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Washington Has a Dangerous Obsession With Secret Courts

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Article One, Section 9, clause 2 of the United States Constitution states, “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.”

It says something about the importance of that clause that, to this day, the right of habeas corpus has been suspended only twice in criminal cases: once in the case of Abraham Lincoln’s prosecution of the Civil War (rebellion), and once in the case of detaining suspected terrorists during the Bush administration (which, at least in theory, was tied to preventing something like invasion). In other words, the idea of using secret courts to try citizens without their having any knowledge of their accuser, or of the charges and evidence, is fundamentally un-American, and our criminal law has broadly reflected that, in a remarkable show of consistency across our multi-century history.

But there’s a wrinkle: habeas corpus has only remained that foundational to American government in the realm of explicit criminal prosecutions. When it comes to intelligence gathering, civil suits, and regulatory actions, the results are far murkier. If nothing else, the recent Inspector General’s (IG) report on the FBI’s actions during the 2016 election has laid bare how much the principle of habeas corpus has been abandoned when the so-called “intelligence community” thinks it needs to act first and ask questions later.

Let’s not mince words: while the report has been spun endlessly either as a win or loss for President Trump, it is devastating to the entire FISA system. And, to their credit, FISA judges are incensed by its findings. Why not? Those findings reveal an FBI that is willing to downplay, misrepresent, and flat out ignore evidence in order to get judges to grant warrants for any actions it wants to take, even going so far as to simply not talk to other intelligence agencies in order to supplement their findings. In the case of former Trump foreign policy adviser Carter Page, this point would’ve been especially important, because the CIA could have told the FBI that Page,........

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