Abolish FISA, Reform FBI, & Break Up CIA
How to defend the Republic against the Deep State.
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This is the first in The American Mind’s new Rethinking Policy series. Throughout 2020 we are publishing essays that boldly reframe, reorder, and reprioritize our political goals in order to directly address the real challenges of our time. These essays are intended to spur clear, sharp discussions that rid us of obsolete ideological frameworks and point towards viable paths forward. Amid today’s realignment, we must discern and articulate vital principles and national purpose free of the ideological encumbrances of the past. —Eds.
America’s Intelligence agencies are the deep state’s deepest part, and the most immediate threat to representative government. They are also not very good at what they are supposed to be doing. Protecting the Republic from them requires refocusing them on their proper jobs.
Intelligence officials abuse their positions to discredit opposition to the Democratic Party, of which they are part. Complicit with the media, they leverage the public’s mistaken faith in their superior knowledge, competence, and patriotism to vilify their domestic enemies from behind secrecy’s shield.
Pretenses of superior knowledge have always tempted the Administrative State’s officials to manipulate or override voters. Hence, as Justice Robert H. Jackson (who served as chief prosecutor of the Nuremberg trials) warned, they often turn their powers against whomever they dislike politically, socially, or personally and try to minimize the public’s access to the bases upon which they act.
But only the Intelligence agencies have the power to do that while claiming that scrutiny of their pretenses endangers national security. They have succeeded in restricting information about their misdeeds by “classifying” them under the Espionage Act of 1921. Thus covered, they misrepresent their opinions as knowledge and their preferences as logic. Thus acting as irresponsible arbiters of truth at the highest levels of American public life, they are the foremost jaws of the ruling class vise that is squeezing self-rule out of America.
As Senator Charles Schumer (D-NY) truly told President Trump, “Let me tell you, you take on the intelligence community, they have six ways from Sunday at getting back at you.” As we shall see, Intelligence officials have proved Schumer correct.
What follows begins with an overview of the threats today’s intelligence agencies pose to self-government in America.
Next, it touches on U.S. intelligence’s dismal professional record, and suggests that the measures needed to refocus them on professional performance would also separate them from domestic politics.
In sum, we find:
- CIA is obsolete. Cables show agents’ intelligence takes are inferior to diplomats’. Agent networks are unprotected by counterintelligence. FBI success at counterintelligence ended when the Bureau was politicized and bureaucratized in the 1970s. CIA bottlenecks and incompetently controls strategic intelligence, while the Army and Marines show demonstrable tactical superiority.
- As a result, CIA is ideologically partisan. Its strength is in leading or joining domestic campaigns to influence public opinion. FBI has followed suit.
- Senior intelligence officials were the key element in the war on Donald Trump’s candidacy and presidency. CIA used meetings that it manufactured as factual bases for lies about campaign advisors seeking Russian information to smear Hillary Clinton. Intelligence began formal investigation and surveillance without probable cause. Agents gained authorization to electronically surveil Trump and his campaign and defended their bureaucratic interests, sidelining Lieutenant General Michael Flynn and denying or delaying Trump appointments and security clearances.
- Partisanship produces failure. FISA has incentivized political abuse. “Profiling” has failed repeatedly in high-profile cases like the Atlanta Olympics bombing and the anthrax mail attacks. Perjury trapping has become commonplace.
Finally, we outline the steps that presidents and Congress might take to improve matters:
- FISA must be repealed legislatively or through Constitutional challenge in court. It unconstitutionally mingles judicial and executive power in secret. It gave Intelligence a blank check. Hardly “an indispensable tool” for national security, it is now indispensable for partisanship. Broad consensus exists for a legislative “fix,” but none is possible. The secret court’s existence, the heart of the law, allows partisan bureaucrats and allied judges to do what they want in secret.
- Functions currently performed by CIA should be sheared down. Data infrastructure and consultant networks should be eliminated. Bipartisan opposition to the Intelligence threat should use fierce resistance and lobbying from Intelligence as evidence of why cuts are in the national interest.
- CIA must be disestablished. Its functions should be returned to the Departments of State, Defense, and Treasury. FBI must be restricted to law enforcement. At home, the Agencies are partisan institutions illegitimately focused on setting national policy. Abroad, Agencies untied to specific operational concerns are inherently dangerous and low-value.
- Intelligence must return to its natural place as servant, not master, of government. Congress should amend the 1947 National Security Act. The President should broaden intelligence perspectives, including briefs from State, Defense, and Treasury, and abolish CIA’s “covert action.” State should be made responsible for political influence and the armed services for military and paramilitary affairs.
Sword and Shield
Roughly one third of the U.S government’s $80 billion annual budget for intelligence is devoted to the military’s “Intelligence-Related Activities.” These are technical programs to surveil military targets and connect the information to weapons. Generally speaking, their focus ensures their usefulness. Professional and political dysfunction, however, are rife in the other two thirds, the “National Intelligence Program.” This is our subject.
Intelligence is an instrument of conflict. It is knowledge (or pretense thereof) that can help one force or team at the expense of another. But the gathering and management of secret information naturally tempts those in charge of it to marshal truths or lies to hurt competitors within their own side as well. That is why prudent statesmen have curbed such temptations by subordinating Intelligence to government operations that deal with foreigners.
By nature, Intelligence is not independent. It is a function defined by the operations it serves. That is why wise statesmen have considered Intelligence agencies that are un-tied to specific operational concerns to be inherently dangerous, as well as not so useful in foreign and military affairs. When the U.S. established CIA as an agency responsible only to the president, it broke new ground. Nothing concerned the authors of the 1947 National Security Act that established it so much as preventing it from interfering in domestic matters.
Yet, ab initio, CIA’s founding generation concerned itself with making national policy, arguably more than with anything else, and transmitted that concern to its successors. Today’s meddling in elections and trying to overturn their results is a logical consequence.
Police Intelligence is analogous. Statesmen manage its temptations by keeping it focused on crimes defined by law. Until the 1960s, the FBI’s focus on investigating violations of statutes, and the “cop mentality” with which it dealt with national security issues, limited its interference in politics to gathering bits of dirt on politicians. By the 1970s, however, the FBI was joining CIA in supporting the causes and prejudices of its political homologues.
Today these Agencies’ naked threat to the president of the United States, conveyed by the opposition party’s leader, shows a power grab so big that, unless crushed, it puts them on the path trod by the Roman Empire’s Praetorian guard. Like the Roman Emperor’s supposed guardians, they claim to protect the City. But, as Attorney General William Barr noted, they have come to identify “the national interest with their own political preferences,” feeling that “anyone who has a different opinion” is somehow “an enemy of the state.” They now support their party in seizing power, “[convincing] themselves that what they’re doing is in the higher interest, the better good.”
In short, CIA and FBI have become instruments of partisan power.
None of this, of course, has anything to do with the natural, proper functions of Intelligence.
The Soviet Cheka (KGB), the Nazi Gestsapo, the Chinese Communists’ Intelligence service (which they called “the teeth of the dragon”) as well as their contemporary epigones, are not about knowledge—not even about discovering who the regime’s enemies are. They are weapons—what the Soviets called the Party’s “sword and shield,” made to hurt whomever the Party designates as enemies. Because the power to hurt people unaccountably is tyranny’s quintessential tool, competent tyrants limit such agencies’ powers by periodically purging them.
Power in America
Although a growing amount of the U.S. Intelligence agencies’ power comes from the kind of identification with the ruling party and class that is characteristic of totalitarian regimes—media, judiciary, etc.—in America it is ultimately founded on the public’s, especially the conservative sector thereof’s, acceptance of them as expert, impartial, brave public servants.
Changing that perception is prerequisite to any and all reform.
The U.S. Intelligence agencies’ record shows that they are the opposite: professionally incompetent and politically dysfunctional. That record’s exposure, demystifying Intelligence, would make it possible to return the Agencies to their natural, proper functions.
To firmly subordinate foreign Intelligence to military and diplomatic operations we must disestablish CIA and return its functions to the Departments of State, Defense, and Treasury. Since the FBI’s involvement in politics—and especially its justification thereof—also follows to some extent from its involvement in foreign affairs via anti-terrorism, re-establishing the distinction between Intelligence and law enforcement is essential. We must also repeal some of the laws and regulations that lately have empowered the Agencies’ misbehavior, notably the 1978 Foreign Intelligence Surveillance Act.
All this is now possible because, in recent years, the Agencies’ behavior has raised opposition on the political Right as well as on the Left.
CIA never did and never could fulfill the expectations placed on it.
Nothing could be farther from the truth than the supposition that its agents penetrate the world and have access to its secrets. 98% of CIA “case officers” are under “official cover,”—mostly pretending to be diplomats. Hence, they are known as collectors of information for the U.S. government, and are limited to the social circles of U.S. government employees. The other 2% pretend to be working for U.S. companies.
Studies of cables from CIA stations show that the persons these officers claim as “agents” are no such thing, and that their “take” is inferior in quality to that of U.S. diplomats. Most important, these so-called agent networks are not protected by anything that respectable professionals would call “counterintelligence,” i.e., quality control. So eager is CIA for anything that looks like agent information that it takes literally anything that looks like agent information and calls it good.
Often, what it gets is deadly disinformation. Consider: In December 2009, an “agent” walked into a meeting of CIA case officers and blew everyone to kingdom come. For the previous year and a half, CIA had relied on this agent’s information to order drone strikes killing God knows how many people whom he had falsely fingered as America’s enemies.
CIA’s analytical acumen is worse than carelessness. So much does CIA concentrate on spinning information to serve its own policy preferences that it cares little for accuracy. The higher up the chain any of its products go, the less fact and the more spin they contain. I once attended one of its top-secret, codeword-protected briefings on the Iran-Iraq war, in which the briefers referred to a map of the region which mis-labeled Iraq and Syria. As usual, the facts were window dressing for the spin.
CIA jealously guards its prerogative to well-nigh monopolize the flow of Intelligence to the president, Congress, and (via leaks) the public. It sets the subjects of and has the final word on single “national Intelligence estimates” (NIEs)—official versions of foreign realities. Seasoned observers can safely bet that these will come at a time and be written in a manner to bolster the Democratic party’s position on pending foreign policy questions. Reality be damned.
Between 1963 and 1978 annual NIEs on Soviet strategic forces stated that the Soviets would not try to match U.S. missiles’ numbers. When they matched them, the NIEs stated that they would not exceed them substantially. When they exceeded them substantially, the NIEs said that they would not equip them for counterforce warfare. When they so equipped them, the NIEs said that this did not matter.
As the U.S. government debated what to do about Iran’s nuclear program, CIA promulgated a special NIE that said that Iran had given up work on nuclear weapons. The team specially selected to write it were persons with a history of advocating leniency to Iran. Nor is this bias new: In 1950, CIA weighed in against General Douglas MacArthur on Korea policy both within the U.S. government and by supplying material for columns against his views by the New York Times’s James Reston.
The CIA’s bias is not mere incompetence. For more than a decade—during which, thanks to the treason of its own Aldrich Ames, the entire U.S. agent network in Moscow was under KGB control—CIA analysts still passed the “take” from that network to the president because, according to the Inspector General’s report, the analysts thought that the president should be acting as if these reports were true.
This is the same CIA that insisted for years that the GDP of East Germany—where whole families used to have to share a single tea bag and bananas were luxuries—was equal to that of West Germany, and that the Soviet Union’s ratio of military spending to GDP was the same as America’s. It was at least five times ours.
All of this is to say that, as regards strategic intelligence, CIA is usually worse than useless. For tactical intelligence, it is largely irrelevant. Intercepts of foreign communications are the one most useful source of tactical intelligence. NSA and the military do that. CIA often gets in the way of the military’s own needs for intelligence. Over the years, CIA has successfully lobbied Congress to prevent the military services from developing their own human collection networks, despite the fact that CIA’s own human assets are almost completely irrelevant to military needs.
Probably the only good result of the “war on terror” has been the Army’s and Marines’ forced resumption of responsibility for their own Intelligence, although restricted to the places where they must fight. The military services were always better equipped for human Intelligence because their officers—but especially their enlisted—are far more diverse racially, more versatile linguistically, and incomparably more accepting of personal risk than CIA’s case officers. The disparity is such that, in the early 2000s, CIA simply took over Army personnel, individually and as units, and used them for infiltrations of various kinds that its own people could not do and would not risk.
What, then, is CIA good for?
Its founding myth combines a historical falsehood with reference to technical circumstances that have not existed for at least a generation.
In 1947 and since, CIA’s advocates have argued that the surprise of Pearl Harbor happened because—although the information to indicate that Japan would attack Hawaii at 7am on December 7 existed in many pieces—no agency existed to put them together, to “connect the dots.” Had a place of central analysis existed, the disaster would have been avoided. Nonsense.
Our Navy had broken the Japanese diplomatic code and, from a succession of Tokyo’s messages to its Washington embassy, had concluded that the attack would happen in the place and at the time when it did. The Navy warned the White House and the War Department in time. But the latter’s warning to Pearl Harbor was sent by routine, and sat in Admiral Kimmel’s mailbox as the attack took place.
The truth that analysis of Intelligence must include a multiplicity of sources, and that a central repository of information is needed for that, was always the strongest argument for the existence of some sort of central facility where “all source analysis” could be done. But, since at least the 1980s, computers have made it possible and imperative for all analysts, regardless of their location, to access everything securely. Nowadays, ironically, CIA’s insistence on managing the access and distribution of information is the biggest barrier to universal, all-source Intelligence analysis.
Today, CIA is good for confidential meetings with the New York Times, the Washington Post, NBC News, etc., through which it joins—if it does not lead—campaigns to shape domestic American opinion.
What is the FBI good for?
Once upon a time, FBI foreign counterintelligence officers were cops first. Like all good cops, they knew the difference between the people on whose behalf they worked, and those who threaten them. They had graduated from places like Fordham, a Catholic, blue-collar university in the Bronx. Like T.V.’s Sergeant Joe Friday, they wore white shirts and said yes, sir, yes, ma’am. Unlike CIA case officers, FBI officers mixed with the kinds of people they investigated, and often went undercover themselves. The FBI jailed Capone and dismantled the Mafia. Because it used to take counterintelligence seriously, it was able to neutralize Soviet subversion in the USA. The old joke was that, in any meeting of the U.S. Communist Party or of its front groups, a majority of attendees were FBI agents. The only U.S. Intelligence penetration of the Kremlin was the FBI’s recruitment of a U.S. labor activist whom high-level Soviets trusted.
In the late 1970s, that began to change. Director William Webster (1978-87) refused to back up the officers who had infiltrated and surveilled the New Left’s collaboration with the Soviets against America in the Vietnam War. Webster also introduced contemporary political correctness into the FBI. Asked by the Senate Intelligence Committee why his FBI had neither infiltrated nor disrupted the Jim Jones cult that resulted in the deaths of 900 Americans in Jonestown, Guyana, he answered that he would no more have interfered with that religion than with the Catholic Church. Not incidentally, the Jim Jones cult was associated with the Democratic party.
Thus FBI officers became standard bureaucrats who learned to operate on the assumption that all Americans were equally likely as not to be proper targets of investigation. They replaced the distinctions by which they had previously operated with the classic bureaucratic imperative: look out for yourselves by making sure to please the powerful.
Webster’s FBI joined the ACLU as the principal sponsor of the 1978 Foreign Intelligence Surveillance Act (FISA), which judicially pre-cleared all electronic surveillance operations through ex parte secret proceedings, despite warnings that such pre-clearance amounts to warrants for warrantless surveillance, and hence that it incentivizes political abuse.
The directorships of William Sessions and Louis Freeh, ending in 2001, did nothing to slow the FBI’s evolution along these lines. Reliance on pseudo-scientific “profiling” vastly reduced the felt need for scruples.
Thus did the Bureau practically convict an innocent man, Richard Jewell, of having bombed the 1996 Atlanta Olympics.
From the beginning, the FBI’s “profiling” process concluded that no foreign government or entity had been responsible for the dispatch of letters from a post office near where the 9/11 hijackers had lived containing weapons-grade anthrax. Rather, they claimed the attacks that killed five and injured 17 Americans had been the work of a lone, white, conservative scientist.
Thus it pursued and nearly broke one Steven Hatfill, whose lawsuit the government subsequently settled for $5.8 million. The FBI then turned its attention to someone else who fit its profile, Bruce Edward Ivins, whom it never charged but whom it ruined and hounded into suicide. After which it declared him guilty, but refused to make public the evidence on which it had reached its conclusion. Classified, you know? No one was ever charged with the crime. This matter defined Robert Mueller’s (2001-13) directorship.
The Bureau’s increasing adoption of military weapons and tactics further tempted its officials to shortcut intelligence for the sake of, well, war against disfavored persons and movements. In 1992 the Bureau conducted an 11-day war against the Randy Weaver family in a remote Idaho cabin, in which one law enforcement officer was killed along with the Weavers’ 14-year-old son, and which ended with an FBI sniper killing Mrs. Weaver with baby in arms—and with an angry jury acquitting Weaver. A year later, the FBI ran another war against a religious cult in Texas that cost four lives.
And, oh yes, the FBI has protected America against such dangerous characters as Martha Stewart, Lewis Libby, and General Michael Flynn, by perfecting the technique of “perjury trapping” (accusing someone of perjury by contrasting the target’s recollections with someone else’s) whoever is foolish enough to speak with its Special Agents.
Thus did the FBI become the politically weaponized, domestic danger it is today.
The Intelligence agencies were the key element of the ruling class’s support of the Democratic Party in the 2016 election. Its senior officers, regarding themselves as guardians of their class’s right to rule, waged war on Trump’s candidacy.
There being no facts on which to base charges of Trump’s illegitimacy in office, the Agencies strove instead to create “predicates” for investigations, the very existence of which would substitute for facts and provide the bases for media accounts of Trump’s villainy. Since Trump was elected, the Agencies have been the indispensable element of the ruling class’s “resistance.” Through the media, they have defamed him using their hoary ploy: You must believe us because what we say is based on classified information. For that reason, your demand for corroboration threatens National Security.
CIA was first and foremost. Circa April 2016, it “vectored” some of its longstanding assets, including Stefan Halper in Britain and Joseph Mifsud in Italy, to approach low-level Trump advisers Carter Page and George Papadopoulos, respectively. Note: these agents were not seeking information. The meetings they initiated served as the factual bases for the outright lie that these advisers, and hence Trump, were involved in obtaining information from Russia to smear Hillary Clinton. This is the “narrative” that CIA conveyed to the media, whose renditions thereof would serve as a “predicate” (i.e. as a watered-down substitute for “probable cause) to begin a formal investigation that would lead to more stories and lend further public force to the “narrative”: Trump as a Russian agent.
That narrative having taken root in the media by the summer of 2016, the Agencies initiated a formal counterintelligence investigation of the Trump campaign, along with a criminal investigation of him. This involved authorization to conduct electronic surveillance of the campaign and of him. But by this time, Intelligence surveillance of Trump had already been going on for months under Sec. 702 of the 1978 Foreign Intelligence Surveillance Act. Using this legal vehicle, Trump had been the real target though the surveillance was aimed nominally at the Russians. This is what Admiral Mike Rogers, head of the National Security Agency, told the president-elect on November 16, 2016, that caused him to move his transition headquarters to his NJ golf club.
It is essential to note that well before Trump was elected the extensive surveillance to which his campaign had been subjected had proved to U.S. Intelligence that neither he nor his had ever dealt with the Russians in any way about the election. None of the subsequent “investigations” have unearthed anything that the Agencies did not already know months before November 2016. Nevertheless, these “investigations,” based on the “narrative” that Trump had colluded, continued. They were not discovering facts. They were providing pretexts for accusations.
The supposition that the evidence exists in classified form remains the official excuse for the ruling class’s “resistance” to the Trump administration, and a feature of the Democrats’ impeachment of him. Obviously, such “investigations” by “Intelligence” are about acting as the “sword and shield” of the ruling party and of the class it represents by spreading political lies.
The Intelligence agencies’ bureaucratic/corporate interests also contributed to their war on Trump.
Trump’s primary foreign policy adviser during the campaign, Lieutenant General Michael Flynn, had been director of the Defense Intelligence Agency. Like other directors of DIA, he had developed antipathy for CIA, and supported plans for removing it from its paramount role in the Intelligence Community. As Trump’s prospective National Security adviser, he would have implemented those ideas. Flynn was also privy to the details of the Obama administration’s clandestine activities in Libya that had led to the embarrassing destruction of the U.S. mission there with the loss of four American lives.
Whatever damage could be done to Trump’s election prospects or eventual legitimacy, “getting” Flynn was a priority unto itself. On November 10, 2016, in a highly unusual act of interference with a successor, and almost certainly at CIA Director John Brennan’s suggestion, Obama warned Trump against hiring Flynn. On January 24, just after the inauguration, FBI agents interviewed Flynn about a wholly legitimate conversation with the Russian ambassador and, with the transcripts of the intercepts thereof in hand, led him into recollections of that conversation inconsistent with the transcript—on the basis of which he was charged with lying to a federal investigator, ruined financially, and forced to plead guilty to save his son from indictment.
The intelligence agencies’ hostility, and the black eye of Flynn’ s indictment, impacted the first round of Trump’s personnel choices and forced him to look over his shoulder.
No sooner had Trump begun appointing officials than the CIA began to effectively veto his choices by denying them security clearances—in the prototypical January 2017 case of NSC official Michael Townley, because he had been critical of the Agency. The FBI slow-walked investigations for security clearances.
No one disputes that any President has plenary authority to grant and remove clearances. But Trump chose to defer to the Agencies. Trump also deferred to the Agencies with regard to what documents are or are not legitimately classified, giving them free rein to “leak” their versions thereof to the news media and to retreat behind security classification’s shield.
Presidential policies are only words, unless implemented by people committed to them. But as a result of this deference to his enemies, three years into the Trump administration only a fourth of presidential positions have been filled and Trump hops on one leg instead of running on four. At this rate, the Trump administration is sure to end without ever really having existed—which is the idea.
In sum, it is difficult to overstate the effect of the intelligence agencies’ participation in the “resistance.” Why Trump has suffered their behavior is irrelevant.
FISA and Official Secrets
The 1978 Foreign Intelligence Surveillance Act is not least among the incentives that have contributed to the U.S. Intelligence agencies’ professional and political dysfunction. One of the unintended consequences of secret judicial imprimaturs on investigations is that the FISA courts confer the status of official secrets on the results. At the same time, the U.S. government has been claiming that the Espionage Act demands that classified information be afforded something like the deference mandated by Britain’s Official Secrets Act. All this has empowered and emboldened bureaucrats.
By the late 1970s the intelligence bureaucracies—CIA, FBI, NSA—had become leery of conducting any electronic surveillance, even of Soviet Bloc embassies and persons, because some American leftists who had worked with said embassies against the U.S. in the Vietnam war had filed lawsuits against prominent individuals in these bureaucracies. Hence the agents clamored for judicial warrants to protect them from lawsuits in national security cases in the same way they are protected in cases of wiretaps for domestic criminal purposes.
Trouble was—and is—that to ask a judge for a warrant in any ordinary court is eventually to reveal the surveillance to the objects thereof. The bureaucracies asked Congress to square the circle by establishing a court to rule ex parte, secretly. But FISA, by providing judicial pre-authorization for many of our national security bureaucracies’ actions, is perverting the American legal system and fostering a secret body of common law hostile to civil liberties.
Prior to FISA, the intelligence bureaucracies’ actions, although unquestionable a priori because undertaken secretly, could always be questioned openly and thoroughly ex post facto. Once FISA became law however, the defense that any given act was good because it was lawful made substantive questioning far more difficult. It is also more difficult because the information’s classified status now enjoys judicial approval.
In 1978, the American Bar Association invited me to debate the issue with 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 agreed, but pointed out that the president, i.e., the bureaucracies, had agreed to support 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 would be problematic: although strictly speaking the court could confer only a procedural imprimatur, in practice that imprimatur would shield the bureaucracies—and the President—from having to defend the substantive value, and the propriety, of any act of surveillance.
I also pointed out that ex parte secrecy had been the defining feature of England’s infamous “Star Chamber”—the very negation of Anglo-Saxon due process. Scalia agreed, but pointed out that the FISA court’s jurisdiction would be very limited. I countered that Congress could expand that foreign body, and that it would expand in practice. Scalia said that we were debating only the law then proposed, as indeed we were.
But the law’s logic asserted itself. Already in the 1980s the Intelligence Committees were receiving requests to place authorization for FBI infiltration of domestic groups “of national security interest” within the FISA system. In 2001 Congress and the President enacted section 702, which effectively authorizes all manner of warrantless surveillance of Americans so long as it is excused as “incidental” to collection on foreigners.
FISA became law because the Intelligence Agencies’ (primarily FBI’s) concerns dovetailed with those of the sincere ACLU-variety liberals of that time. The liberals then believed that involving the judiciary in decisions to wiretap foreigners, and drafting guidelines severely to limit the retention and use of data collected incidentally about “U.S. persons,” would gradually extend the Fourth Amendment’s standards of “probable cause” plus warrants to foreign Intelligence. At the time, I warned fellow Senate staffer John Elliff and other liberal drafters agonizing over the rules’ minutiae that their words were not housebreaking Intelligence, but rather giving bureaucrats the means of covering political surveillance with a cloak of pretend legality—providing them with temptations they eventually could not resist. They were legalizing Watergate.
Watergate, recall, was an attempt by two of President Nixon’s staffers to gather information about the opposition party’s 1972 presidential campaign. That anyone connected with the U.S. government should use government resources to disadvantage a political opponent was scandalous. Barriers to investigating it were judged just as scandalous, and all involved in Watergate were punished severely.
As noted above, U.S. government Intelligence began electronic surveillance of Trump as soon as it became possible that he would be the Republican nominee. In the spring of 2016 it also infiltrated his campaign with its agents and instituted investigations—counterintelligence and criminal—soon thereafter. This was Watergate on a massive scale.
By October, the surveillance and investigations had turned up nothing that substantiated the notorious “Steele Dossier” that the media had been touting since summer. Never mind the charges that Trump was beholden to Russia—they failed to turn up anything that would derail Trump upon release. Hence, when it began to seem possible that Trump might win, the bureaucrats who had ordered the surveillance and investigations faced the possibility of having to explain by what right they had done it.
FISA was available for legal cover. In a nutshell: they re-packaged the Steele Dossier on which the public charges had been based and presented it to the FISA court, nominally to get a warrant for surveillance of low-level Trump adviser Carter Page and the rest of the campaign. They did this in late October—far too close to the election to obtain any information useful in that regard. The Agencies having surveiled Trump for seven months, the warrant served neither the gathering of information nor any offensive purpose.
Instead, through the Carter Page warrant, the FBI got the Court to warrant, by political implication, the surveillance that had begun in April under Section 702, as well as the counterintelligence/criminal investigation (initiated formally on July 31, but actually begun in April). FBI officials were able to do this because at least some of the federal judges who staff the FISA Court had become part of the same political party.
In 1972 nobody had to ask whether or not the president’s men who burglarized the DNC suite at the Watergate Hotel were committing the (only in America) high political crime of using government power against the opposition candidate. The only question was “what did the president know, and when did he know it?” Nor were there any legal obstacles to obtaining any documents or testimony regarding who had done what. Since a crime was involved, the courts struck down the president’s claim of executive privilege.
But in 2016, when the president’s men used the full power of the FBI and CIA to surveil and defeat the opposition candidate and then to de-legitimize the election’s winner, they were confident knowing they had acted with the FISA Court’s imprimatur, and that the bureaucratic machine—Inspectors General, etc.—would agree that that their request to the Court had been properly “predicated.” They turned out to be correct.
Since early 2017, as first a trickle and then a flood of evidence has become public that all four of the FISA court’s approvals of surveillance warrants were based essentially on political lies, no judge has hauled in any bureaucrat to face comeuppance for contempt of court. Nor have any judges complained of having been fooled. Only in 2020, after the Justice Department officially informed the FISA Court that at least two of the warrants it had issued were based on fraudulent presentations, did the Court acknowledge that these warrants had been issued invalidly.
Moreover, since the bureaucrats’ submissions to the Court were classified, the CIA, FBI, and Justice Department bureaucracies refused even Congress’s and the new president’s demands to see them, unredacted. Classified, you know?
But why give implicit respect to claims of classification?
Under the Espionage Act, Federal officers can classify the information they generate as “confidential” if, according to their judgment, its publication would “harm” the United States; as “secret” if they think the harm would be “serious”; and as “top secret” if they judges the prospective harm “especially serious.” Classification being merely the classifier’s opinion, publication or release of classified information is not a crime in America, unless it can be shown that it was harmful, and that the person either knew it would do harm or acted recklessly.
But now, because of ruling class solidarity and bureaucratic self-interest, a classified stamp increasingly endows documents with the status of Official Secrets, and the documents’ possessor with the authority to withhold them – while briefing the press on his version of them with impunity.
In sum, FISA’s judicial involvement in national security affairs made Watergate-type operations into lawful tools of government power. But also, by the logic of power and class solidarity, it has contributed to making the protection of security into a system that allows the well-connected to make accusations anonymously while making it impossible for those accused to fully defend themselves on substance. FISA has helped make National Security secrecy the last refuge of scoundrels.
Americans, ruling class included, share an interest in removing the Intelligence Agencies from domestic politics and refocusing them on their natural functions. Yes, they have served, and are serving now as the ruling class’s sword and shield. Yet this class’s members know that Praetorians’ natural tendency is to govern on their own account. Knowledge of Intelligence’s power to arbitrate intra-ruling class struggles is the reason why Stalin purged and killed KGB chief Nikolai Yezhov and Khrushchev did the same to Lavrentiy Beria, why Mao did it to Kang Sheng, and why Fidel Castro executed General Arnaldo Ochoa Sánchez on trumped-up charges.
Without switching allegiances, the Sword and Shield’s handlers can ruin their patrons merely by taking sides in their internecine quarrels. In fact, the U.S. Agencies’ outsized impact on the 2016 election and aftermath began when someone hacked into the DNC’s e-mails, the publication of which showcased that the Party hierarchy had taken Hillary Clinton’s side against insurgent Bernie Sanders. The FBI, by not pressing an investigation into who had done the hacking while espousing the baseless narrative that “the Russians” had done it to help Trump, helped avert intra-Democrat bloodletting while boosting Clinton. When the next internal clash comes, the Agencies could well decide the contest.
Here is a sketch of the major measures by which any president and Congress could help guard the Republic against the Agencies, in ascending order of importance and difficulty.
Were the executive branch to challenge FISA in court, it is difficult to imagine the argument by which to sustain the constitutionality of involving the Judiciary in national security surveillance.
Neither Professor Scalia nor anyone else made any such arguments in 1978. At the time, civil libertarians accepted in good faith the immunities that FISA was giving the Agencies in exchange for their good-faith promise to take seriously the parchment barriers contained in the law. The Justice Department winked at this accord’s patent un-constitutionality because it removed objections to needed surveillance of foreigners while posing no immediate threats. Hence, FISA became known as “an indispensable tool” for national security—as if needed surveillance had never been done before FISA and could not take place without it. But as the years wore on, good faith succumbed to partisanship, and tolerating little violations of the Constitution for noble purposes had its usual effects.
Today, there is no more good faith.
Today, FISA’s existence (and expansion under Section 702) having facilitated gross U.S. governmental interference in our political process, there is broad consensus on the need for “a legislative fix.” But because the problem lies in FISA’s very premise—the secret mingling of judicial and executive power—no such fix is possible. This being so, any legislative remedies—more elaborate standards and procedures, maybe even mandating a “devil’s advocate”—must be equally as vulnerable to partisan re-interpretation as the ones that John Elliff and friends elaborated in 1978. Parchment barriers notwithstanding, purpose-driven bureaucrats and friendly judges acting together in secret can do whatever they want.
With regard to Intelligence surveillance as with anything else, the Constitution makes it possible for the Judiciary to restrain the Executive by forcing each to work by their own rules. The Executive may work in secret. But the Judiciary may choose to examine that secret work in its own public sphere. The very possibility of a public hearing is greater incentive for the Executive to adhere to its own rules than submitting applications to an ex parte court in secret. Separation of powers—each branch concentrating on fulfilling its own responsibilities—is the U.S. Constitution’s genius.
Repealing FISA outright is as simple as the removal of a priori justification would be sobering. Minus FISA, the Agencies would find malfeasance more hazardous and more difficult to hide. Only Congress can repeal it. But the president can achieve the same effect by challenging FISA’s constitutionality in the Supreme Court, while ordering the Agencies not to submit any applications to the FISA Court. But changing the CIA’s and FBI’s habit of acting as partisan policymakers and, most recently, of throwing their weight around in domestic politics, will require reducing the Agencies’ size, resources, and pretenses.
The U.S. Intelligence community’s size—some $58 Billion annually for the National Intelligence Plan—ensures that those who administer it control a lot of careers, contracts, consultancies, and high-level contacts. That much money and power, added to the capacity to shield the basis of its pronouncements, comports prestige in spite of substantive incompetence.
Wasteful activity is the least of the problem. Much of what happens within Intelligence is counterproductive. Worse, the sense of power that comes from managing such big things—while having near-total control of how their own management is explained—accustoms its officials to a ruinous sense of entitlement to having their own way. As the Intelligence community has grown in size—nearly doubling since 9/11—it is becoming ever more a political force that pursues its own objectives.
Hence, shearing U.S. Intelligence—cutting down or out functions that are wasteful or dysfunctional—is an indispensable means to refocusing the Agencies on their proper functions. Shearing also creates opportunities for replacing the officials whom the bureaucracy had selected as its champions with ones chosen to do what they should while eschewing domestic politics. Nothing quite so focuses bureaucrats’ minds as the clear and present possibility of reductions in force.
This is truest regarding CIA, the Community’s most politicized part, which wields outsized influence in Washington and in the media. From the beginning, the Agency took on a peculiar socio-political character and gathered its personnel’s allegiance to itself rather than to the president—or to the United States. Legally, shearing CIA is the easiest of tasks because, by the law that established it, its employees may be hired, managed, and fired strictly at the president’s pleasure.
The candidates for shearing include major technical Intelligence programs that have become known to their targets, and which hence have become potential avenues of disinformation. Many of CIA’s human Intelligence operations should also be considered for shearing because of their structural operational insecurity. Since lack of operational security and quality control is arguably U.S. Intelligence’s major shortcoming, lack of these features in any given programs should put it on the chopping block.
The gargantuan amounts of metadata of U.S. telephone calls and emails have been judged useless and worse: the infrastructure for storing them should be eliminated.
Much if not most of the Community’s vast network of consultants has always been a kind of echo chamber and welfare system for the well-connected, and should be eliminated.
CIA’s Directorate of Intelligence, vastly overstaffed and specializing in groupthink, tries to be the U.S. government’s official interpreter of foreign reality—a worse than useless function. The Community’s very size has occasioned the establishment of support structures, such as the National Intelligence University, to prepare persons for service in it. Surely, these should be abolished.
Not least of the benefits from the cuts would come from explaining to the public how they remedy wrongs and improve performance. Such explanations would also temper the resistance they would generate.
Since the reduction and possible elimination of programs impacts the interests of well-connected officials—and especially of corporate contractors—resistance and lobbying are sure to be fierce. But the personal, private motivation of these factional interests can serve as an argument for why the cuts are in the national interest. Each cut should be made in ways that de-mystify Intelligence, and put it in its natural place as the servant rather than the master of government.
Getting It Right
The trope that knowledge of others’ secrets is prerequisite to understanding how we should deal with them is the reverse of the truth. In fact unless we know who we are and what’s good for us; unless ordinary intercourse has taught us what others are about; unless we use our intelligence in the ordinary sense of the word, secret Intelligence can only confuse us. And in fact, though the United States has never suffered because our officials lacked knowledge of others’ secrets, the American people have suffered much from their willful ignorance of the realities against which they continue to stub our toes.
All too often, they have used Intelligence to counter common sense. During the Cold War, arguments over secret tidbits about Soviet weapons allowed policymakers to sidestep the question before them: how shall we defend America? More recently, arguments about Iraq’s and Iran’s Weapons of Mass Destruction obscured the real question: what is our interest in the Middle East, and how shall we serve it?
Intelligence being policy’s natural servant, it cannot carry any policy’s burden. Intelligence can help intelligently conceived policy to succeed. But it cannot rescue congenitally dumb policy. Asked to address students at the National Intelligence University who were asking what they could do to help our troops in Afghanistan, I could only set their consciences at ease: No amount of Intelligence could help distinguish between friendly Youssef and unfriendly Ahmed, never mind turn the latter into the former.
At home as well, it turns out that lack of intelligence is more troublesome than lack of Intelligence. Almost all acts of terrorism are perpetrated by persons already well known to local law enforcement or to the FBI. The perpetrators are not “lone wolves” out of nowhere, but known wolves, known to Intelligence but not to intelligence. At home like abroad, our real need is for ordinary intelligence, along with ordinary virtues.
Hence, as we reshape U.S. Intelligence to better serve the Republic, we need not fear that we will deprive ourselves of knowledge for our own protection.
Function and Intelligence
Secrets help refine plans for action. They do not define action’s parameters. Their value depends on the difference they make to the plans’ success. That is why Intelligence is normally subordinated to operations. The U.S. Army, Navy, and Diplomatic service used to collect such secrets as they needed. Specific supply followed specific demand. But by establishing CIA as the central organ of U.S. intelligence, the 1947 National Security Act reversed this natural order.
CIA was to be responsible for no operations except for such covert activities as the President might order.
The Act granted CIA a near monopoly on human collection and communication with the president and Congress on Intelligence matters. It subordinated the Intelligence activities of the government’s operating departments to CIA supervision. These departments now keep control of Intelligence in which CIA is uninterested and get most of the Intelligence they need from or through CIA. Hence, they get what the CIA system produces, given its own interests and capacities, regardless of their own needs. Because the Agency soon developed its own particular predilections, the gap between what the operators need and what CIA has available has always been wide. U.S. Intelligence became controlled by the producers of secret information—not by its consumers. The results have been comparable to those of other producer-dominated systems.
CIA was created specifically and primarily to serve the president of the United States. Informing him is its primary job. But, from the beginning, CIA officers crossed the line between informing the president and claiming the right to form his mind—as well as the rest of the government’s mind. Ever less subtly, CIA has claimed that it is improper, even illegitimate, for anyone in the U.S. government, including the president, to act or even to think about foreign affairs contrary to its own supremely authoritative judgments. Over the decades, the media have echoed CIA’s complaints whenever presidents have acted regardless of or against CIA’s recommendations.
This is doubly wrong. Yes the president, constitutionally responsible as he is for the conduct of the armed forces and foreign relations, must have an architectonic view of what he is up against. But that does not mean that his advisers can know the military’s and the diplomats needs for information. Much less does it authorize the standard CIA view that its job “comprises all the major evaluative and predictive functions” and “leaves the policy-maker little or nothing in the decision-making process except the ceremonial finale.” But this has been the basis for its attempts to substitute bureaucratic authority for that of officials responsible to voters. CIA’s complaints are another instance of our ruling class’s attempt to push aside representative government in favor of the Administrative State.
In sum, since 1947, U.S. Intelligence’s basic structure has separated the collection and analysis of secrets from the functions they should serve. Having created a presidential Agency with no functions to fulfill for which it may be held responsible has encouraged that Agency—and others by imitation—to presume presidential powers. A non-responsible agency became irresponsible. We should reverse the process.
Congress, being beholden to the Agencies’ contractors, enmeshed with their bureaucracy, and ignorant of their failings given their oversight Committees’ unserious oversight, (Devin Nunes’s 2015-19 chairmanship on the House side and Malcolm Wallop’s 1981-85 budget chairmanship on the Senate side excepted) will not amend the 1947 National Security Act until it learns that it should. The president can help it learn by exercising his substantial authority to subordinate Intelligence to the government functions it is supposed to serve. Exercising that authority requires more attention to Intelligence than presidents heretofore have wanted to devote. But, the Agencies having played such a prominent part in the Resistance against President Trump, neither he nor any future president can afford not to force them out of politics while focusing them on their jobs.
The President should end the CIA’s monopoly on providing Intelligence to himself and the NSC; demand to receive his Intelligence briefings from State, Defense, and Treasury as well; order CIA to stop characterizing the documents that it produces as authoritatively and exclusively of “national” status and encourage other agencies to create whatever documents and briefings might flow from their expertise. By doing so the president would broaden the perspectives to which the top levels of government are exposed, introduce open intellectual competition in the analysis of Intelligence, and remove Intelligence officers’ temptation to substitute their judgment for that of responsible officials. Top officials, and the president himself, having become habituated to receiving just one perspective, would feel the weight of additional responsibility.
This would also be a first step in the parceling out of CIA’s functions, and a demonstration of the benefits thereof.
The President should also end the CIA’s near monopoly on human Intelligence. The need for Intelligence from persons under covers other than the ones CIA provides is undeniable. CIA did not object to the creation of a corps of undercover agents in the Justice Department’s Drug Enforcement Agency because its own people would not even try to do that dirty, dangerous work. Heretofore, however, it has objected to the military running its own deep cover agents. The president should override those objections and direct OMB to budget funds for such human Intelligence as the Services think necessary for military operations. Broadening the Services’ collection would also enrich the DOD’s analytical products.
Most of the National Security Agency and the National Reconnaissance Office are properly run by the military for military needs. But substantial technical systems that are aimed at political Intelligence are planned and controlled by CIA. Since the “take” therefrom is useful primarily for foreign relations, the State Department is best fit to judge what it needs from them. The President should decide to reorganize accordingly.
The covert exercise of political and paramilitary influence was not least of the reasons for CIA’s establishment. But international law does not treat threats, blandishments, support, or opposition any differently if done with greater or lesser degrees of secrecy. In retrospect, influence on other countries being the proximate purpose of foreign relations, the benefits of maintaining the “plausible deniability” (utter secrecy of actions being inherently impossible) of U.S. influence are difficult to understand.
Subsequent experience makes it more difficult to avoid the conclusion that covert action’s covertness was always meant to allow the U.S. government to avoid publicly confronting the question “what are we doing in the world on whose behalf?” because it is the flip side of the core domestic question: “who and what among us is right, and wrong?”
CIA’s covert actions’ covertness within the U.S. government resulted in not sufficiently thinking through their consequences. Worse, covertness allowed the U.S. government to defer basic choices between foreign policy alternatives. Often, while the State Department pursued option A, the government would keep option B alive through CIA. Multi-track policy has also been instrumental in erasing the distinction between war and peace.
The president should decide to abolish the ruinous category “covert action” and hence make the State Department responsible for the exercise of all manner of political influence abroad, and the military services responsible for military and paramilitary affairs.
The President of the United States should control Intelligence by the very means by which he controls all other parts of the National Security establishment: The National Security Council. That is, assuming that he controls it, and not the other way around.