..."national security against foreign powers is not a fit responsibility for police agencies and courts."

In the Washington Examiner, Andrew McCarthy writes,

...The immense powers wielded by our law enforcement and intelligence apparatus are essential to protecting the United States. The agencies that wield them, as currently constructed, are not.

...If the FBI and the courts are doing national security, they are necessarily practicing politics. Arms of government that make political determinations cannot properly be independent of political oversight and accountability.

...I’ve always believed the FBI could handle these related but different responsibilities. History proved me wrong. The bureau arrogantly insists on independence from political oversight not just in criminal cases but even when it is carrying out national security functions. It wants a free hand to act and even make policy judgments in the political realm, but it demands insulation from political accountability.

FISA was a well-meaning effort to give a modicum of due process to Americans suspected of acting as foreign agents. In point of fact, it does not provide meaningful due process because it cannot replicate the adversarial search for truth that is the hallmark of judicial proceedings. The FBI and Justice Department appear ex parte before the court; the surveillance subject cannot be effectively represented, and the proceedings are classified, so the expectation is that no one will ever check the executive’s representations. This is unlike criminal cases, which lead to prosecution, discovery, and significant legal consequences if government agents duped the judge into granting warrants.

...And now, with the Trump-Russia investigation, we’ve witnessed the abuse of power many FISA critics predicted for decades: the pretextual invocation of FISA surveillance powers to conduct a criminal investigation for which the investigators lack a criminal predicate — in this instance, the hunt for some crime that might render Donald Trump unelectable or removable. Worse, and quite naturally, the abuse has happened in a political context: the incumbent Democratic administration using the threat posed by a hostile power, Russia, to rationalize foreign counterintelligence surveillance of the opposition party’s political campaign, an abuse that continued for two years and impeded the Trump administration’s capacity to govern.

The FBI should be relegated to the investigation and prosecution of crime. The bureau excels in executing its law enforcement duties and can be trusted to operate with minimal political supervision because the criminal justice system features transparent judicial oversight. The foreign counterintelligence mission should be transferred to other intelligence community components and subjected to beefed-up congressional regulation and oversight. FISA should be repealed, with the courts returned to their judicial role of providing a forum for those injured by governmental overreach, rather than aiding and abetting in the overreach.

Much more rethinking of the intelligence community needs to be done. The Claremont Institute’s Angelo Codevilla, an insightful and provocative intelligence expert, argues the CIA is obsolete, politicized, and counterproductive. He would assign foreign intelligence responsibilities to the departments that carry out national defense and foreign relations missions — mainly, the Defense and State Departments — tailoring the gathering of intelligence to the practical needs of these missions. This would strip down the so-called “deep state,” a leviathan that warehouses mountains of intelligence to the detriment of our liberties and with dubious benefits to our security. Codevilla would also repeal FISA.

His ideas are worth exploring. What is already clear, however, is that national security against foreign powers is not a fit responsibility for police agencies and courts. Assigning it to them is a failed experiment: a temptation to intrusive surveillance of innocent citizens and politicized law enforcement. We should end the experiment before the public, in its frustration over the lack of accountability, clips the powers vital to our national defense.

Read more here.