Reauthorization of the Foreign Intelligence Surveillance Act (FISA) is once again up for consideration and Sen. Rand Paul (R-Ky.) has an amendment to fix it — and is urging President Donald Trump to veto the renewal legislation if the Senate doesn’t adopt it.
What makes the Paul amendment unique — and why it must be adopted — as summarized by Lawfareblog.com is that it would “require that electronic surveillance, use of a pen register or trap-and-trace device, production of tangible things, or targeting of U.S. persons for information can be done only pursuant to a warrant issued by a non-FISA federal court and only under the Federal Rules of Criminal Procedure.”
This is the heart of the matter, in that FISA allows the government to spy on U.S. citizens for the purpose of gathering intelligence without needing an underlying crime to investigate. It was on this basis that former National Security Advisor Lt. Gen. Michael Flynn had surveillance conducted on him that was transformed into a criminal investigation on the flimsiest of grounds.
No federal judge had issued a warrant to question Flynn, nor was Flynn advised of his rights. And yet, the FBI used surveillance on his Dec. 22, 2016 conversation he had with Russian ambassador Sergei Kislyak during the presidential transition, which was then maliciously leaked to the Washington Post on Jan. 12, 2017, as a basis to quiz Flynn about it on Jan. 24, 2017.
The ostensible reason to run the FBI at Flynn was supposed violations of the centuries-old, never-prosecuted Logan Act, but Flynn had already been discounted as a potential Russian agent on Jan. 4, 2017 as a part of its own at the time ongoing investigation into the Trump campaign on false allegations the President and his team had coordinated the Wikileaks hacks of the DNC and John Podesta with Russia.
Turns out none of it was true. As former Special Counsel Robert Mueller stated in his report: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” and “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.”
So if there was insufficient evidence to support the investigation, how in the world did the surveillance ever get authorized? FISA, that’s how. The Kislyak call surveillance because it came from a stream of intelligence was used to renew the investigation.
As currently written, even with the reform amendments under consideration, the legislation would actually still have authorized a FISA judge to target not only Flynn but also Carter Page on mere suspicion and erroneous intelligence reports, whose applications were fueled by the DNC-Steele dossier falsely accused President Donald Trump, Page and Paul Manafort of being Russian agents.
There are new oversight tools for Congress to potentially rein it in, but on the core issue, there is no eye witness testimony to support a FISA warrant, leaving the door open for malicious targeting by intelligence agencies like happened with Trump.
If we’re really going to say never again, then Sen. Paul’s amendment must be adopted, or else President Trump should veto the legislation until Congress gets it right. Otherwise, this is going to happen again, Mr. President. 2016 was only the beginning.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.