Friday marks the deadline given to the FBI to tell the nation’s top national security court how it will fix the process that led to doctored surveillance requests and improper spying on a presidential campaign staffer in 2016. The abuses occurred when the FBI launched an investigation, as part of a larger probe into Moscow’s political interference, to determine whether Trump campaign adviser Carter Page coordinated with Russia to influence the presidential election.
That such transgressions ever happened should alarm everyone concerned with civil liberties and national security; even the perception of bias in the FBI hurts its ability to protect both by casting suspicion on thousands of dedicated agents, analysts and staff.
Regardless of one’s politics, we should all hope the 40 “corrective steps” ordered by FBI Director Christopher Wray address the bureau’s failings.
That’s why, regardless of one’s politics, we should all hope the 40 “corrective steps” ordered by FBI Director Christopher Wray address the bureau’s failings. But it will be up to the secretive Foreign Intelligence Surveillance Court (FISC, also known as the FISA court) — which oversees FBI requests for wiretapping and other surveillance — to determine if they are adequate.
Sadly, the country has been here before. In an episode with eerie parallels to today, almost exactly a century ago the FBI’s precursor organization abused its power by conducting sweeping raids (executed by a tenacious young J. Edgar Hoover), based partly on fears of malign Russian influence in a U.S. election year.
That dramatic overreach created deep distrust of government, impacted the then-ongoing presidential race and sparked a civil liberties movement that lasts to this day. We can do better this time around if the bureau decisively polices itself and complies with the court before doing further damage to Americans’ trust in the FBI and other federal institutions.
It was significant that in this case, the FISC publicly reprimanded the FBI for its behavior and demanded change once the breaches were revealed. That happened in December when Justice Department Inspector General Michael Horowitz released a report detailing multiple instances of agents purposefully withholding exculpatory evidence when they sought warrants to search Page’s communications.
As a rule, the FBI must submit domestic surveillance requests to the court, and the court, in secret, determines if they are compelling enough to grant. The process is not public for national security purposes and presumes competence and trust on both sides.
But as the court’s presiding judge, Rosemary Collyer, wrote last month, agents’ requests to spy on Page were often based on assumptions “contradicted by information in their possession.” According to The New York Times’ summation of Horowitz’s report, FBI agents “cherry-picked” the evidence they gave the court.
While the report determined the FBI was within its limits to begin the 2016 investigation, it did not exonerate agents for continuing to watch Page when it became clear the evidence was so shaky. (Special counsel Robert Mueller’s later probe found no evidence Page coordinated with Russia.)
This is disastrous for public trust in the FBI.
As Collyer wrote, it calls into question FBI credibility across the full range of its surveillance requests: “The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable.”
The Latin legal phrase for this fear is Falsus in uno, falsus in omnibus: “False in one thing, false in all things.” Even if other applications were perfectly error-free, the FBI’s lapse in the case of the Trump campaign rightly rattles Americans’ faith in their public institutions as apolitical guardians.
It is rare for the FISC to make public such internal deliberations at all, and Collyer’s decision to do so is a measure of transparency. It also brings consequences. As the Pew Research Center points out, the more convinced we become that a group’s individual members are unethical, the less we’re willing to trust its performance. This has played out in deteriorating perceptions of the FBI, especially among voters identifying as Republicans, 54 percent of whom believe the bureau is biased against President Donald Trump.
The FBI must come clean because America needs the bureau at its best — and repeating past mistakes won't help.
The FBI’s current predicament echoes the episode with its precursor agency almost exactly 100 years ago. In January 1920, the Bureau of Investigation arrested or detained between 3,000 to 10,000 persons in more than 30 cities on the night of Jan. 2 in an operation overseen by Hoover. Known as the Palmer Raids, for then-Attorney General A. Mitchell Palmer, the raids were the largest mass arrests in U.S. history.
Like the 2016 surveillance, the Palmer Raids were partly based on fears of Russian malign influence in the U.S. But Palmer was also planning to run for president; he believed high-profile raids, responding to a rash of bombings in 1919 at the height of the first Red Scare, would benefit him politically in the November elections just a few months later.
Instead, Palmer’s use of illegal search and seizure and abuse of due process appalled Americans. Once news of the detentions and arrests became known, the national backlash resulted in his humiliation and eventual political demise.
As Mark Twain purportedly said, history does not repeat, but it often rhymes. For the FBI, 1920 is a terrible year to rhyme.
More lastingly, it galvanized concerned Americans to form the American Civil Liberties Union, or the ACLU, in direct response to the federal government’s trampling of due process. Later that fall, the Democratic Party’s once-bright prospects for the 1920 election were smashed when Republican Warren Harding won in a landslide.
As Mark Twain purportedly said, history does not repeat, but it often rhymes. For the FBI, 1920 is a terrible year to rhyme. Fortunately, both Wray and Attorney General William Barr have publicly committed to correcting how the bureau manages this process. Both must do so in time for the 2020 elections.
Keeping America safe has always required a degree of confidentiality and, yes, secrecy. The FBI does vital work protecting the homeland. So does the FISC. But both need to clearly break with this current moment, and prudential acts of transparency, like Collyer’s, go a long way to help.