The FISA Memo Fiasco Is Helping Normalize Surveillance Abuse

The FISA Memo Fiasco Is Helping Normalize Surveillance Abuse

In their fight over Donald Trump, partisans are excusing abuses against American citizens.
David Harsanyi
By

At some point in the middle of 2019, as the presidential race comes into clearer focus, the Republican National Committee’s lawyers approach James O’Keefe of Project Veritas and hire him to pull together opposition research on Democratic Party nominee Joe Biden. O’Keefe, unable to track down some of the scandalous rumors he’s heard about Biden’s behavior on his visits to Russia, decides to subcontract a former Mossad agent to help gather that information.

When the Mossad agent’s investigation ends, Project Veritas takes the raw opposition research they’ve amassed, which they surely know is largely fictitious, and attempts to sell it to the media. That’s their job. Journalists investigate the allegations, hoping to verify the only bits that matter. That’s their job. They can’t. Later, Breitbart, ignoring basic standards of journalism, drops the entire file on the public to fuel rumors about Biden.

What isn’t good enough for any reputable journalistic outfit turns out to be useful for the FBI. The Mossad agent approaches some friendly faces in the agency with the information paid for by the RNC and tells the FBI he is providing the files because he wants to stop Biden, who will undoubtedly move the embassy from Jerusalem and once again fund Iranian radicals.

Now, simply because a partisan is the source of a tip doesn’t necessarily mean the tip isn’t valuable. One of the beneficial aspects of partisanship, in fact, is that it often keeps the other side honest. Yet before ever verifying the information themselves, allies of Donald Trump within the FBI take this batch of stories — stories that CNN and NBC and other Biden haters wouldn’t even publish; rumors paid for by the RNC and put together by a person openly hostile to the candidate — and use it to help propel an investigation into their political opponent.

Trump’s FBI does this by renewing a FISA warrant targeting a shady character who’s loosely associated with Biden as their way into the campaign. Not only do they use the info from the former Mossad agent, they use an article to bolster their case that the Mossad agent fed to a journalist.

While the target of the investigation is so obviously into no good, the FBI still has to use the RNC files in its affidavit. While the target is so obviously shady, the warrant still fails to mention the evidence provided to the court is in parts “salacious” and “unverified.” While the case for the warrant is such a no-brainer, it only features a single footnote to inform the judge that “essential” information of the case is from a partisan source. The case against this shady individual is such a slam dunk that the FBI director admits to a Senate committee that no surveillance warrant would have even been sought from the Foreign Intelligence Surveillance Court without these files.

Whatever the case, the warrant turns out to be useful, because it allows the Trump administration to retroactively spy on Biden associates and look at all his communications and unmask others close to the campaign, then drop politicized, out-of-context leaks regarding the investigation to the media.

When Democrats learn of and protest these actions, the Republican-nominated heads of intelligence agencies tell them it’s all fine, and no one should ever question the good men and women in the FBI because to do so is unpatriotic.

According to Democrats, many NeverTrumpers, and some libertarians, many of whom have a newfound respect for law enforcement agencies, the above scenario is just fine.

No, we don’t know if the assertions of the Rep. Devin Nunes memo are all true, and maybe it’s all a big fabulist conspiracy theory. I’m open to that possibility. But the problem is that the scenario I lay out above, the one that mirrors the memo, has already been dismissed on its own terms as a big nothingburger.

Now, some of the rationalization for belittling or completely dismissing the memo’s claims without any investigation hinges on a number of risible ideas. The first and most obvious, one imbued in every “lolz” by Beltway types who are petrified of ever being seen as Trump normalizers, is that the president is so terrible anything goes. Unless they believe my alternative scenario is okay, they’re saying we have different sets of standards for different Americans.

Others dismiss the allegations by pointing out that Republicans, specifically Nunes, are a bunch of hypocrites and partisans and everything they say is tainted. It’s true. Nunes, who once called libertarian Rep. Justin Amash “al-Qaeda’s best friend in Congress” for pushing on FISA warrants, is a hypocrite. Nunes knew about this supposed abuse of FISA even as he voted to reauthorize Section 702 for six years. Nunes is no better than Ron Wyden or Jerrold Nadler or anyone who was out there worried about FISA until six months ago when that became inconvenient.

It’s curious, though, that the same people who contend that the FBI is well within their rights to use unverified intelligence provided by partisan sources in an investigation also argue that Nunes’ memo should be summarily dismissed because he too is a partisan.

Another, but more authoritarian-tinged argument, contends that people who have no experience with FISA warrants or intel or lawyering really have no place complaining about enforcement tactics. Mere dairy farmers, even those elected by constituents and put in positions of oversight by the majority of the legislative branch, have no place asking questions, say self-styled defenders of democratic norms.

Others claim that we shouldn’t ever question the motives of our fine law enforcement agencies, or that questioning the motives of those in charge is tantamount to accusing the entire bureau of corruption. The media doesn’t do intelligence agencies any favors by pulling in the likes of former director of national intelligence James Clapper, who lied to the American people about domestic spying, or former director of the CIA John Brennan, who lied under oath about spying on U.S. Senate staffers, to make the case on the Sunday morning interviews.

It’s understandable that most people see this entire fiasco through a political prism. The singular concern of both sides of this debate seems to be whether Deputy Attorney General Rod Rosenstein and thus special counsel Robert Mueller will be removed from the Trump investigation. Those apprehensions are genuine, but, and I know this is difficult to imagine, there are also tangential issues that do not solely revolve around the president.

Some of us have long argued that there hasn’t been enough oversight over intelligence agencies’ habit of spying on Americans. The intelligence community was imbued with a tremendous power to be used in purportedly narrow and specific circumstances in an effort to keep Americans safe. If my alternative scenario is indeed legal and perfectly above-board, as so many lawyers assure me, then it’s clear that the state can spy on anyone for about any reason they can conceive.

The precedent here allows political parties to pull together “dossiers,” and, if they happen to benefit from a political friendly FBI or even a sloppy FBI, they can use it to convince judges to rubberstamp spying. If not, someone has to explain to me — beyond lecturing me on about the sanctified FBI or the nefarious Donald Trump or the ham-fisted Nunes — why my alternative scenario would be a problem.

David Harsanyi is a Senior Editor at The Federalist. He is the author of the forthcoming book, First Freedom: A Ride Through America's Enduring History with the Gun, From the Revolution to Today. Follow him on Twitter.

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