The Wall Street Journal‘s editors are concerned that doing away with FISA’s Section 702 would be the wrong way to punish the FBI.

I agree. But the editors are missing the point. They too narrowly justify 702 with this:

Congress created Section 702 after 9/11 to address intelligence-gathering gaps. It lets the government collect information without a warrant on non-US citizens living abroad.

That’s a worthy purpose; although the realization has demonstrated the difficulty of using the capability to good effect, and without abusing it. Or the impossibility of that with the current regime. The FBI has demonstrated that, as an institution, it cannot be trusted with 702 output, and the FISA Court has empirically demonstrated that cannot be trusted, either—not after squawking about FBI lies in the latter’s filings and then proceeding to accept unquestioningly further FBI blandishments and warrant applications.

Answering those deficiencies, though, is a separate matter from applying the appropriate responses to the FBI’s misbehaviors and the FISA Court’s yapping about those misbehaviors.

The FBI is irretrievably broken—its lies to a court are only part of the institution’s failures; its stonewalling of Congress under the risible rationalization that its internal procedure policies are superior to Congress’ constitutionally mandated oversight obligations are another—and it needs to be erased from our government altogether. That, not dealing with 702, is the correct response to the FBI’s institutional dishonesty.

The correct FISA-related action is to make the FISA Court a public proceeding court or itself eliminated as well. That’s not punishing anybody; that’s simply getting rid of the stain of a secretive Star Chamber and forcing “court” activities out into the sunlight, or bringing the warrant application/granting process back into a proper Article III court. Those courts, after all, are fully checked out on the process of keeping warrants sealed until execution.