Why Renew the “Ultra Secret” Foreign Intelligence Surveillance Act (FISA) Court? 

Renee Parsons

Despite protestations by judges and apologists, the FISA court is scarcely more than a rubber stamp for government intrusions.

Why Renew the (FISA) Court? 

[dropcap]O[/dropcap]n March 15^th, the Patriot Act will expire unless it is reauthorized by Congress. As if it had been patiently waiting in the wings, the Patriot Act was adopted in October 2, 2001, 21 days after the 911 attacks, revealing a curious foreknowledge of what occurred  three weeks earlier.

The Act set the stage for the next two decades of unfettered, expanded surveillance of the American people – under the guise of ‘national security.’  

After 2001, the Act was amended to include the FISA (Foreign Intelligence Surveillance Act) Court (FISC) which authorized the gathering of foreign ‘intelligence’ with the Court approving ‘warrant’ applications for the unrestricted collection of information.

It should not have taken the 2016 Russiagate/FBI disgrace to confirm that after decades of government surveillance, warrantless or not, that 24-7 secret spying on Americans is unconstitutional and incompatible within a free and democratic society, nor is it necessary.   

After the 911 attacks, the FISA Court prospered with an increased bureaucracy to handle the expanded caseload.   As the American Empire spread fear and paranoia with a belligerent foreign policy, the US portrayed itself in constant jeopardy from external forces and that, at all costs, the ‘homeland’ must be protected from evil doers.   If in fact the US govrnment wanted to shut down the ‘terrorist threat’, they could do so in short order.  There is no terrorist organization stronger than the US military.

We now know that there are evildoers within our own borders and within our own government who have no interest in protecting the jewels that were once valued American ideals: freedom and justice for all.

FISA Court

In 1978, the Court began with seven US District Court Judges from diverse geographic areas to serve seven year terms. Today, there are eleven Judges who serve on a weekly rotation with each conducting at least four annual one-week  stints. Nominated by President Barack Obama and then individually selected by Chief Justice John Roberts, their appointments are subject to no public oversight or scrutiny.  As of 2020 each District Judge receives a salary of $216,000 with an added bonus for their FISA service.

Referred to by CNN as the “most powerful Court you have never heard of”, it is housed in a SCIF-like bunker at an undisclosed location between the WH and the Capitol.  The list of FISA Judges is public but details of their interactions remain obscure and closely guarded.  Yet thanks to the FBI Russiagate scandal, the focus on the Court has intensified with revelations that do not inspire confidence in an independent judicial experience.

Since the workings of the Court are ultra-secret, a Judicial Watch FOIA discovered that no hearings were held on all four of the FBI warrant requests on the Russiagate investigation, all of which were proven  to be factually flawed,  In other words, the Court does not verify the alleged facts on any application which questions whether the Court ever holds hearings on any warrant application or whether the Court routinely acquiesces to the FBI and is literally a rubber-stamp.  

As renewal of the Court comes before a moribund Congress, the question arises whether the Court serves any useful purpose with a history of carte blanche approvals of almost every application for surveillance that has ever been submitted.  The statistics do not support the pretense that there is a democratic entity performing a patriotic public service protecting the American population.  Note the examples of 2016 and 2017 with increased rejections:

The most obvious reason for FISA renewal is to hoodwink the American public into ‘feeling’ safe while allowing intel agency tentacles to deepen its creep into American society.

FISA Court Judges

Let’s begin with then presiding Chief Judge Rosemary Collyer.  Ten days after publications of the IG Report, Collyer issued a rare Order that belatedly ‘rebuked’ the FBI for providing ‘unsupported or contradicted’  information to the Court while withholding exculpatory information detrimental to the FBI’s case.  While the Order citing FBI ‘misconduct’ was little more than a bureaucratic put down, the Order went no further than requiring the FBI to provide assurance of how it will improve its processes in the future.  Three days later, Collyer resigned as Presiding Judge as she chose to remain a Judge on the Court until her term expires in March.

It is noteworthy that Collyer should have found none of the abuses outlined in the IG Report startling since Rep. Devin Nunes, then Chair of the House Intel Committee, alerted her to potential FBI/DOJ abuses in a February 7 2018 classified memo to the Court.

In a follow up June 13^th memo, Nunes reiterated his earlier memo  including a classified summary of specifics that the IG Report would repeat almost two years later.  Given Nunes’ oversight function as Committee Chair with jurisdiction  over the FISA Court, he requested that Collyer initiate a ‘thorough investigation’ into his allegations. Collyer’s response was a stonewall of condescension and dismissal as if Nunes had no legal authority to provide oversight on the Court’s conduct.

The four page memo was ultimately approved for public release by the White House and Committee majority despite Democratic protests.   Meanwhile, the Senate Intel Committee, chaired by Sen. Richard Burr (R-NC) has ceded committee authority to Sen. Mark Warner (D-Va) as the silence has been deafening.

With minimum information available about the Court’s inner workings, the presence of US District Court Judge Rudolph Contreras has drawn attention to his relationship with former FBI counterespionage chief Peter Strzok.  In a July 25, 2016 email with FBI lawyer Lisa Page including discussion about setting up a cocktail party:

Page: “Rudy in on the FISC. Did you know that? Just appointed two months ago.“  Strzok:  “I did. We talked about it before and after. I need to get together with him.”

In addition, it has come to light that Contreras, acting in his capacity as US District Court Judge for the District of Columbia was assigned to the criminal case of Gen. Michael Flynn.  On December 1, 2018 Contreras accepted Flynn’s original guilty plea per an agreement with the Mueller investigation.   With Flynn expecting to be sentenced on December 7^th, instead the US District Court announced that Contreras “has been  recused” from the  case offering no explanation.  Former US Attorney Joe diGenova speculates, with his ear to the ground, that Contreras may have also signed the legallydefective FBI warrants thus creating a mammoth conflict of interest in light of his relationship with Strzok. 

There is no dispute that the Flynn prosecution was the result of an ‘ambush interview’ created by Strzok, deputy FBI Director Andrew McCabe and others.

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U.S. District Judge Royce C. Lamberth, who served as FISA’s Chief Judge from 1995 through 2002  lamented that he “..struggled with the perception for years that we did whatever the government wanted and were rubber stamps,” A review of the Court’s  33 year history shows that during Judge Lamberth’s time as Chief Judge only one FISA application denial.

The aforementioned examples of judicial malfeasance or simply crass indifference are unacceptable on the part of FISA judges responsible for Constitutional decisions affecting the lives, liberty and freedom of all American citizens.  The fact is that the FISA Court’s secrecy encourages a climate of cutting corners, inferior work quality and contempt for public exposure.

In addition, the Court’s existence  is irrelevant since the “terrorist threat” is little more than a paper tiger.  If the US cut off the flow of weapons, the ‘terrorists’ would be out of business but it is to the Government’s advantage to maintain its surveillance grip on the gullible American population.

Part 2

As a mid March deadline approaches, the mad scramble is on for Congress to rubber stamp a ‘clean’ renewal of the Foreign Intelligence Surveillance Act (FISC) without amendment. At every opportunity since 2001, Congress has used the re-authorization process to expand both the Patriot Act and the FISA Court’s authority in a further erosion of American civil liberties. Over the years, Fourth Amendment protections have been eviscerated allowing government access into every nook and cranny of American life.

Those expansions of authority with bipartisan Congressional support who claim to value liberty and freedom except when it comes to conducting widespread surveillance of Americans.The Court has functioned unscathed as the Dems historically split 50-50 in their support for civil liberty and surveillance votes while almost 100% of Republicans have supported the mass surveillance of the American people under the illusion of a national security threat. It is worth noting that the US is the world’s leader in surveillance of its own citizens.

It might be expected that any politician who wraps themselves in the American flag would find US surveillance repugnant but that has not been the case as the House Freedom Caucus’s avid support for the Surveillance State has demonstrated.

The following are recent Congressional roll-call votes reauthorizing the FISA Court:

2008 Senate vote 32 – 66; House vote 293 – 129

2012 Senate vote 73 – 23; House vote 301-118

2018 Senate vote 65 – 34; House vote 256 – 164

Despite its original intent in 1978 to provide oversight into government surveillance on American citizens, the FISA Court has remained super secret and obscure from public awareness, resistant to meaningful Congressional oversight and largely immune from real accountability while unilateral in its authority. In other words, hands off the Court while the black-robed wizards labor in dark places about mysterious matters delving into the lives of anonymous Americans who remain unaware of the intrusion - and Congress has dutifully obeyed.

As a result of the IG Report on FISA Abuses revealing the FBI’s egregious misconduct and the Court’s unwillingness to protect its jurisdiction, there is a bit of groundswell in Congressdemanding ‘significant’ amendments to the Court’s authority. Whether that groundswell materializes or evaporates into obscurity, remains to be seen.

The question remains whether any amount of ‘reform’ can make the FISA Court acceptable from a Constitutional perspective or whether continued existence of the Court is necessary given its unabashed record of facilitating near-unanimous approvals to conduct surveillance, in other words, the Court is needed for the mindless approval of surveillance applications to create the false impression for a gullible public that there is an independent Constitutionally-valid process at work.

No matter what changes are made to the Court, the process approving surveillance will always be subservient to the political whim of the day. It is essential to recognize that automatic approvals are indicative of a judicial system complicit with a rigged law enforcement agency more committed to increased surveillance as a means to justify its existence as well as to assure budget and staff increases. The ease with which the Bureau manipulated the moribund Court (FISC) into approving flawed applications suggests that unless profound changes are made to the FBI/DOJ, the current crisis is doomed to repeat itself.

With the Russiagate fiasco and the IG Report on FISA leading to Spygate, an impeachment charge depending on a covert whistleblower of suspect intentions and origin, it might be expected that the upcoming Court re-authorization ought to, especially for House Republicans, be a subject of fierce debate who have learned first hand, in a way that the Dems did not, that surveillance is a nasty business fraught with unintended consequences.

While Attorney General Bill Barr favors a ‘clean’ renewal bill with reforms being enacted at the Department level, Sen Lindsay Graham (R-SC) who is more focused on his re-election, agrees to postpone any substantive changes to some future time. However, on the House side, it is an entirely different scenario with sleeping bi-partisan tigers finally awakened to the implications of how the FISA Court process does not serve the American people and how easily it can be manipulated.

Judiciary Committee member Rep. Zoe Lofgren (D-Calif) has five amendments to further strengthen ‘reforms’ to the Committee’s bill, all of which were rebuffed by Committee Chair Jerrold Nadler at the urging of House Speaker Nancy Pelosi and Intel Chair Adam Schiff (D-Calif). Scutlebutt says that the House Judiciary bill is more of a Schiff ‘wish list’ with watered down civil liberty tokens.

It is essential to recognize that government surveillance; that is, to secretly spy into another’s private life is never done with good intentions or with the innocence of a harmless outcome. As the American Empire struggles to survive, spying, in all its nefarious forms, is a gross violation of elementary principles of fairness and ethics in a moral, just and civil society. It is ironic that Americans, as the most surveilled people on the planet, also pay for their own surveillance through their tax dollars. .

ABOUT THE AUTHOR

Renee Parsons has been a member of the ACLU’s Florida State Board of Directors and President of the ACLU Treasure Coast Chapter. She has been an elected public official in Colorado, an environmental lobbyist with Friends of the Earth and staff member in the US House of Representatives in Washington, DC. Renee is also a student of the Quantum Field. She can be reached at #reneedove31. If you are willing and able to support Renee in her efforts to provide a different perspective on current events, you may do so through paypal.me/reneedoveparsons