With support from President Trump, Congress passed a bill to extend the Foreign Intelligence Surveillance Act (FISA) through April 30. The president seems to have forgotten FISA’s power to harm innocents, override the judiciary, and even threaten the executive branch. That invites a look back at how it all started.

Sen. Edward Kennedy introduced FISA in 1977, and in 1978, President Jimmy Carter signed the measure into law. FISA established a secret court at which only the government’s side was represented, a body with no parallel in American history. The act was intended to protect the nation, but it didn’t exactly work out that way.

FISA failed to prevent the massive bombing of the World Trade Center on Feb. 26, 1993, with six people dead, more than 1,000 injured, and billions in damages. FISA also failed to prevent terrorists from crashing hijacked airliners into the World Trade Center and Pentagon on Sep. 11, 2001. That attack, the worst on American soil since Pearl Harbor in 1941, claimed 3,000 lives, with countless injuries and damage enduring for decades.

As Sen. Arlen Specter noted, if FISA had obtained a warrant to surveil al-Qaeda militant Zacarias Moussaoui, the attack of Sep. 11, 2001, might have been prevented. It wasn’t, and the secretive FISA failed to prevent terrorist attacks at Fort Hood (2009), the Boston Marathon (2013), San Bernardino (2015), and Orlando in 2016, all with massive loss of life.

To be fair, the Federal Bureau of Investigation and Central Intelligence Agency also failed to prevent those attacks, but that does not let FISA off the hook. A failure at its appointed task, FISA projected its power into domestic politics.

In 2010, President Obama appointed James Boasberg to the U.S. Court for the District of Columbia. In 2014, Chief Justice John Roberts appointed Boasberg to the FISA court, but as with all the FISA judges, there was no public hearing to determine Boasberg’s fitness to serve on that body. (RELATED: This Mess Is of Your Own Making, Chief Justice Roberts)

James Boasberg served as presiding FISA judge from Jan. 1, 2020, to May 18, 2021. Consider his handling of U.S. Navy veteran Carter Page, who served as an asset for the CIA. (RELATED: Dictatorship of Obama Judges)

In 2016, Page was a foreign policy advisor to the Trump campaign. FBI attorney Kevin Clinesmith falsified an email to say that Page had not served as a CIA asset. That exposed Page to surveillance under FISA, whose judges can slide down to their district court and rule on cases they handled in secret.

In August 2020, Clinesmith pleaded guilty to falsifying the Carter Page email, so in January 2021, the FBI attorney was an admitted felon awaiting sentence, not a “defendant,” as Boasberg described him. Boasberg also told the court Clinesmith had made a “misstatement,” a strange description of deliberate falsification.

For a felony commanding a five-year maximum, Boasberg gave Clinesmith 12 months of probation and 400 hours of community service, barely a slap on the wrist. Such a miscarriage of justice invited impeachment, but by all indications, the judge was not even reprimanded.

The push to extend FISA comes at a time when the reasons for its elimination should be obvious. Here is a judicial body that operates in secret, deploying powerful surveillance against American citizens and foreign nationals alike.

In effect, FISA judges wield more power than Supreme Court justices and can easily indulge partisan activity behind a wall of secrecy. The failure to eliminate FISA could be the administration’s greatest failure. As Trump likes to say, we’ll have to see what happens.

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Lloyd Billingsley is a policy fellow at the Independent Institute in Oakland, Calif.

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