Robert Mueller’s investigation into Russian interference has polarized the surveillance debate along unpredictable lines. On the one side, Trump and his defenders decry the Mueller probe as a “witch hunt” concocted by intelligence community liberals to derail his presidency. On the other, Trump’s progressive critics defend the institutions of the surveillance state—embracing the FBI, the NSA, and the Foreign Intelligence Surveillance Court as unblemished defenders of American democracy.
The treatment of surveillance oversight as a political football is not an altogether new phenomenon. Usually, however, it’s the opposition party that criticizes the surveillance powers invested in the executive branch; not the other way around. It’s a particular oddity of our odd era that we find Democrats defending the unfettered power of Trump’s own spy agencies, while Republicans in the White House decry the “deep state.”
What neither of these camps appear interested in doing, however, is having a frank discussion about the proper limits of surveillance. If Republicans really believe the FISA process is vulnerable to partisan manipulation, why not support reforms to improve oversight of that process? And likewise, if Democrats believe Trump is a dangerous demagogue, why blindly trust the very agencies with which he could do the most damage?
The partisan fracture in Washington over surveillance oversight has split wide open over the past few weeks. On Wednesday, March 28, the Justice Department announced that its inspector general will be looking into the FBI’s surveillance of Carter Page, an oil and gas analyst who worked for the Trump campaign. The review was triggered by a memo released in February by Devin Nunes, the chairman of the House Permanent Select Committee on Intelligence. Nunes says the surveillance of Page is evidence of politically motivated abuse. In a rebuttal memo, Democrats defend the surveillance.
The result of the dueling memos was embarrassment for Nunes. The central claim of the Nunes memo was that government lawyers had misled the Foreign Intelligence Surveillance Court about the bias of an important source: Christopher Steele, a former British spy hired by the Democrats to get information about Trump’s Russia connections. In fact, the filing had specifically warned the judges that the FBI believed its source had a political motivation.
A recurring complaint about the intelligence committees is that they place blind trust in the agencies they oversee. The remedy for blind trust, however, is not blind mistrust: it is healthy skepticism and support for surveillance reform. In the Atlantic, Amy Zegart argues that Nunes has invented something even worse than “fake news”—“fake oversight.” According to Zegart, Nunes had abused his oversight power to create a “swirl of doubt” about the good faith of intelligence officials, with results that are “toxic to the democratic process and dangerous to national security.”
Three critics of President Trump—Norm Eisen, Larry Tribe, and Caroline Frederickson—have even suggested that Nunes’s oversight constitutes a “conspiracy to obstruct justice.” Eisen is a Brookings Institution scholar and a leading advocate of ethics in government; Tribe is a legendary scholar of constitutional law; and Frederickson was a director of the Washington office of the American Civil Liberties Union when I worked there. The world has clearly gone gone upside down when celebrated civil libertarians like Eisen, Tribe, and Frederickson suggest that the head of the committee Congress has established to question the intelligence agencies should be jailed for, well, questioning the intelligence agencies.
Former FBI special agent Asha Rangappa argues that liberals have only themselves to blame for the president’s “witch hunt” narrative. It was progressives, she says, who “laid the groundwork for the Nunes memo” with their unfair attacks on the system for approving surveillance warrants for those suspected of collusion with foreign governments.
According to Rangappa, progressives had dismissed the Foreign Intelligence Surveillance Court as nothing more than a “rubber stump”—not just because the FISA system was flawed, but because government officials couldn’t be trusted. Liberal critics had convinced the broader public that FBI agents “routinely lie to the court and that judges can’t be trusted to do their job.” Was it any surprise when Trump picked up the narrative and ran with it?
Blaming progressives for the Nunes memo—and, by extension, for the whole “deep state” attack on the Russia investigation—completely misunderstands the civil libertarian critique of the surveillance state. I agree that progressives have sometimes unfairly characterized the FISA court. It is no rubber stamp: the judges take their role quite seriously. Yet the progressive critique of the FISA court—and of surveillance oversight more generally—has been structural, not personal.
In 2013, Edward Snowden revealed programs of mass surveillance by the NSA, sparking a global conversation about privacy. Snowden and his supporters certainly used some heated rhetoric about a mass surveillance state. Still, the main goal of civil libertarians has been to fix a broken surveillance system, not to undermine legitimate intelligence gathering on foreign threats.
Among other proposals, progressives pushed President Obama for a special advocate for privacy in the FISA system. Obama agreed, saying he thought government lawyers should be “challenged by an adversary.” A special advocate could have asked tough questions about the Page warrant application, including its reliance on the Steele dossier.
Congress passed a version of the special advocate proposal in the USA FREEDOM Act of 2015, reforming government surveillance. Despite this, the FISA court appears to have heard only from the government in the Page case. The reason is because conservatives succeeded in weakening this reform.
During the debate on the Freedom Act, Judge John D. Bates—who had previously served as the chief judge of the Foreign Intelligence Surveillance Court—strongly objected to an adversarial process. The conservative judge, writing on behalf of the judiciary, wrote that an advocate would be counterproductive “in the vast majority of FISA matters.” Bates said there was no need for an advocate for cases that involve the application of probable cause to “case-specific facts.”
Congress modified the special advocate proposal to meet these objections. Under the compromise, outside lawyers are appointed only if, “in the opinion of the court,” there is a “novel or significant” legal question presented. As the Carter Page warrant application appears to have been a pretty straightforward application of probable cause to particular facts, it would not have been a good candidate for an outside lawyer.
If Devin Nunes and other Trump supporters truly believe there has been abuse, they would offer ideas for strengthening the special advocate and other surveillance reforms, not personal attacks on intelligence officials and other public servants. I’m not holding my breath. At least so far, it appears that Nunes’s wild charges are nothing more than a cynical ploy to distract public attention from the Russia investigation.
If conservatives want an honest and thorough conversation about the vulnerability of the FISA process to political manipulation, let’s have it. I welcome Nunes and company to throw their support behind reforms—like a strengthened special advocate position—which would mitigate such abuses in the future. Indeed, if they’re sincere in their criticisms, failing to do so is an abdication of their oversight role.
The purpose of government oversight of the intelligence community is not the shielding of any particular individual from undue scrutiny, but the protection of every potential target’s civil liberties.