Washington's spies

Before FISA, there really were no limits on what could be intercepted by intelligence agencies. This was abused over and over again, usually by the FBI, which used national security as a reason to intercept phone conversations of pretty much anyone who was thought to present some kind of a threat.

Even at the time FISA passed, though, civil libertarians were warning that there was little real protection against the Government using the information they collect maliciously. The problem goes back to the basics: you need to make sure that the people with access to the collected data were thoroughly checked and could be trusted.

In the United States, though, there’s a significant loophole, called “an election.”

Necessarily, when we elect a president, the president has complete access to any data — the president is the authority who decides what data is to be protected, and with what rigor. The president’s political appointees, just as necessarily, must have the same access. Our only real protection from illicit disclosure by these insiders is the degree to which they can be trusted. An unscrupulous political appointee on the president’s national security staff can obtain anything and leak anything.

In the Obama administration, scruples about information security were notably lacking. We saw it with the Clinton emails, where information security procedures were openly flouted, and where, frankly, multiple felonious violations of the espionage went unpunished.

And we’re seeing it now: Susan Rice, and probably a number of others, violated the provisions of FISA, and certainly, with no reasonable doubt violated the privacy of at least one U.S. Person.

FISA is coming up for renewal not too long from now, and FISA’s opponents have got a new and very strong argument that the government cannot be trusted with the power to intercept U.S. Persons communications.

If FISA were eliminated, the U.S. would lose a valuable tool — we really do need to be able to intercept communications within the U.S., for both state and non-state (read “terrorist”) actors. But for Americans to be able to trust their government with these surveillance powers, we have got to be able to trust that unscrupulous political appointees are deterred, and that illicit actions will be punished.

Yes, political abuse is always the threat, and when it’s not punished it becomes a much greater threat. And Charlie’s right that if there’s no accountability here, it’s going to be much harder to muster support for keeping FISA.

Glenn Reynolds on charlie Martin on Team Obama's spying on political opponents.