Special counsel Robert Mueller's report on the lack of collusion between the Trump campaign and Russia has revealed an urgent need to rein in the highly secretive Foreign Intelligence Surveillance Act court.
The FISA court typically operates in the shadows, though it occasionally surfaces in the news when it becomes entangled in political issues, such as the debate over government surveillance in the wake of Sept. 11, or when it authorizes spying on a presidential campaign organization, as it did with regard to the Trump campaign.
The FISA court issues secret warrants permitting the government to spy on individuals suspected of working with a foreign government against the interests of the United States, and operates out of a secure, bunker-like complex where government officials decide whether to spy on phone calls, emails, and text messages. There’s no jury, there are no attorneys, and there’s no defense or opposing view.
The information gathered from such surveillance, however, isn't just collected from the primary target — it also includes anyone in communication with that individual. According to a 2014 Washington Post report, 90 percent of people whose communications were collected under warrants granted by the FISA court were not the intended targets. Nearly half of the surveillance files contained names, email addresses, or other details the NSA marked as belonging to U.S. citizens or residents.
To make things worse, in this courtroom the executive branch almost always wins.
Between 1979 and 2012, the first 33 years of the FISA court’s existence, federal agencies submitted 33,900 applications. FISA court judges denied only 11 while rubber-stamping the rest — a 99.97 percent rate of approval.
This level of unanimity is dangerous in any branch of government, but it’s especially frightening in a body with such sweeping, autonomous powers and minimal oversight. Conservatives in Congress, such as Sen. Rand Paul, R-Ky., have been warning about the dangers of FISA overreach for years, but their concerns were consistently waved off.
The abuse and overt lack of due process of the FISA court by biased officials at the FBI, however, is giving new credence to the arguments raised by FISA critics.
In 2016, a sitting administration used the vast, unchecked powers of the FISA court to spy on an incoming administration, and it did so by concealing the true origins of the so-called Steele dossier, which was paid for in part by the Hillary Clinton campaign.
One of the people responsible for this gross manipulation of the FISA court, former FBI attorney Lisa Page, was also involved in now-notorious discussions about an “insurance policy” in case Trump won the 2016 election. Their deception allowed disgraced former FBI agent Peter Strzok to spy on the Trump campaign despite his vocal animosity toward Trump. It was Strzok who once said, “There’s no way he gets elected — but I’m afraid we can’t take that risk,” and, “Just went to a southern Virginia Walmart. I could SMELL the Trump support.”
From an ethical standpoint, none of those people should have been allowed anywhere near a FISA application. But because of a broadly written law with virtually no checks and balances, there was nothing to stop them.
People in power have long turned a blind eye to the dangers posed by the FISA court, reasoning that ordinary people who have nothing to hide must have no reason to fear the government tracking their phone calls.
That theory seemed to be holding up well for a long time. But as soon as Trump became a viable candidate for president, bureaucrats at the Department of Justice and the FBI demonstrated that FISA courts are an extremely potent weapon even against targets that are completely innocent.
What happened in 2016 should never be allowed to happen to anyone, let alone a presidential candidate trying to knock the party in power out of office. Shadowy FISA courts need transparency and reform to make sure what happened to the Trump campaign never happens again.
Jenna Ellis (@realJennaEllis) is a member of the Trump 2020 advisory board. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.