Certainly, the process is beset with vast, and serious, problems.
Mr [DoJ Inspector General] Horowitz’s staff reviewed a sample from a recent five-year period, October 2014 to September 2019, during which the eight FBI field offices applied for more than 700 surveillance warrants on US persons. Each of the reviewed files contained errors, inconsistencies and omissions. After reviewing the report, the FISA court’s Chief Judge James E Boasberg issued a rare public order. He told the government to undertake steps to ensure the accuracy of FISA applications. Yet inaccuracy isn’t the only problem. The use of FISA against a US citizen presents a fundamental threat to civil liberties. It essentially suspends the Constitution.
The problems, though, aren’t limited to FBI misbehaviors, the FBI being the proximate target of Boasberg’s order. The existence of these errors and the long-time existence of this sort of error each and together demonstrate that men of government, when able to exercise their power in the darkness of secrecy, cannot be trusted to stay true to the straight and narrow, to the strictures of integrity.
After FISA was enacted in 1978, FBI Director William Webster set the standards for its use.
And those standards have been violated.
Over the years FISA has been amended to allow for the surveillance of Americans. But there were safeguards.
Even with that legislative drift, the evolving safeguards have been violated.
Limiting FISA surveillance must begin with eliminating the Star Chamber that is the FISA Court. That court is lawless enough already, as its ready and unquestioning acceptance of false warrant applications demonstrates. Its secret proceedings, along with that history, lend no credibility to the premise that, were its approvals limited by statute to foreign nationals, that it would honor those limits any more than have the men coming before it with applications to spy on American citizens foreign nationals who happen to be corresponding with American citizens.
Nor has that secret court ever been necessary, even did it behave properly. It exists to facilitate secret surveillances supported by secret warrants. Our Article III courts, and our State courts, have long been checked out on sealing—keeping secret—warrants, and subpoenas, until it comes time actually to serve them. Our courts, and our States’ state-level and local police departments, have long been checked out on conducting quiet surveillance—while under the careful eye of our public courts and of us citizens of the United States and of the State wherein [we] reside.
The existence of this Star Chamber is at the heart of the suspension of our Constitution about which Baker wrote at the link.