On June 17, 1972 police caught four men unconnected with politics, led by James McCord, who worked for President Nixon’s re-election campaign, in the act of installing electronic listening devices in the Democratic National Committee’s Watergate hotel headquarters. McCord implicated the scheme’s masterminds: G. Gordon Liddy, General Counsel for the campaign, and E. Howard Hunt, a marginal White House staffer. All were convicted at least of conspiracy, burglary and wiretapping, and served part or most of their sentence of one to five years in federal prison.
So shocking was the notion that officials of the party in power, however minor and regardless of how little power they wielded, might be using any of the nation’s resources to secure their party against a political challenge, that a bipartisan clamor arose to discover who in the White House knew what about the Watergate conspiracy. Because President Nixon lied about knowledge of some details he knew – not about the conspiracy but about the cover up – he resigned rather than face impeachment.
Watergate, Maximized and Legalized
Circa March 2016, as it appeared that Donald Trump would be the Republican Party’s presidential nominee in the forthcoming election, someone with White House authority – we do not yet know who or through what channel – directed the National Security Agency, electronically to surveil communications in and out of Trump’s campaign headquarters in New York’s Trump Tower. At the same time, the CIA and FBI were vectoring longstanding CIA assets, including Stefan Halper in Britain and Joseph Mifsud in Italy as well as Australia’s Alexander Downer not so much to gather information about low level Trump advisers’ contacts with the Russians, but to provide pretexts for further surveillance of Trump and, above all, for press stories implicating Trump with Russia. By July 2016, the FBI and CIA had encompassed the Trump campaign in formal counterintelligence and criminal investigations, while shopping suggestive allegations to the press. The so-called Steele dossier, alleging a host of details, some lurid, all false, was part of this classic political agitprop.
This effort was the product of a homogeneous mixture of persons official and officious, including John Brennan and James Comey directors of the CIA and FBI, respectively, James Clapper, Director of National Intelligence, along with some of the highest officials of these agencies, of the Department of Justice and of State. These people are related to one another socially, politically, financially, professionally, maritally and extra-maritally. They served Democrat president Barack Obama while furthering the election of his chosen Democrat successor, Hillary Clinton. The notion that they acted without at least his tacit approval is not worth a second thought. What they did involved breaking not just the lock on a hotel door, but any number of laws, including the once sacrosanct protection of communications intelligence.
The amount of U.S government force that this group actually used against the opposition candidate dwarfs the wildest dreams that the Watergate burglars might have had. And yet to this date none of the dozens of people involved has been jailed, or even indicted.
While the U.S. government bureaucracy’s absorption into a partisan ruling class that no longer regards itself obliged to respect the ruled is the main reason for this, it is just as true that the main legal argument against punishing those who carried out our time’s super-Watergate is that, regardless of how many laws they broke, they arguably acted within a law that did not exist in 1972, namely the Foreign Intelligence Surveillance Act of 1978, FISA.
FISA Is a Rubber Stamp
This author may be the last surviving member of the Senate Intelligence Committee staff that wrote FISA. What follows is an account of how this law came about – what each of its major proponents intended to achieve, what the law did, how it was amended and used.
Nobody in 1978 intended for FISA to legalize Watergate. That is why my own warning at the time and since that it would do precisely that fell largely on deaf ears. As the country now realizes that something is wrong with FISA and looks for some reform, what follows argues that no fix is possible because the problem lies in the law’s very heart, namely the requirement that electronic surveillance for purposes of intelligence be subject to prior authorization by a court, acting ex parte in secrecy. Hence, the only remedy is to scrap FISA entirely and return to pre-1978 constitutional practices.
All manner of surveillance for purposes of foreign intelligence is inherently part of the President’s Article II powers over foreign affairs and the armed forces. All presidents had so conducted it. By the late 1970s, however, the intelligence bureaucracies—CIA, FBI, NSA—had become leery of doing any electronic surveillance, even of Soviet Bloc embassies and persons, because some American leftists who had worked with said embassies and persons against the U.S. in the Vietnam war had filed lawsuits against prominent individuals in these bureaucracies. Hence the agents clamored to be as protected from lawsuits in national security cases as in cases of wiretaps for domestic criminal purposes. They wanted judicial warrants of pre-authorization, and asked Congress to establish a court to issue them ex parte, secretly. They did not worry that the judges would hamstring them. What would judges know about national security anyhow? FISA would be pro forma.
Leftists joined the agencies’ demands for FISA fully realizing that judicial approval would be a rubber stamp. Correcting abuses was not the high on their list of objectives in seeking judicial pre authorization. After all, ex post facto lawsuits had served them so well that the agencies were crying uncle! Their principal concern was to specify the ways in which the agencies would think and act. Judicial approval would be pro forma, and they were going to define the forma. They would do it co-operatively with the agencies. As we sat around the table defining FISA’s requirements, the lead drafter, in constant contact with the agencies, would tell the rest of us what they would and would not agree to. especially as regards the key point: what to do with information about the Americans with whom the wiretapped foreigners would be in contact – so called “incidental collection.”
They argued that the rules they were writing and that defined the meaning of incidental collection and minimized the use of data on Americans would protect Americans as never before. At that point, I suggested that, if they were serious, the law would have to impose severe penalties on whomever violated the procedures. They rejected this out of hand as an unwarranted insult on U.S intelligence because they were confident that FISA would lead the Agencies to share their values. Alas, as it turned out, both sides’ values ended up changing drastically for the worse, together.
The Left had another agenda as well: to extend to foreigners some semblance of Fourth Amendment procedural protection, rejecting my argument that writing rules that apply equally to Americans and foreigners would result instead in treating Americans as if they were foreigners.
FISA’s legal mechanism has worked as expected: Between 1979 and 2019 the court granted 33,942 warrants while denying only 12 requests – 0.03 percent. Meanwhile, the law’s unfolding logic was transforming a rubber stamp into a political sword and shield.
Power and Purpose
Few paid attention to the Constitution. On the surface, any law that conditions the exercise of an inherently executive function on prior approval by the judiciary mixes powers that the Constitution expressly separates. Besides, ex parte secret proceedings are wholly contrary to responsible government. These are the proceedings that defined Henry VIII’s infamous Star Chamber.
My basic argument against FISA, other than its patent un-constitutionality, was that ex parte pre-clearance of surveillance by a judiciary whose ignorance of the cases on which it rules is broken only by the agencies, and that acts in secret, poses an irresistible temptation to abuse.
The American Bar Association’s Committee on Law and National Security invited me to debate the proposed FISA against then-professor Antonin Scalia at the University of Chicago’s law school. I said that requiring judicial authorization for an executive action in pursuit of national security is an unconstitutional obstruction of the president’s power as commander in chief. Scalia, making no attempt to argue for FISA’s constitutionality, pointed out that the president, i.e. the bureaucracies, supported involving judges in national security because they realized that the obstruction is theoretical rather than practical: FISA’s secret court, having no basis for judging what is or is not required for national security, would merely give the agencies the confidence to do their jobs. I countered that this very confidence poses the greatest problem: although strictly speaking the court can confer only a procedural imprimatur, in practice that imprimatur shields the bureaucracies—and the President—from having to defend the substantive value, and the propriety, of any act of surveillance. Hence, FISA would present the agencies with an irresistible temptation to surveil Americans for political purposes, certain that the formal legality of the surveillance would inhibit remedying whatever substantive harm had been done thereby. In other words, we were legalizing Watergate. “they wouldn’t do things like that!” he replied.
As we have experienced, the agencies have done precisely that. The words over which FISA’s authors in the Senate Intelligence Committee and in the agencies had agonized and on which they had agreed remained the same. But the nasty logic of secret ex parte preauthorization unfolded, primarily because the people who interpreted them adopted a willful socio-political identity. But it helped that FISA itself was amended. In 2008 Congress passed and President George W. Bush signed into law FISA’s Section 702, which removed the requirement for a specific warrant from the FISA Court for tapping communications between foreign targets and Americans in the U.S. and greatly broadens the use of data collected “incidentally” on the Americans presumed to be the foreigners’ counterparts.
Section 702 was the first and primary authority by which the agencies surveilled the Trump campaign, ostensibly while trying to listen in on Russians. The other investigations and human penetrations of the campaign were premised on the same pretense. But the agencies’ real targets were domestic political opponents. Of course, they found nothing and provoked nothing useful for derailing the Trump campaign. They did generate a stream of innuendos in the media. But that did not stop the Trump campaign from getting into range of victory. Hence, weeks before the election, the agencies’ leaders, facing the prospect of having to defend what they had done, formally requested the FISA court for a warrant on Carter Page, a minor Trump adviser. At this point, the warrant was useless for gathering information. Judicial blessing for surveillance of the Trump campaign was absolutely essential, however, retrospectively to validate that it had been proper – literally, warranted.
To this day, the perpetrators’ and the Democratic Party’s defense is that, although “mistakes were made,” what their U.S. government did to thwart the opposition candidate’s campaign (and then his presidency) was “properly predicated” meaning there was plausible enough reason to treat Trump as a possible if not an actual tool of Vladimir Putin. How do we know? Why, the applications to the FISA court had been duly filed, the court had approved, and the Justice Department’s Inspector General found no “testimonial or documentary proof” that any of this was not properly predicated. In other words, our current super-Watergate may not have been right, but FISA made it arguably legal – especially when those doing the arguing are the ones in power.
Of what might a FISA fix consist? No one has pointed to anything wrong with any of the copious words by which my former colleagues sought to minimize the possibility of the agencies’ interference with Americans’ constitutional rights. And even Section 702 describes information on Americans as merely “incidental” to the intended object of surveillances. The problem lies in the intentions of those in power. That is why the words did not prevent the people in charge from doing what they wanted. Why should any different words inserted into FISA have any different effect?
New “parchment barriers” will suffer the same fate as previous ones because FISA’s prior judicial authorization gives those in charge the presumption of legality as well as the power to give the most convenient meaning to any and all strictures and procedures. Even were a statutory “fix” to mandate jail terms for violation of terms or guidelines, the effects would not be the same as they would have been forty years ago because the people in charge nowadays are of very different character from those of the last century. And they are the ones who determine the meaning of words. FISA, by providing an a priori, secret, joint executive/judicial imprimatur for surveillance of Americans, be it ever so nominally “incidental,” gives these people the presumption of righteousness plus the capacity wrap themselves in classified information, and ultimately to dismiss crimes as “mistakes.”
No. So long as FISA remains on the books, the party that controls the intelligence agencies can be counted on to make Watergate-on-steroids a part of American public life.
The only remedy for FISA is to repeal it and return to the prior system based on Constitutionally defined responsibilities. Let the executive branch conduct surveillances for intelligence purposes according to its own guidelines. But then let us give free rein to challenging executive judgments in open court, through adversary process, with full powers of discovery.
Angelo M. Codevilla, is a Senior Fellow of the Claremont Institute and professor emeritus of International Relations at Boston University. He was a Foreign Service officer and served on the staff of the U.S. Senate Intelligence Committee between 1977 and 1985.
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