At a Senate Judiciary Committee hearing held shortly after the release of his scathinging report on the FBI’s investigation of erstwhile Trump aide Carter Page, DOJ Inspector General Michael Horowitz had a telling exchange with Sen. Marsha Blackburn (R-Tenn):,
Blackburn: Let me ask you this, how often do you find mistakes in a FISA Application?
Horowitz: This is actually the first time my office has done a deep dive into a particular application. We’ve done higher level reviews on the FISA process and have found various issues at a higher level, but this is the first time we’ve been able to delve in this way.
Blackburn: It’s a fairly fairly unusual occurrence?
Horowtiz: Let me put it this way, I would hope so.,
Presumably Blackburn had expected a rather different response: That the embarrassing catalog of omissions, errors, and misrepresentations that the IG’s office found in applications for FISA surveillance of Page were extraordinary and unprecedented—suggesting some special vendetta against the Trump campaign. Horowitz’s discomfiting, candid reply deserves to be unpacked, because it implies at least three important points worth bearing in mind.
First, while surveillance of an advisor to a presidential campaign is certainly an unusual use of the Foreign Intelligence Surveillance Act, there is no reason to suppose that Page’s case is some sort of extreme outlier. On the contrary—as common sense would suggest and Horowitz’s report confirms—investigators were acutely aware that this was an enormously sensitive case certain to draw intense scrutiny. Thus the initial FISA application targeting Page, at least, was unusually detailed, and received additional layers of review before being submitted to the Foreign Intelligence Surveillance Court (FISC). It’s reasonable to infer, then, that many of the thousands of FISA applications filed each year have defects as bad or worse than those Horowitz identified here.
Second, if we want an explanation for those errors, Horowitz’s answer suggests one more systemic than a cartoonish anti-Trump vendetta: Nobody is doing the kind of thorough investigation that would find and correct those problems. In a criminal investigation, the purpose of a so-called Title III wiretap order is to obtain evidence for a criminal prosecution. While the initial application is submitted in secret, defense attorneys will be entitled to discovery at trial, and have ample incentive to hunt for government missteps. What’s more, investigators know they need to keep track of potentially exculpatory information, which they’ll be obligated to turn over. Even in cases where no prosecution results, the target of a Title III wiretap has to be notified once the wiretap ends, and may take legal action. The purpose of FISA surveillance, by contrast, is gathering foreign intelligence, not collecting evidence for use in court: The vast, vast majority of FISA targets will never be prosecuted. Unlike a Title III, a FISA might be “successful” from the government’s perspective—because it yielded foreign intelligence information—without actually validating its initial premise that the target is a foreign agent. In short, while the FISA process looks superficially somewhat similar to its criminal counterpart on the front end, it lacks the adversarial mechanisms on the back end that constitute a critical part of the criminal process.,
The most obvious takeaway from the Horowitz report is that we need far more comprehensive “deep dive” investigations into the use of intelligence tools.,
Third, we should be wary of the temptation to think about potential FISA reforms exclusively in terms of this case, and the findings of this one report. Not merely because we don’t yet know which of the problems identified by Horowitz are most pervasive—and thus most indicative of the need for a remedy at the policy level—but because Horowitz focused almost entirely on Title I of FISA, which most closely resembles the traditional warrant process, with judges making particularized probable cause determinations. An intelligence investigation in which a FISA order was sought assuredly made use of myriad other intelligence tools, most of which involve far less oversight: Business records orders (§215), pen registers to collect communications metadata (§214), and National Security Letters for certain categories of financial or telecommunications records. Horowitz says little about these, perhaps because these other tools had not been as central to the public controversy surrounding the Page investigation. But if corners are cut to the extent documented by Horowitz even in the case of Title I orders, the most rigorously scrutinized, we can hardly suppose everything’s copasetic with authorities that effectively operate on the honor system.
Title I FISA Orders
The most obvious takeaway from the Horowitz report is that we need far more comprehensive “deep dive” investigations into the use of intelligence tools, both to discover how pervasive the defects Horowitz identified are in other Title I FISA applications, and whether there are comparable problems with other surveillance authorities. As the Inspector General’s report demonstrates, there are serious issues that will not be identified by “higher level” reviews, such as the omission of information that would tend to undermine the government’s case. But such “deep dives” need not just serve as a guide for policymakers: They can also serve as a partial remedy, precisely by replicating (imperfectly) the mechanisms and incentives that serve as checks on criminal investigations.
While, of course, it is not realistic to expect reviews this exhaustive for any significant percentage of FISA investigations, a deeper review of a representative sample of U.S. person FISA applications—not simply verification that facts asserted in the application have documentary support, but a review of the case file and correspondence for material omissions—may help to reproduce some of the incentives that exist on the criminal side. Case agents will be conscious of the possibility—the risk, if not the certainty—that they will be called to explain why some fact favorable to the target of surveillance was omitted from an application. Even if only a small fraction of FISA applications can be so reviewed, such a process would introduce an incentive to focus on potentially exculpatory information currently absent from FISA.
On the front end, the role of existing FISC amici could be expanded to permit discretionary intervention in applications being submitted to the Court—not merely in cases in which the FISC itself seeks their perspective—at least in cases designated “special investigative matters” because of their potential implications for religious, political, or press freedoms. The current remit of the amici is to advise the Court in cases involving “novel or significant” legal interpretations or requiring technical expertise. But civil liberties interests need not be “novel” to require an advocate to make them sufficiently salient to a judge. The participation of amici would add a dimension not typically provided by existing internal oversight, which tends to be more focused on formalistic compliance than weighing competing equities and interests.
Finally—and perhaps most importantly—the presumption that FISA surveillance will be permanently covert should be ended. Currently, the only FISA targets who normally become aware of surveillance are the small fraction the government ultimately chooses to prosecute for a crime—which is to say, those whose wiretaps did indeed produce strong evidence confirming the government’s suspicion that they were engaged in wrongdoing. A target whose surveillance proves to have been unjustified, perversely, has no remedy, because they will never learn of it. While there will doubtless be cases in which the protection of sources and methods precludes such notice—where publicizing even the identities of erroneous targets would feed too much vital information to genuine adversaries—this should no longer be the default. At the termination of FISA surveillance of a U.S. person, there should be a rebuttable presumption of notice parallel to that required by Title III surveillance, unless the government can demonstrate to the FISC that such notice would entail a concrete national security harm sufficiently grave to outweigh the target’s interests. (Here, too, FISC amici should have an opportunity to represent those interests.) As the Supreme Court wrote in Berger v. New York, the requirement that targets of a search be given notice absent exigent circumstances “would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized.” Indeed, notice is an important component of what makes a search “reasonable” in Fourth Amendment terms. It was the absence of notice that particularly sparked Lord Camden’s ire in the seminal English case of Entick v. Carrington:,
[The warrant] is executed by messengers with or without a constable (for it can never be pretended, that such is necessary in point of law) in the presence or the absence of the party, as the messenger shall think fit, and without a witness to testify what passes at the time of the transaction; so that when the papers are gone, as the only witnesses are the trespassers, the party injured is left without proof.
If this injury falls upon an innocent person, he is as destitute of remedy as the guilty: and the whole transaction is so guarded against discovery, that if the officer should be disposed to carry off a bank bill he may do it with impunity, since there is no man capable of proving either the taker or the thing taken.,
While the facts of specific cases may justify delaying or waiving notice to a target, that justification should still need to be made on a case-by-case basis: It should not simply be categorically presumed that the government’s ex ante foreign intelligence purpose in seeking a wiretap automatically provides sufficient ex post grounds for leaving a target “destitute of remedy.”
Other Surveillance Authorities
While the Horowitz report says relatively little about other investigative tools deployed in the Page investigation, government acquisition of detailed financial and telecommunications metadata can in many ways be as intrusive as the collection of content. Yet multiple authorities—including the aforementioned §215, §214, and National Security Letters—permit such information to be obtained with little more than an assertion of “relevance to an investigation.” In the case of National Security Letters, judicial approval is not even required. The FBI could have used this panoply of tools to conduct incredibly revealing surveillance of Page without risking similar criticism, because they would not have needed to establish probable cause to believe he was acting as a foreign agent. It would be enough that the case agents regarded his activities as potentially relevant to their probe. That bar should be raised.
Here, current law provides a straightforward mechanism for strengthening civil liberties protections while still allowing investigators enormous flexibility. FISA’s business records authority (§215) specifies that records are presumptively relevant to an intelligence investigation if they pertain to:,
(a) a foreign power or an agent of a foreign power
(b) the activities of a suspected agent of a foreign power who is the subject of such an authorized investigation, or
(c) an individual in contact with, or known to, an agent of a foreign power who is the subject of such authorized investigation.,
All three of the aforementioned authorities should be amended to require a showing that records are relevant to the investigation and fall into one of these three quite broad categories. This would help ensure both that the net of “relevance” is not cast so wide it encompasses individuals without a concrete link to a valid investigative target, and that peripheral associates of a target are not automatically or indiscriminately subject to invasive monitoring without some specific basis for believing their records are needed, beyond the mere fact of association with a target.
In the case of National Security Records, the scope of telecommunications records obtainable should be restricted to “basic subscriber information”—such as name, address, length of service, and billing address—while more detailed “electronic communications transaction records” and “toll billing records” require use of an authority subject to judicial approval, such as §215. This should give investigators the necessary latitude—and enough initial information—to assess whether a court order should be sought without exposing a detailed roadmap of individuals’ digital activities before a judge is involved.
In Page’s case, of course, these changes would not in themselves have made much difference, since the FBI had successfully persuaded the FISC that he was probably a foreign agent. But they might have limited the collateral damage to friends and associates whose finances, phone records, and online activity all became automatically available to the government as a result. While only Page himself was directly subject to full-content FISA surveillance, everyone in contact with him would have become “presumptively” subject to extensive metadata surveillance as a result of that association.
In addition to being advisable in themselves, then, reforming these metadata authorities can be thought of as a backstop or supplement to FISA Title I reform. Even with the best imaginable procedures, the government will sometimes target people for surveillance improperly, or for longer than is justifiable. Narrowing the government’s power to acquire metadata ensures that such errors are at least not compounded by authorizing granular monitoring of their entire social universe.Julian Sanchez is a senior fellow at Cato and focuses primarily on issues at the busy intersection of technology, privacy, civil liberties, and new media — but also writes more broadly about political philosophy and social psychology.
In contemporary American government, the presidency is dominating Congress in our system of separate-but-competing branches. This constitutional imbalance is a growing threat to liberty, and the only solution is to make Congress great again.,
Let’s start with first principles: The Constitution sets forth our governmental structure in its first three Articles.
Article I of the Constitution establishes Congress. Article II creates the presidency. And Article III renders the Supreme Court.
Did you notice that Congress is number one?
That’s not by accident. The Founding Fathers took it for granted that Congress is first among equals within our tripartite government.
Indeed, the Founders feared Congress most of all. In Federalist 47, James Madison worried that Congress’s “impetuous vortex” would swallow up the authority wielded by its coordinate branches.
Ultimately, the Founders feared most the concentration of power, which Madison described as being the “very definition of tyranny.”
For most of its history, Congress has lived up to these expectations. Now, however, our once-grand legislature is a shell of its former self.
With respect to current events, the best evidence of Congress’s fall is the ongoing impeachment debacle.
The Founding Fathers intended impeachment to be Congress’s ultimate weapon in a permanent competition with the presidency. In Federalist 66, Alexander Hamilton wrote that impeachment is Congress’s “essential check” on “encroachments” by the executive branch.
In accordance with these expectations, past impeachments have been part and parcel of structural battles between Congress and the presidency.
Consider President Richard Nixon. Sure, Congress put him through the impeachment wringer, but lawmakers also enacted reforms to shift the balance of power towards Congress. The Legislative Reorganization Act of 1970, for example, beefed up congressional staff and resources. And the Budget Impoundment and Control Act of 1974 attempted to reassert Congress’s power over the purse.
Similarly, the 19th century impeachment of President Andrew Johnson was emmeshed within a larger struggle between the elected branches of government.
Today’s impeachment of President Donald Trump, by contrast, has nothing to do with checking executive power. Instead, it’s all about winning the presidency on behalf of the two political parties.
Getting two-thirds of the Senate to go along with removing President Trump was never going to happen, so instead House Democrats are using the impeachment inquiry to sway next November’s vote.
For their part, Senate Republicans are embracing a trial, reportedly in the hope that a drawn-out process will keep Democratic presidential candidates in the Senate off the campaign trail during the crucial first primaries in Iowa and New Hampshire.
Meanwhile, neither the House nor Senate currently is trying to enact substantive reforms that would rein in executive overreach. Rather than competing with the president, both chambers in Congress are leveraging the proceedings to conduct partisan political campaigns for the presidency.
What’s going on here? Why have the House and Senate, through the impeachment process, become willing cogs in the oily machinery of the 2020 presidential contest?
The answer involves a tectonic shift in American government, from a functioning separation of powers to one that is alarmingly out of whack. To appreciate today’s perverted impeachment process, one must understand how the president supplanted Congress as policymaker-in-chief.
Our imbalanced constitutional process results from three interrelated historical developments.
The first is that Congress, over the last century, has given away, or “delegated,” much of its policymaking initiative to the executive branch. For the most part, Congress delegates to pass the buck. When voters want something done, lawmakers could legislate policy specifics, but they’ll get blamed if they err. By delegating, Congress can escape accountability by having agencies make tough choices.
Thus, Congress has delegated into existence an alphabet soup’s worth of regulatory agencies, which are collectively known as the administrative state.
The second historical development is the centralization of power in Congress under the control of party leaders. When Congress first started giving away its power, lawmakers took pains to oversee their delegations through a system of strong committees in the House and Senate. From the New Deal to the Reagan era, powerful committee chairs vied with presidential appointees for influence at regulatory agencies.
During the last 40 years, however, Congress changed. Demographic shifts led to the end of blocs of southern Democrats and northeastern Republicans. Without these moderate voices, the two parties became more uniform in outlook.
As hive-mentalities were taking hold in Congress, opportunistic leaders, such as former House Speaker Newt Gingrich (R-GA) and Senate Majority Leader George Mitchell (D-ME), consolidated power with rules changes, procedural maneuvering, and the distribution of party resources. As power shifted from committees to party leadership, Congress lost the capacity to oversee its delegations.
This brings us to the third historical development. As Congress lost interest in managing agency policymaking, modern presidents have seized undisputed supremacy over the administrative state. Since Nixon, an unbroken succession of presidents tightened the Oval Office’s grip over agency spending and regulatory output, primarily through the administrative state’s brain—the Office of Management and Budget within the Executive Office of the President.
The upshot is that policy now flows from the White House rather than Capitol Hill. In 2018, federal agencies issued 12 rules and regulations for every law Congress passed (3,367 agency rules, compared to Congress’s 291 laws).
Nor are these middling measures. Major economic and social policies—identical to those that Congress considered but ultimately rejected—now regularly emanate from the executive branch.
For example, Congress couldn’t pass immigration reform, net neutrality, nor a carbon dioxide cap-and-trade, but President Barack Obama achieved the same results unilaterally using the power that Congress already had given away.
Republican presidents, alas, are no less guilty of executive excess. To wit, lawmakers denied President Trump funding to build a border wall, but then he exercised his delegated authority to expand the wall without Congress.
In a celebrated law review article written when she was a professor at Harvard University, Supreme Court Justice Elena Kagan wrote that contemporary government is defined by “presidential administration” due to the president’s “comparative primacy [relative to Congress] in setting the direction and influencing the outcome of administrative process.” Today, the president doesn’t merely set the agenda; he controls its creation and execution.
In this context—where the president calls the shots and Congress is beholden to party leadership—half the legislature always is unbothered with unbound executive authority whenever “their guy” occupies the White House.
It’s a vicious feedback loop. The more powerful the president becomes, the more our party-centric Congress rationally believes that the Oval Office is the most efficient means to implement the planks of a given party’s platform.
Of course, the parties whine about executive overreach, but only when they don’t occupy the White House. Neither party seeks to claw back power from the presidency, because each side wants its respective team to exercise executive authority.
So, congressional Republicans cried foul about executive power when President Obama resorted to his “phone and pen,” but then rallied to the support of President Trump when he disregarded Congress’s “power of the purse” in funding the border wall. And Democratic lawmakers now complain about presidential power, even though they gave President Obama an ovation when he threatened to bypass Congress on climate change during the 2013 State of the Union address.
Today’s supine Congress would be unrecognizable to the Founding Fathers. They understood that a concentration of power threatens individual liberty, so they designed a government with three branches—executive, legislative, and judicial—and gave each the means to check the other. By dispersing power into competing institutions, the Founders’ constitutional design serves to protect our individual liberty. At present, this constitutional design is buckling.
As noted above, the Founding Fathers feared congressional power most of all. Federalist 62 warns that an “excess of lawmaking” is a “disease” to which “our government is most liable.” For this reason, the Constitution makes it hard to pass laws. Statutes must be passed by both chambers of Congress, and then signed by the president. It’s an arduous journey for a bill to become a law.
By contrast, it’s far easier for the president to impose a regulation. All he needs to do is pick up the phone to get the ball rolling.
Because all regulations carry the force of law, a government characterized by “presidential administration” incubates the “disease” of “excessive lawmaking” no less than a government controlled by Congress. Overweening government is a threat to liberty, regardless whether it’s flowing from the executive or legislative branch of government.
The solution, of course, is to bring balance back to our separation of powers. Congress must rediscover its institutional ambition, and once again engage in robust competition with the presidency.
So, how do we make Congress great again?
Congress might be compelled to get its act together, even if it doesn’t want to.
For almost 80 years, the Supreme Court has refused to police how much power Congress transfers to the executive branch. Under its “nondelegation doctrine,” the Court allows any delegation, as long as it is bounded by an “intelligible principle.”
In practice, however, the Court construed “intelligible principle” so broadly that the concept has no meaning. Even a phrase as nebulous as “public interest” has met the standard.
For the first time since the New Deal-era, a majority on the Supreme Court has expressed a willingness to revisit the nondelegation doctrine. Were the Court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its delegations to the executive branch.
Turning from the Supreme Court to Congress, there are many institutional reforms that the legislature could take to empower itself vis-a-vis the presidency.
Starting with the easiest measures, Congress could remedy its anemic staffing. In fact, the current level of committee staffing is commensurate with levels from the early 1970s, even though government has grown much larger and more complex in the five decades since.
And it’s not just congressional committees that are understaffed. Congress also has starved support agencies, such as the Congressional Research Service, the Congressional Budget Office, and the Government Accountability Office. These organizations employed 6,354 professionals in 1991; in 2015, the number stood at 3,833.
Congress also could create new institutions to better compete. In the early 1980s, the president unilaterally established the Office of Information and Regulatory Affairs (within the Office of Management and Budget) to manage regulations out of the White House. Yet Congress has no commensurate capacity. There is an obvious need for Congress to create its own comparable mechanism to oversee agency rules.
Congress could adopt simple legislative fixes. For example, lawmakers used to regularly limit the clock on their delegations, such that an agency’s regulatory authority expired after a given time. These “sunset” provisions force Congress to periodically review the programs it creates, before these regimes are re-authorized.
Or lawmakers could make greater use of “resolutions of disapproval,” which allow them to veto individual regulations. Since Congress created these “legislative vetoes” more than two decades ago, lawmakers have employed this device fewer than 20 times—far less than two percent of the total number of major rules promulgated by agencies during that span.
If it wanted to get bold, Congress could pass more comprehensive reform. The Regulatory Accountability Act, for example, would require agencies to better justify rules that cost more than $100 million.
And if Congress wanted to regain the upper hand in one fell swoop, the House and Senate would get behind the REINS Act, which would require both chambers of Congress to approve all major regulations before they took effect.
These reforms are fantastic ideas, to be sure, but they’re all nonstarters for as long as love of party trumps institutional pride in Congress. You can lead a horse to water, but you can’t make it drink. Even were Congress to pass REINS, no doubt the House and Senate could find a way to avoid accountability.
Most likely, we need a new type of lawmaker, one who is cut from old cloth. Lawmakers of the not too distant past understood that the presidency—and not merely its office-holder—is the Congress’s constitutional rival. To restore crucial safeguards for “We the People,” we must Make Congress Great Again.William Yeatman is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies.
Cancel culture strikes again: Banned in Maine
by Michelle Malkin
In November, I was banned in Boston after speech-squelchers on the left and right forced the cancellation of my lecture at Bentley University, a small private institution. The grassroots activists who had invited me were rejected by every major event venue in the nation’s purported Cradle of Liberty. The tail-tuckers cited security concerns or jacked up their rental fees to make it prohibitively expensive to gather peacefully to discuss—gasp!—ideas.
Lou Murray of Bostonians Against Sanctuary Cities and Jessica Vaughan of the Center for Immigration Studies heroically persisted, pulling together a great event at a private home attended by 100 patriots who risked their privacy, friendships and even their jobs to listen to—gasp!—ideas. (Watch the video here.)
Soon after, a group of conservative students at the University of Maine, a publicly funded school, invited me to bring my nationalist message about who’s funding the destruction of America to their campus. This prompted the College Republicans’ faculty adviser, political science professor Amy Fried to resign in protest. That led to the de-chartering of the CR group. Why? Because I refused to disavow other young students who have asked trenchant, pesky questions at Young America’s Foundation and Turning Point USA lectures about the GOP elites’ support of wage-suppressing, job-outsourcing, Democrat voter-importing policies that put American students, workers and families last.
Many of those students follow a 21-year-old nationalist named Nick Fuentes who hosts a program (for now) on YouTube and DLive in his basement called “America First.” Because I refused to play the gatekeepers’ game of condemning every last joke or chatroom comment or tweet of someone followed by students whose questions I support, Fried believes that no students at her campus under her watch should be allowed to hear what I have to say about, well, anything.
How strongly do University of Maine officials oppose the free association of college students who want to know more about my work? Yesterday, I learned from Portland Sheraton at Sable Oaks general manager Ed Palmer and others that at least one University of Maine official—along with dozens of others cancel culture jihadists galvanized on social media by an anonymous Twitter account called “Support Maine’s Future”—had called to complain about the students and me after they posted an event notice last Friday. I reached out to top administrators, who did not respond by my filing deadline.
I also wrote to Fried, who responded late Tuesday evening: “I never did that. Didn’t happen. Whoever told you I did is incorrect. Thank you for checking, as you received a false report regarding me.”
I responded: “Too bad you didn’t pay me the same courtesy.”
Adrienne Bennett, a Republican candidate for U.S. Congress (Maine, District 2), challenged the school’s bullying tactics: “Free speech is the cornerstone of a free democracy. We are hearing reports that administrators from the University of Maine pressured a private Maine hotel to cancel an appearance by conservative speaker Michelle Malkin. If true, this is a disturbing development from Maine’s public, land-grant university,” she blasted. “All universities—but especially those that receive public funds—have an obligation to foster free speech and free inquiry. I support President Trump’s recent executive order on campus free speech. … I am disturbed that academic elites would interfere to block this speech. For those who disagree with Malkin’s views, the answer is debate and discourse, not censorship.”
My upcoming speaking schedule (for now) includes the New York Young Republican Club (Jan. 16); somewhere, hopefully, in Maine (Jan. 17); Liberty Forum of Silicon Valley (Feb. 11); Michigan Conservative Coalition’s Battle Cry 2020, Troy, Michigan (Feb. 14); Arizona State University (Feb. 26); and San Diego State University (April TBD).
A total of six organizations have now deemed me such a public menace that I’ve been barred from speaking at their venues or events: Mar-a-Lago (canceled by the Trump Organization after complaints by the Southern Poverty Law Center spread by left-wingers at the Miami Herald); Bentley University; the University of Minnesota (canceled at the behest of national leaders of the Committee for a Constructive Tomorrow); the New Jersey Right to Life Committee; an Indiana conservative group; and Young America’s Foundation.
Why is this censorship campaign from both sides of the political spectrum happening? University of Maine College Republican Jeremiah Childs astutely observed: “They’re doing this to delegitimize us because we’re popular.” Popular, peacefully expressed ideas that threaten establishment empires in both parties must be stopped. The pretense of free inquiry and association must be propped up by the tolerance hypocrites on the left and the culture warrior poseurs on the right. The illusion of “free speech” must be maintained by the keepers of the gate. Lying is lucrative. Telling the truth, controlled by no one, only gets you grief.