Morning Wire - How to Fix the FBI | Saturday Extra

Episode Date: July 15, 2023

Growing distrust of the FBI has led to increasing calls for its immediate reform. But who can fix the FBI and how? In this episode, we speak to the author of a new report that details not only why many Americans now view the FBI as “an adversary of freedom,” but some specific ways it could be significantly reformed. Get the facts first on Morning Wire.     Learn more about your ad choices. Visit podcastchoices.com/adchoices

Growing distrust of the FBI has led to increasing calls for its immediate reform, particularly with the aim of ensuring that it will not be weaponized for political purposes, as critics say it has been. But if the FBI is to be reformed, what safeguards should be put in place and what would the process look like? In this episode, we talk with the author of a new report that details not only why many Americans now view the FBI as an adversary of freedom, but some specific ways it could be significantly reformed. I'm Daily Wire, editor-in-chief John Bickley with Georgia Howl. It's Saturday, July 15th, and this is an extra edition of Morning Wire.

Joining us now is Stephen Bradbury, distinguished fellow in the executive vice president's office at the Heritage Foundation. Welcome, Stephen. So in your report, you write, quote, there is good reason to rethink the entire idea of the FBI at a fundamental level. Let's start with the evidence for this conclusion. You say, quoting again, the executive branch's misuse of federal intelligence authorities gives Congress clear and compelling grounds for enacting forceful reforms. What are some examples of those misuses or abuses of the FBI? Well, thanks for asking.

Happy to be on. Our report lays those out in some detail. The first part of our report, which is entitled How to Fix the FBI, recites the record of abuses. And at this point, the evidence is mounting. We've seen the reports about the crossfire hurricane, the politicized investigation of the Trump campaign versus the protective treatment given to the Clinton campaign in 2016.

That's detailed even further in the Durham report. We've seen the Twitter files, revelations, about the FBI primarily, but also other federal agencies, monitoring the online speech of Americans and working with tech companies to suppress constitutionally protected speech. Really chilling. That's continuing to this day, a report from the weaponization committee in the House about the FBI doing exactly that with the online speech of Americans critical of the war in Ukraine. And then we've seen the FISA court, Foreign Intelligence Surveillance Act court, unsealing opinions in which it found that the FBI had improperly accessed national security database information to gather.

information about Americans with no national security purpose, clearly improper, done more than 278,000 times, according to the FISA court. So this body of evidence, very concerning, is mounting. There are other instances I could detail, which we lay out in our report. As a result of that, there's a lot of people in Congress on Capitol Hill in policy circles in Washington calling for a fundamental rethink of the FBI, starting over from scratch, building a new agency, or at a minimum, making some fundamental reforms that are necessary as a condition of reauthorizing these intelligence tools. Yeah, let's get into some of the specifics that you discuss in your report. You say that Congress should define the scope of the FBI's jurisdiction, refocus its mission on traditional

law enforcement, and put it under effective control. Can you unpack that for us? First, how should Congress better define the Bureau's jurisdiction? Yeah, in the middle part, second part of our report, we walk through several important elements for what a reconstruction of the FBI might entail. And that's one of them. And by narrowing or focusing the jurisdiction, we mean, should the FBI continue to have jurisdiction to investigate and enforce every single federal crime that's on the book? you probably know that the scope and range of federal crimes is enormous these days.

No one person knows what all the federal crimes are on the books. A lot of different agencies have jurisdiction. Some agencies are the expert agencies with primary jurisdiction, for example, drug enforcement agency, alcohol, tobacco, and firearms for certain violations. There's a number of them we detail in our report. So one possibility would be FBI would no longer be the job. general all-purpose investigator, but would focus on those major criminal areas that are not covered by other federal agencies. Also, rethinking, does it need to be as broad as it is, or should it

focus on large conspiracies, organized crime, syndicates, interstate criminal activities that are beyond the reach of state and local law enforcement? That's sort of the traditional view of the federal jurisdiction, perhaps a rethink of the FBI should involve staking out more limited jurisdiction in that respect. And then a big question here is, should the FBI continue to have an intelligence gathering function? That's been a prominent part of its portfolio since the attacks of 9-11. Made a lot of sense in the days and weeks and months after 9-11 when we were trying to stop a follow-on attack. But does it need to have that same robust, prominent role for intelligence gathering today. What we've seen, unfortunately, is it's misused

those tools to target and track the activities, constitutionally protected activities of Americans with no basis to think there's been a crime or national security threat. And so probably Congress needs to take a hard look at reining that in, too. Right. We saw that with parents raising alarm about the policies at schools and then suddenly being named potential domestic terrorists. So this reining in of its role is what you mean in your report by refocusing the FBI's mission on law enforcement. What might that process look like? We're not in this report telling Congress exactly how to answer that question, but we are saying that's one of the major elements of reform that Congress really needs to take on in a serious way and consider. We walk through 11 different elements of what a reconstructed FBI might

entail. But then I just want to stress again in the third part of our report, we get very specific as to a particular set of minimum reforms that we think are necessary to stop the abuses and protect the liberties of Americans, whether or not Congress decides to take on the bigger project of reimagining the FBI from the ground up. Yeah, if you would, walk us through some of those recommendations. What minimal steps need to be taken here? So the first set of those focuses right in, on FISA, the Foreign Intelligence Surveillance Act. We see from the Durham report, and prior to that, the Inspector General report from December 2019, that in the Crossfire Hurricane investigation, the FISA authority was abused.

There was no adequate factual basis to ask the FISA court to approve the order to do foreign intelligence surveillance under the FISA authority on Carter PAYA. part of the crossfire hurricane investigation of so-called Russia collusion with the Trump campaign. There was not an adequate factual basis. The Durham report has underscored that in a very damning way. So there needs to be a fix to how Pfizer was abused in that case. In addition, as I mentioned, the Foreign Intelligence Surveillance Court has unsealed and published report showing that the FBI has improperly dipped into a national security database, which is very sensitive.

This is the data that's collected under Section 702 of FISA. This is a broad, powerful foreign intelligence collection tool. It is not surveillance that's approved by the FISA court on an individualized basis. It's a very broad program of surveillance. But the key is it has to be focused, not on Americans, but on foreigners,

non-U.S. persons, non-U.S. citizens, not permanent residents of the U.S. So foreign nationals who are located outside the United States or reasonably believed to be outside the United States. And you have to have procedures in place to ensure that it's limited in that way. And if you do that, if you have those procedures approved by the court, then the intelligence community of the United States can do surveillance on those foreign targets without getting individualized court approval. So it's a very broad, flexible tool. very important for national security, particularly if you're trying to defend the country from China, for example, or cartels overseas, other foreign threats like that. The problem is the surveillance is done on facilities in the U.S., and it often does collect a lot of communications of Americans. So there's a database collected under that power that does include private communications of Americans.

And what has been happening is the FBI has been dipping into that database whenever they have an interest in doing some background investigation on an American for purposes having nothing to do with national security. The FISA court reported that more than 278,000 times they improperly dipped into that database. And so one of the things we are recommending is that is a condition of re-approving, reauthorizing that Section 702 surveillance tool, which comes up for reauthorization at the end of this year. The Congress insists on isolating the FBI from the 702 program. So the FBI would no longer be allowed to dip into that database or participate directly.

If there's something that the intelligence community, other intelligence agencies see in the data that shows suspicious activity going on in the U.S., that information could be tipped to the FBI in an intelligence report and the FBI could follow up on it immediately using other investigation tools. And so we think it can be done consistent with national security interests. The FBI does not need to be an active participant in the 702 program. That's a big question. There's going to be a lot of pushback on that from the executive branch and the FBI, but Congress, we think, should take that up as a minimum reform. We have some other suggestions in our report for minimum reforms to stop the abuses and protect American liberties as a minimum set of things that should be done.

And what about transparency? Are there any actions Congress can take to compel the FBI to be more transparent with the American public? Yes, we have several suggestions along those lines. One suggestion is to put in place an inspector general for the FBI. They don't currently have one just for the Bureau. Another thing would be to require a Inspector General report that discloses all of the past instances when information about Americans was improperly gathered. And then the third requirement would be for the Attorney General to purge

all of that improperly collected data from systems and certify that it's been purged. So that's one thing that could be done. Another general structural thing is taking the FBI director and putting him within the chain of command of the Justice Department, subject to the supervision of the Attorney General and the president, remove some of the other functions from the FBI that they don't need to provide for themselves, like General Counsel's Office, Public Affairs, legislative affairs, Those things can be provided by main justice to FBI. This would take away some of the independence and sort of separate power center that you see with the FBI, and it would ensure that there's more oversight, more disclosure.

So there's a number of things that can be done, and we go through that list in some detail. Final question. Do you think this is actually possible? Is Congress likely to take any of these steps? Well, certainly there should be bipartisan support. Unfortunately, in Washington today, these issues get so politicized and there's such partisan rancor that what you do see is members on the other side of the aisle saying, oh, you only want these reforms for political reasons, for example, to protect Donald Trump and his campaign, etc. So unfortunately, I don't see a big prospect, but the need to reauthorize this important surveillance tool, Section 702, that has to be reauthorized by the end of this year or it will expire. that creates a real opportunity and leverage for Congress to insist on at a minimum,

a certain minimum set of reforms as a condition of reauthorizing 702. And then the bigger job of rebuilding the FBI could be continued on a longer-term timeline. And of course, if you get a new president in place who has a right approach to these issues and to reforming the FBI, that's really what you're going to need at the end of the day to make these things a reality. The significant role the FBI plays has never been so front and center for the American public. We'll see if these lawmakers take decisive action. Stephen, thank you so much for joining us.

Thank you. Take care. That was Heritage Foundation's Stephen Bradbury, and this has been an extra edition of Morning Wire.