Among the many important things Congress has failed to accomplish this year, the most urgently needed may be the one that’s least talked about: reauthorization of the Foreign Intelligence Surveillance Act (FISA).
FISA provides the statutory authority for the National Security Agency, the CIA and the FBI to conduct intelligence operations against people who may be engaged in espionage, terrorism or other aggression against the United States. They do so by intercepting telephone calls, emails, social media posts and pretty much every other means of communication.
FISA prohibits surveillance of any U.S. citizen regardless of where they are and of aliens within our borders. FISA operations are overseen by the House and Senate intelligence communities and a special court — the FISA court — which also operate in secret.
You don’t hear about typical FISA operations such as the one that nabbed Najibullah Zazi. According to the NSA, an email address used by an al Qaeda courier in Pakistan was targeted for interception. One intercepted message indicated that a person in the U.S. was seeking advice on how to make explosives. The FBI identified that person as Mr. Zazi and their investigation led to a terror cell of which he was a member that was planning bomb attacks on New York subways. Mr. Zazi and other members of the terrorist cell were arrested and convicted of planning the attacks.
That’s only one of the hundreds of successes under FISA that have made the law probably the most valuable tool our intelligence agencies have in the war against Islamic terrorism.
The problems with FISA — and, as we’ll see in a minute, beyond it — are that Congress hasn’t made the law permanent and the apparent abuses of power by the Obama administration.
Since its enactment in 1978, Congress has repeatedly set dates on which FISA expires requiring its reauthorization. The next expiration date is December 31. Unless Congress gets its act together quickly FISA may expire leaving intelligence agencies without statutory authority to interdict terrorists and other intelligence operations against our nation.
Reauthorization of FISA won’t be easy. Both congressional intelligence committees are tied up with the allegations of Russian interference with the 2016 presidential election. There is, as always, liberal (and libertarian) ideological opposition to FISA that threatens to block reauthorization.
FISA must be reauthorized quickly and, in fact, should be made permanent. The benefits to our intelligence community would be immediate and substantial. A permanent FISA would stabilize those agencies’ abilities to plan, budget for and run FISA operations more smoothly and with greater effect.
The unspoken issue with FISA is the Obama administration’s abuse of its power for political purposes. If properly investigated that will likely prove to be a far more serious scandal than Watergate.
That brings us to what happened to Paul Manafort (for a time, Mr. Trump’s campaign manager) and Gen. Mike Flynn, first a Trump campaign adviser and then, briefly, the president’s national security adviser.
Though FISA purports to limit the executive’s power to conduct surveillance for intelligence purposes, the courts have sustained the president’s inherent constitutional power to do so which Congress cannot limit. It appears that the Obama administration abused both FISA and the president’s inherent powers for political purposes.
Beginning in 2014, Mr. Manafort — a US citizen — was surveilled pursuant to a FISA warrant reportedly because his and other consultant firms were working for the former Ukrainian government. Warrants issued by the FISA court must be supported by sworn affidavits, usually from FBI agents, that allege the subject is believed to be intentionally conducting covert intelligence operations against the U.S.
Such warrants must be authorized by top-level people in the FBI and Justice Department. A second warrant against Mr. Manafort was issued sometime in 2016 after the first reportedly failed to yield evidence. Surveillance reportedly continued through early 2017. Other warrants may have been issued against Gen. Flynn and other Trump campaign advisers and surveillance may have been conducted without them under the president’s constitutional powers.
However this surveillance began, the Obama administration discovered a gold mine of useful political information in FISA intercepts. Soon, people including U.N. Ambassador Samantha Power were reportedly demanding that names in FISA reports be unmasked — revealed to her despite the “minimization” procedures that protect our Fourth Amendment rights — at the rate of one per day through the campaign and almost until Inauguration Day.
What use the Obama administration made of this information should be the subject of a Watergate-like special congressional investigative committee. Such a special committee is necessary because the House and Senate intelligence committees, though well-informed on abuses of FISA including those by Ms. Powers, have chosen not to conduct the necessary investigation.
When the regular intelligence committees reauthorize FISA they should also ensure that abuses of power committed by people such as Ms. Powers are federal felonies. It’s pretty clear that unmasking of names in FISA reports to use the information for political purposes deprives that person of his Fourth Amendment rights thereby violating 18 U.S. Code Section 242. But “pretty clear” isn’t good enough.
Congress should enact an addition to the criminal code making it a federal felony to use information gathered under FISA or the president’s constitutional intelligence-gathering powers for political purposes in any U.S. election. A 10-year prison term could be a good deterrent.
• Jed Babbin, a deputy undersecretary of defense in the George H.W. Bush administration, is the author of “In the Words of Our Enemies.”