Our government must make transparent, good-faith efforts to police itself, or risk losing legitimacy in the public’s eyes.
Editor’s Note: The following is the written testimony submitted by Mr. McCarthy in connection with a hearing earlier today before the House Permanent Select Committee on Intelligence on the Mueller Report (specifically, the first volume of the report, which addresses Russia’s interference in the 2016 campaign, as to which Special Counsel Mueller found no conspiracy between the Trump campaign and the Kremlin). The hearing was broadcast on C-SPAN, here.
Chairman Schiff, Ranking Member Nunes, members of the Committee, thank you for inviting me to this morning’s hearing.
I served as a federal prosecutor for nearly 20 years, almost all at the Office of the United States Attorney for the Southern District of New York, from which I retired in 2003 as the chief assistant U.S. attorney in charge of the Southern District’s satellite office in White Plains. I’ve also done a short stint working on an independent-counsel probe, and for several months in 2004, I was a consultant to the deputy secretary of defense while the Pentagon was grappling with various legal issues after the onset of post-9/11 military operations. During my years as a prosecutor, I was honored to receive the Attorney General’s Distinguished Service Award in 1988 and the Attorney General’s Exceptional Service Award in 1996 for my work on international-organized-crime and international-terrorism cases.
Since leaving government service, I have been a writer and commentator. I am appearing this morning in my personal capacity as a former government official who cares deeply about our national security and the rule of law.
For most of my first several years as a prosecutor, my work focused on international organized crime. After the World Trade Center was bombed on February 26, 1993, I spent much of the last decade of my tenure working on national-security investigations. I am proud to have led the successful prosecution of Sheikh Omar Abdel Rahman and eleven other jihadists for conspiring to wage a war of urban terrorism against the United States, which included the Trade Center attack, a plot to bomb New York City landmarks, and other plots to carry out political assassinations and terrorist strikes against civilian populations. In that effort, I was privileged to work alongside a superb team of federal prosecutors, support staff, and investigators assigned to the FBI’s Joint Terrorism Task Force.
It was in connection with that investigation that I became intimately familiar with the FBI’s counterintelligence mission, and the powerful tools that the Constitution and federal law make available for the execution of that mission. While it escapes the attention of many Americans, who know the bureau as the nation’s premier law-enforcement agency, the FBI is also our domestic-security service.
That is a purposeful arrangement on our government’s part, and I believe a prudent one. Most of our intelligence services focus on the activities of foreigners outside the United States that could threaten American interests. Their work is essential, but it is frequently dangerous and often occurs outside the writ of our laws and courts. We want our domestic security to be safeguarded by an agency that is both highly professional and at all times beholden to our Constitution and laws. The FBI fits that bill.
In some nations, the law-enforcement and domestic-security functions are handled by separate agencies. Our government’s theory, to the contrary, has been that housing them under the same bureaucratic roof allows these missions to be carried out more efficiently in that they support one another more easily. This is a sound theory, and I have seen how effective it can be when the FBI’s counterintelligence mission is leveraged not only by the Bureau’s criminal division and federal prosecutors, but also by the force multiplier that is the combination of state law-enforcement agencies and the public at large. In the aftermath of the 9/11 attacks and the spate of 1990s atrocities that preceded them, cooperation and information-sharing between the federal government and state agencies, and the cooperation among federal agencies themselves (particularly intelligence agencies), have become far superior to what they were when I started working on these matters a generation ago.
There is an implicit understanding in our law: The awesome powers vested in our security agencies must not be used pretextually to carry out law-enforcement functions. This was the major controversy we dealt with in the 1990s. The infamous “Wall” imposed by internal Justice Department guidelines, which had the effect of impeding cooperation between intelligence and law-enforcement investigators, was unwise policy driven by good intentions. The idea was to ensure that agents who lacked an adequate factual predicate to use criminal-law investigative techniques would not do an end-around on the Constitution by conjuring a national-security angle that would justify resort to foreign counterintelligence authorities — such as warrants issued under the 1978 Foreign Intelligence Surveillance Act (FISA).
Law enforcement involves serious intrusions on our most fundamental freedoms — liberty, privacy, in some instances even life. Consequently, our law builds in due-process presumptions and protections to safeguard Americans. Search, arrest, and eavesdropping warrants, for example, may only issue based on probable cause that a crime has been (or is being) committed.
FISA bypasses important Fourth Amendment safeguards. Our law permits this for two reasons. First, the objective of a counterintelligence investigation is not to build criminal prosecutions but to collect information. Second, the “target” of a counterintelligence investigation is a foreign power that threatens U.S. interests. Consequently, the typical counterintelligence scenario is not an effort to gather evidence against an American in order to arrest, indict, convict, and imprison that American.
Nevertheless, FISA does endeavor to give an American suspected of being a foreign agent some protections. A warrant may not issue unless the FBI and Justice Department demonstrate probable cause to believe the American is knowingly engaged in clandestine activity. The relevant FISA statute (50 U.S. Code, Section 1804(b)(2)) does not quite require probable cause of a crime; but it calls for something very close — a showing that the suspected activities may involve a violation of criminal statutes. To underscore that the required showing calls for a demonstration of grave and willful conduct, the statute speaks of taking direction from foreign powers to commit criminal offenses, engaging in such activities as sabotage or terrorism, or intentionally using false identities specifically on behalf of a foreign power — which, of course, makes more serious clandestine activity possible.
There has been some expert commentary and testimony over the last few years about the threats posed by Russian espionage, addressing the fact that Russian intelligence services attempt to coopt or dupe Americans into providing assistance. This is, indeed, a serious threat. It is noteworthy, though, that it would not be an adequate basis for a surveillance warrant against the unwitting American. Our law requires a showing of purposeful action on the foreign power’s behalf against our country.
It is also worth noting that our law calls for electronic surveillance to be something like a last resort because it is such an intrusive investigative technique — the monitoring of all a person’s communications, by telephone, email, text, and the like. Whether we are talking about criminal or counterintelligence investigations, the law requires the FBI and the Justice Department to satisfy the court that alternative investigative techniques have been tried and have failed, or would surely fail if tried. For example, a warrant would not be justifiable if investigators had the ability to conduct productive interviews with the subject, or if the investigators had other ways of drawing information from the subject, such as the infiltration of an informant.
I mention these aspects of surveillance to highlight that, even in normal circumstances where no extraordinary public interests are at stake, our law permits counterintelligence monitoring of Americans only reluctantly, and only on a strong showing that they truly are involved in nefarious activities on behalf of a foreign power.
Obviously, 2016 was not a normal circumstance in that regard. It involved the extraordinary public interest of a campaign for the presidency. We have an important norm in the United States against the use of the government’s investigative authorities, very much including its foreign counterintelligence powers, to monitor the political opposition of the incumbent government. This norm is salutary fallout from the political-spying misadventures of the 1960s and 1970s.
There are some commentators who recoil at the terms “spying” and “political spying.” There are others who suggest that, because of the negative implications investigations could have for our capacity for self-governance, a political campaign should be immune from surveillance. I have never fallen into either of these camps.
Spying is simply the covert collection of information. If the government is doing the spying, the issue is not what term we use to describe it but, rather, whether the government had a lawful basis and an appropriate factual predicate for it.
Our nation has a relatively recent history of political-spying episodes from which…