The Intelligence Community Must Think We Were Born Yesterday

On Friday, an explosive ruling from the Foreign Intelligence Surveillance Court (FISC) was released. It proved what we’ve been saying for years: The FBI, and the intelligence community more broadly, can’t be trusted not to spy on Americans.

As the ruling notes, the FBI abused its foreign intelligence authorities, during the course of a single year, to warrantlessly spy on:

  • 133 people arrested during protests against the police killing of George Floyd
  • An unknown number of victims and next-of-kin in police homicides
  • 19,000 donors to an (undisclosed, unsuccessful) congressional campaign
  • Over 20,000 people in or near the Capitol on the day of the January 6th insurrection.

Tearing a leaf out of its civil rights era playbook, the FBI tried to justify this by saying that they were looking for evidence of foreign agitators.

You and I, looking at this, might reasonably judge that the procedures under which these abuses occurred were gravely deficient, and that the sincerity of the agencies’ annual declarations that they had changed, baby, but for real this time, was questionable. But you and I aren’t the FISC. After documenting exactly the kind of abuses that should have led them to conclude that the intelligence community, and particularly the FBI, were violating the constitution, the FISC once again certified that the procedures the intelligence community was using, conformed to the Fourth Amendment.

This jurisprudence of the Furrowed Brow is getting old. It’s literally FISC judges’ job to stop these programs if they’re unconstitutional. If they won’t even do that, faced with this kind of evidence, then why are they even there?

The problem isn’t a “wokeified FBI.” The problem is that generations of politicians, with a few honorable exceptions, have found it politically easier to give the intelligence community a free hand, than to show a lick of spine and independence. Fake “oversight” is a lot less politically costly than real oversight.

Especially since 9/11, the intelligence community has declared open season on a constantly shifting array of Public Enemies: Black people, Muslims, the environmental movement and antifa. Now that its surveillance powers are up for review, the FBI is eager to show Democrats that it can also use those powers to go after “radical Catholic traditionalists“, the governments of Russia and China, and dealers in fentanyl and ransomware.

Every member of Congress should learn and remember this: It isn’t about who the intelligence community tells you should be your Monster of the Week. That’s mainly to keep you distracted, and them well funded and unconstrained. If one threat doesn’t feel existential enough, they’ll happily substitute another, in case you start reflecting too deeply that, as was the case with Dr. Frankenstein, the real monsters may be the people who bring monsters to life.

Year after year, Presidency after Presidency, while we were watching the power and pizzazz of the latest War on Whatever on the teevee, the intelligence community has been quietly and carefully loosening their own bonds, and getting politicians to turn a blind eye to their extremely broad powers and unconstitutional surveillance of the rest of us – including the politicians themselves.

Intelligence community professionals now face absolutely no personal or professional consequences for going too far – so long, that is, as the “too far” is not with the aim of protecting people’s civil liberties, as Drake and Snowden and Kiriakou and Albury have all found out to their cost. Nobody ever prosecuted James Clapper, former DNI, for lying to Congress that the intelligence community wasn’t collecting the communications of millions of Americans. Former NSA Director Michael Hayden‘s punishment for running mass surveillance on Americans was a soft gig on CNN. Avril Haines, current DNI, and Gina Haspel, current CIA Director, who helped to cover up US torture, got promotions. Seems like in the intelligence community, being guilty of great evil, and being willing to help cover up the great evil of others, is your real ticket to the big time.

We refuse to pretend that these are Just Responsible and Patriotic Folks who are Doing Their Best to Keep Us Safe. The senior managers of the three-letter agencies are, in fact, some of the worst of us; they own the (mis)information; and Congress is the only entity that has the power and (it seems like, this year, the will) to rein them in.

As Rep. Kelly Armstrong noted in a hearing of the much-vilified “Weaponization Subcommittee” this week, FBI Director Christopher Wray’s glib declarations that “all of the people engaged in misconduct are no longer with the FBI” aren’t enough. Talking about “internal oversight, technical updates and training” is no longer enough. There are “no consequences, no penalties, no punishment, no incentives for the FBI to hold themselves accountable.” Consequences are for the little people. And, in this context, even members of Congress are the little people. They have to face re-election; the intelligence community never do.

This rot didn’t start with Biden, or with Trump, or with Obama. It’s not (primarily) about who’s in the Oval Office (though let’s just say that we’re not holding our breath for “author of the PATRIOT Act” Joe Biden, or Guantanamo torture enabler Ron DeSantis, to clean house). With the White House and the courts both asleep at the switch, it really is up to Congress to act, and it’s up to us to make them.

Only the impending sunset date of December 31, 2023, for Title VII of FISA, provides the necessary leverage for a real, comprehensive legislative solution. The thrust of the Fourth Amendment is as clear as it ever was: Before the US government acquires the communications of a US person, they need to get a warrant.