Abolish FISA, Reform FBI, & Break Up CIA

This is the first in The American Mind’s new Rethinking Policy series. Throughout 2020 we are publishing essays that boldly reframe, reorder, and reprioritize our political goals in order to directly address the real challenges of our time. These essays are intended to spur clear, sharp discussions that rid us of obsolete ideological frameworks and point towards viable paths forward. Amid today’s realignment, we must discern and articulate vital principles and national purpose free of the ideological encumbrances of the past. —Eds.

America’s Intelligence agencies are the deep state’s deepest part, and the most immediate threat to representative government. They are also not very good at what they are supposed to be doing. Protecting the Republic from them requires refocusing them on their proper jobs.

Intelligence officials abuse their positions to discredit opposition to the Democratic Party, of which they are part. Complicit with the media, they leverage the public’s mistaken faith in their superior knowledge, competence, and patriotism to vilify their domestic enemies from behind secrecy’s shield.

Pretenses of superior knowledge have always tempted the Administrative State’s officials to manipulate or override voters. Hence, as Justice Robert H. Jackson (who served as chief prosecutor of the Nuremberg trials) warned, they often turn their powers against whomever they dislike politically, socially, or personally and try to minimize the public’s access to the bases upon which they act.

But only the Intelligence agencies have the power to do that while claiming that scrutiny of their pretenses endangers national security. They have succeeded in restricting information about their misdeeds by “classifying” them under the Espionage Act of 1921. Thus covered, they misrepresent their opinions as knowledge and their preferences as logic. Thus acting as irresponsible arbiters of truth at the highest levels of American public life, they are the foremost jaws of the ruling class vise that is squeezing self-rule out of America.

As Senator Charles Schumer (D-NY) truly told President Trump, “Let me tell you, you take on the intelligence community, they have six ways from Sunday at getting back at you.” As we shall see, Intelligence officials have proved Schumer correct.

What follows begins with an overview of the threats today’s intelligence agencies pose to self-government in America.

Next, it touches on U.S. intelligence’s dismal professional record, and suggests that the measures needed to refocus them on professional performance would also separate them from domestic politics.

In sum, we find:

CIA is obsolete. Cables show agents’ intelligence takes are inferior to diplomats’. Agent networks are unprotected by counterintelligence. FBI success at counterintelligence ended when the Bureau was politicized and bureaucratized in the 1970s. CIA bottlenecks and incompetently controls strategic intelligence, while the Army and Marines show demonstrable tactical superiority.
As a result, CIA is ideologically partisan. Its strength is in leading or joining domestic campaigns to influence public opinion. FBI has followed suit.
Senior intelligence officials were the key element in the war on Donald Trump’s candidacy and presidency. CIA used meetings that it manufactured as factual bases for lies about campaign advisors seeking Russian information to smear Hillary Clinton. Intelligence began formal investigation and surveillance without probable cause. Agents gained authorization to electronically surveil Trump and his campaign and defended their bureaucratic interests, sidelining Lieutenant General Michael Flynn and denying or delaying Trump appointments and security clearances.
Partisanship produces failure. FISA has incentivized political abuse. “Profiling” has failed repeatedly in high-profile cases like the Atlanta Olympics bombing and the anthrax mail attacks. Perjury trapping has become commonplace.

Finally, we outline the steps that presidents and Congress might take to improve matters:

FISA must be repealed legislatively or through Constitutional challenge in court. It unconstitutionally mingles judicial and executive power in secret. It gave Intelligence a blank check. Hardly “an indispensable tool” for national security, it is now indispensable for partisanship. Broad consensus exists for a legislative “fix,” but none is possible. The secret court’s existence, the heart of the law, allows partisan bureaucrats and allied judges to do what they want in secret.
Functions currently performed by CIA should be sheared down. Data infrastructure and consultant networks should be eliminated. Bipartisan opposition to the Intelligence threat should use fierce resistance and lobbying from Intelligence as evidence of why cuts are in the national interest.
CIA must be disestablished. Its functions should be returned to the Departments of State, Defense, and Treasury. FBI must be restricted to law enforcement. At home, the Agencies are partisan institutions illegitimately focused on setting national policy. Abroad, Agencies untied to specific operational concerns are inherently dangerous and low-value.
Intelligence must return to its natural place as servant, not master, of government. Congress should amend the 1947 National Security Act. The President should broaden intelligence perspectives, including briefs from State, Defense, and Treasury, and abolish CIA’s “covert action.” State should be made responsible for political influence and the armed services for military and paramilitary affairs.

Sword and Shield

Roughly one third of the U.S government’s $80 billion annual budget for intelligence is devoted to the military’s “Intelligence-Related Activities.” These are technical programs to surveil military targets and connect the information to weapons. Generally speaking, their focus ensures their usefulness. Professional and political dysfunction, however, are rife in the other two thirds, the “National Intelligence Program.” This is our subject.

Intelligence is an instrument of conflict. It is knowledge (or pretense thereof) that can help one force or team at the expense of another. But the gathering and management of secret information naturally tempts those in charge of it to marshal truths or lies to hurt competitors within their own side as well. That is why prudent statesmen have curbed such temptations by subordinating Intelligence to government operations that deal with foreigners.

By nature, Intelligence is not independent. It is a function defined by the operations it serves. That is why wise statesmen have considered Intelligence agencies that are un-tied to specific operational concerns to be inherently dangerous, as well as not so useful in foreign and military affairs. When the U.S. established CIA as an agency responsible only to the president, it broke new ground. Nothing concerned the authors of the 1947 National Security Act that established it so much as preventing it from interfering in domestic matters.

Yet, ab initio, CIA’s founding generation concerned itself with making national policy, arguably more than with anything else, and transmitted that concern to its successors. Today’s meddling in elections and trying to overturn their results is a logical consequence.

Police Intelligence is analogous. Statesmen manage its temptations by keeping it focused on crimes defined by law. Until the 1960s, the FBI’s focus on investigating violations of statutes, and the “cop mentality” with which it dealt with national security issues, limited its interference in politics to gathering bits of dirt on politicians. By the 1970s, however, the FBI was joining CIA in supporting the causes and prejudices of its political homologues.

Today these Agencies’ naked threat to the president of the United States, conveyed by the opposition party’s leader, shows a power grab so big that, unless crushed, it puts them on the path trod by the Roman Empire’s Praetorian guard. Like the Roman Emperor’s supposed guardians, they claim to protect the City. But, as Attorney General William Barr noted, they have come to identify “the national interest with their own political preferences,” feeling that “anyone who has a different opinion” is somehow “an enemy of the state.” They now support their party in seizing power, “[convincing] themselves that what they’re doing is in the higher interest, the better good.”

In short, CIA and FBI have become instruments of partisan power.

None of this, of course, has anything to do with the natural, proper functions of Intelligence.

The Soviet Cheka (KGB), the Nazi Gestsapo, the Chinese Communists’ Intelligence service (which they called “the teeth of the dragon”) as well as their contemporary epigones, are not about knowledge—not even about discovering who the regime’s enemies are. They are weapons—what the Soviets called the Party’s “sword and shield,” made to hurt whomever the Party designates as enemies. Because the power to hurt people unaccountably is tyranny’s quintessential tool, competent tyrants limit such agencies’ powers by periodically purging them.

Power in America

Although a growing amount of the U.S. Intelligence agencies’ power comes from the kind of identification with the ruling party and class that is characteristic of totalitarian regimes—media, judiciary, etc.—in America it is ultimately founded on the public’s, especially the conservative sector thereof’s, acceptance of them as expert, impartial, brave public servants.

Changing that perception is prerequisite to any and all reform.

The U.S. Intelligence agencies’ record shows that they are the opposite: professionally incompetent and politically dysfunctional. That record’s exposure, demystifying Intelligence, would make it possible to return the Agencies to their natural, proper functions.

To firmly subordinate foreign Intelligence to military and diplomatic operations we must disestablish CIA and return its functions to the Departments of State, Defense, and Treasury. Since the FBI’s involvement in politics—and especially its justification thereof—also follows to some extent from its involvement in foreign affairs via anti-terrorism, re-establishing the distinction between Intelligence and law enforcement is essential. We must also repeal some of the laws and regulations that lately have empowered the Agencies’ misbehavior, notably the 1978 Foreign Intelligence Surveillance Act.

All this is now possible because, in recent years, the Agencies’ behavior has raised opposition on the political Right as well as on the Left.

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