As a member of the House Intelligence Committee, I am briefed on a seemingly endless list of threats to our homeland.
When the Trump administration’s contest with Iran heated up, urban police departments recalibrated the danger of terrorist attacks from Iranian surrogates. North Korea aspires to threaten our cities with nuclear-tipped missiles while having a sophisticated ability to punish U.S. corporations through cyberattacks. China is relying on a wide-ranging program to train visiting scientists, businesspeople, and students to steal industrial, technological, and military secrets across the United States, all with the goal of becoming the single dominant power in the world. Russia deployed its first hypersonic missile against the U.S. while continuing to roil our politics with disinformation. Technological developments have left us vulnerable in ways most can’t even imagine, with bytes of electrons able to destroy much of modern society in the blink of an eye.
And don’t forget al Qaeda and the Islamic State. Like deadly viruses, they are weakened but still potentially lethal.
In such an environment, we need effective tools to counter these threats, as well as terrorists and spies. Now, more than ever before, the intelligence agencies need the support of the public.
Why, then, do powerful government agencies continue to act in ways that antagonize American citizens while jeopardizing their trust? Just when that community needs a free hand to go after bad actors, it undermines its core mission through sloppiness, overreaching, and sometimes a disregard for the Constitution. By doing so, these agencies threaten to bring down on its head a new version of the Senate’s last wide-ranging investigation of U.S. intelligence.
Call it a Church Committee 2.0 — something we want to avoid.
Retired National Security Agency, CIA, and FBI officials remember well the searing experience that investigation had on their operations. In 1975, Sen. Frank Church dragged out dirty laundry before the klieg lights of a Senate hearing room — from domestic political surveillance to LSD mind experiments on hapless victims to covert assassination programs.
Some of what the Church Committee revealed needed airing. Importantly, it paved the way for the 1978 enactment of the Foreign Intelligence Surveillance Act, which governs national security surveillance. (Imagine what former FBI Director James Comey and his crew might have done without these constraints?) But few would dispute that the process disrupted operations and hurt agents’ morale. Some believe it compromised operations and the effectiveness of U.S. intelligence for years.
In the aftermath of the Sept. 11, 2001, attacks, the Bush administration and Congress chose to reinvest extraordinary trust in the agencies, believing the post-Church agencies would approach their duties with restraint and professionalism.
Then came the Snowden leaks revealing that NSA was hoovering up phone records. From the conservative Rep. Jim Sensenbrenner to the liberal Sen. Patrick Leahy, members of Congress were accusing the agencies of acting outside the Constitution.
The result was the USA Freedom Act of 2015, meant to add constitutional guardrails to intelligence programs.
But apparently, that was not enough. Since then, much has happened.
The secretive FISA court revealed that the FBI had improperly searched supposedly foreign surveillance data for information about U.S. persons, including searches on FBI employees and one agent’s relatives.
In hearings before the House and Senate Judiciary Committee, intelligence community lawyers asserted that they do not need probable cause warrants to review business records, including medical records and video from doorbell cameras.
Then, in December, came the motherlode: The Department of Justice inspector general found that the FBI made 17 serious errors in using FISA powers to surveil an associate of a presidential campaign. In one instance, an FBI lawyer maliciously manipulated evidence that was then submitted as sworn testimony before the court.
Those who abused their power need to be held accountable for their actions. But while we wait for legal proceedings to move forward, we need to address the underlying deficiencies in the law.
This is why I have put forward a bill in the House that would protect the constitutional rights of any U.S. person before the FISA court. For example, the bill would require secret courts to expand the use of amici, or advocates, to protect the rights of U.S. citizens. It requires a transcript of court proceedings so we can know if FISA judges completed reasonable diligence. It also enhances penalties for improper actions before the court.
Federal agencies should welcome these reforms or risk a reckoning that will paralyze them when we need them most.
Rep. Chris Stewart, a Republican, represents Utah’s 2nd Congressional District. He serves on the House Permanent Select Committee on Intelligence.
