Two decades after 9/11, Congress must restore FISA to its original purpose

This month, we commemorated the devastating terrorist attacks of Sept. 11, 2001. It was one of the major crises of American history, right up there with the attack on Pearl Harbor and the attack on Fort Sumter. Each of these attacks created a crisis and led to a war: the Civil War, World War II and the War on Terror.

In the sometimes panicky response to those crises, even the greatest leaders have given in to solutions that threaten our liberties. And 9/11 was no different.

Fort Sumter was attacked on April 12, 1861, and in that same month President Abraham Lincoln ordered that the writ of habeas corpus be suspended. This writ traces back to the 1215 Magna Carta. Article I of the Constitution, which concerns the limits and powers of the Congress, states in Section 9 that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The writ requires that the government show cause before a judge for someone’s arrest or detention.

Numerous people were arrested based on Lincoln’s orders, including one John Merryman, who was confined to Fort McHenry. On May 26, 1861, Supreme Court Chief Justice Roger Taney, then sitting as a circuit court judge, issued a writ of habeas corpus ordering Fort McHenry’s commander to appear in the circuit courtroom along with Merryman to explain the reasons for Merryman’s detention. 

The Fort’s commander and Lincoln defied Taney’s order. In June 1861, Chief Justice Taney, in ex parte Merryman, ruled that the power to suspend habeas corpus is reserved by the Constitution to Congress, and thus Lincoln’s order was unconstitutional.

Pearl Harbor was attacked on Dec. 7, 1941. In the febrile aftermath of that crisis, racism erupted against Japanese Americans. President Franklin Roosevelt was also under pressure from military and political leaders to do something about fears of further Japanese attack or sabotage on the West Coast. So, on Feb. 19, 1942, Roosevelt signed Executive Order 9066, ordering the forced removal of resident “enemy aliens” from parts of the West described as military areas around cities, ports and industrial sites. Thus Japanese immigrants and their descendants, many of them American citizens, were rounded up and placed in prison camps for the duration of the war.

Twenty-two years ago America was attacked again, leading to the “War on Terror.” Perhaps now, with that distance in time, we can see the mistakes made under the pressure of that crisis.

Congress had passed the Foreign Intelligence Surveillance Act (FISA) in 1978, in an effort to establish a legal framework for gathering intelligence on foreign entities in the U.S. After the attacks of Sept. 11, 2001, Congress repeatedly amended FISA, most notably with the Patriot Act. While originally FISA limited the federal government’s surveillance capabilities to foreign actors, the Patriot Act expanded FISA to put U.S. persons under its preview.

In criminal cases, the burden of proof for a search warrant typically requires probable cause, which is based on “a reasonable belief…that a crime has occurred or is about to occur.” In a FISA application, there needs only to be an assertion that something is relevant to a national security investigation.

Thanks to the work of Special Counsel John Durham, we now see that FISA was used against a U.S. citizen, Carter Page. Former Attorney General William Barr has correctly characterized as “malfeasance and misfeasance” the abuses identified in the Carter Page investigation.

Yet, in speaking with congressional leaders, Barr urged them to keep this “important tool” as they contemplate reforms to FISA. Yes, but let’s keep this tool for its original purpose: to gather intelligence on foreign agents, not to spy on Americans.

The fundamental need is to return FISA to its original purpose of surveilling foreign agents for intelligence purposes, thus preventing abuses against Americans as we as saw with Carter Page.

Robert S. Mueller had been the director of the Federal Bureau of Investigation only a matter of days when the 9/11 attack occurred. For reasons that might have seemed justified at the time, Mueller resolutely set about to change the “culture” of the FBI. That’s the word he used. He was going to make the bureau into an intelligence agency, or in his repeated terminology, an “intelligence driven” organization. Unintended consequences followed. The organization I had served for 33 years would undergo a cultural change in subsequent years, culminating in the ugly disaster of Crossfire Hurricane, the fruitless but disruptive investigation of the Trump campaign and Russia.

After the Civil War, a new Supreme Court validated Justice Taney’s ruling against Lincoln. In a different case, it held that only Congress can suspend habeas corpus, and that civilians are not subject to military courts even in times of war. Forty years after the internment of Japanese Americans, a congressional commission determined that those held in the camps had been victims, and each camp survivor was awarded $20,000 compensation from the U.S. government.

We can’t do anything for those Americans like John Merryman who were detained without judicial process so long ago, nor can we likely do anything more for our fellow Japanese-American citizens who lost so much.

But we can and we must reform the misguided moves made after 9/11, which threaten the constitutional rights of all U.S. citizens.

Thomas J. Baker is author of “The Fall of the FBI: How a once great agency became a threat to democracy.”