compiled going back to the Carter Page-surveillance fiasco that undergirded the Trump–Russia collusion caper, what we are seeing cannot be dismissed as mere sloppiness. It smacks of corruption. But that said, the elephant in the room remains the FISA court. Not that it is corrupt, but that it is institutionally unfit for the oversight role FISA contemplates. That invites corruption and sloppiness.
Baseball would not work, it would not be baseball, if the umpires and the defense were the same team. Yet that is the FISA arrangement. The judges are still in their robes, just like the umps in my outlandish analogy still wear their blue suits, maintaining the appearance of independence. But they are not performing a judicial role. They can’t be. Foreign-intelligence collection is not a judicial function.
FISA makes the court an advisory participant. Judges, instead, are supposed to be objective arbiters. In our system, they are not permitted to give advisory opinions to the political branches. Their role is to stand impartial between two adversaries — one of whom is often the government. Their role is to decide only cases and controversies based on concrete factual records of alleged wrongdoing — including wrongdoing by the government’s political branches.
In FISA, though, the judges’ job, like the FBI’s, is to make the system work. The system is national security, not due process. The system’s objective is to prevent clandestine foreign agents from undermining American interests through espionage, terrorism, and other hostile operations. In essence, the FBI defenders and the judicial umps join forces to prevent the other team from scoring. As a constitutional matter, this is really the FBI’s responsibility. The FISA court is incorporated to festoon the investigations with due-process bunting, like those red, white, and blue banners draped along the stadium façade on Opening Day. But the judges’ participation in the system is an anomaly. It is not the judges’ fault. The fault lies with Congress’s ill-conceived FISA system.
To be clear, national security, of which foreign-intelligence collection is a vital part, is a political function. That does not mean it is “politicized” in the partisan sense. It is a political function because the Constitution assigns it to the political branches of government. Protection against foreign threats, including how much indulgence to afford aliens and Americans who collaborate with hostile foreign powers, is a determination to be made in the first instance by the president and Congress, who answer to the American people whose lives are at stake.
We intentionally insulate the judiciary from political accountability and, derivatively, from the functions of the political branches. When the state allegedly violates an individual’s rights, the judge’s job is to referee between that individual and the state, not to participate in the latter’s operations against the former...
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