Better in their words…

WSJ 3/7/2017

Robert Bork saw it all coming.

Not, of course, today’s clash of recriminations, between a sitting Republican president who’s accused his Democratic predecessor of having tapped his phones even as the other side accuses this same Republican’s campaign team of having colluded with Moscow to steal the November election. For all his wisdom, the late judge and onetime Supreme Court nominee could not have predicted this.

What Bork did appreciate, and more keenly than almost anyone else at the time, is that the Foreign Intelligence Surveillance Act at the root of this mess—i.e., whether or not there were such warrants on Donald Trump or his associates— was not a reform but an abuse. He outlined his objections in a prescient op-ed for this newspaper on March 9, 1978, shortly before the Senate passed the bill. In particular, he argued, the courts set up by this law would work to obscure the responsibility the “reform” was meant to ensure: “When an attorney general must decide for himself, without shield of a warrant, whether to authorize surveillance, and must accept the consequences if things go wrong, there is likely to be more care taken. The statute, however, has the effect of immunizing everyone, and sooner or later that fact will be taken advantage of.” In other words, if administration officials could not hide behind court approvals, they would think long and hard about their surveillance decisions.

Thirty-nine years later, on the biggest story of the day, no one is even clear about exactly what happened. We don’t, for example, know whether there was a FISA warrant for Mr. Trump or any members of his campaign team. Notwithstanding all the innuendo, we also don’t have any evidence the Trump team collaborated with the Russians to influence the election.

Each side is demanding hearings. But in today’s Washington, neither is likely to get a satisfactory accounting. In the midst of all the shouting, it’s worth taking a step back and reviewing the present crisis in light of Bork’s warnings back when this law was passed.

Like so much else America would have been better off without—the Education Department, federal subsidies for ethanol, the idea that there are limits to growth—FISA and the courts it created are a legacy of Jimmy Carter. The legislation, introduced by Sen. Ted Kennedy in 1977, was a byproduct of the Church Committee hearings into intelligence abuses and the general anti-Nixon fever. The animating idea was to clip a president’s wings by introducing judges into the surveillance equation.

Bork characterized it as “moralistic overreaction.” Not only would these courts infringe on a president’s surveillance authority—which for nearly two centuries had been deemed part of a president’s national-security powers as commander in chief—judges lacked the skills and experience “to make the sophisticated judgments required.” If they responded by deferring to those who do, Bork noted, they would raise other questions about what their oversight really amounted to. Bork further argued that “the law would almost certainly increase unauthorized disclosures of sensitive information simply by greatly widening the circle of people with access to it.” How timely that seems today. Just ask Mike Flynn, the national security adviser who saw classified parts of his private conversations with the Russian ambassador leaked.

On the left there is great distrust of the FISA courts, which grew after 9/11 and the Bush administration. But the preferred progressive “solutions” are generally things that would make the process even more cumbersome. Some, for example, hope to introduce into the FISA process an advocate to challenge the government as it makes its case.

Once again, the Bork approach is more promising. As he pointed out, the intelligence abuses that led to FISA “were uncovered through existing processes of investigation.” This process contributed to President Nixon’s resignation. And if he hadn’t resigned, he would have been impeached.

Andrew McCarthy, a former U.S. attorney who has written three pieces for National Review on the latest in the Trump wiretap charges, argues, with Bork, that the Constitution’s primary solution for government failure and overreach is political accountability to the American people. Progressives are not nearly as enthusiastic, partly because the modern left prefers the unelected to the elected, and partly because they don’t really trust the people.

It would be nice to think we’ll eventually get clear answers from whatever investigations emerge. In the meantime, we could do worse than return to Bork’s original concerns about a system that establishes “a group of judges who must operate largely in the dark and create rules known only to themselves.”

Surely it says something about where we are today that the ideal reform—to abolish the FISA courts altogether—is unlikely because presidents and lawmakers of both parties are unwilling to challenge an arrangement that fuzzes up accountability even as they complain about it.

Write to McGurn@wsj.com.