Some setbacks count almost as good news. Clearly, the Democrats have lost ground in the midterms. While it may be weeks before control of the Senate is determined, if Georgia goes to a runoff, the Republicans still appear likely to take the House, though more narrowly than hoped. They will use control to mire the administration in legislative deadlock and committee investigations. High-profile Democrats such as Stacey Abrams in Georgia and Beto O’Rourke in Texas were also easily defeated.

But this was “definitely not a Republican wave, that is for darn sure”, the senator Lindsey Graham acknowledged as early results came in on Tuesday night. The sense of the GOP falling short is not just about pre-poll punditry. Joe Biden may be on track for the best performance by an incumbent in the midterms since 2002, when George W Bush enjoyed extraordinary popularity in the wake of September 11. Mr Biden’s approval ratings are mediocre at best, thanks in large part to high inflation. Yet the president appears to have done markedly better than Barack Obama did in 2010 on similar figures.

It was also a bad night for Donald Trump, expected to declare his 2024 candidacy this week. There will be an increased Maga caucus in the House (giving Kevin McCarthy, currently minority leader, a headache). But while the former president’s support may be critical in primaries, it looks less helpful in general elections. True, JD Vance won his Senate race in Ohio; but the Democrat John Fetterman flipped Pennsylvania, defeating Mehmet Oz, and in Michigan, the governor Gretchen Whitmer saw off the challenge from Tudor Dixon. Two Republican victories were almost as unwelcome to Mr Trump: the re-election of Georgia’s governor, Brian Kemp, who defied his pressure to overturn the results in the state in 2020, and especially the landslide in Florida for Ron DeSantis, seen as the most likely challenger for the presidential nomination – as Mr Trump’s threats to the governor show.

In many ways the Democrats’ performance looked more like the result of a vote against Republican extremism than a vote of confidence in Mr Biden’s party. Inflation was the top issue for voters, but abortion came close behind – and outranked it in Pennsylvania. Despite GOP candidates’ last-minute attempts to blur their hardline anti-abortion stances, as they realised their unpopularity, voters turned out to defend women’s right to autonomy and healthcare. California, Michigan and Vermont supported ballot measures that effectively prevent state legislators enacting bans. In North Carolina (a key destination for people from anti-abortion states), Republicans did not get the supermajority they sought in the state house, which would have allowed them to enact a total or six-week abortion ban. Protecting democracy was another key concern for voters. An alarming number of election deniers won races; some will now oversee future votes. But many others were rejected.

Overall the results are a fillip for Democrat morale and, despite Mr Biden’s relatively low profile in this campaign, strengthen his position in his party (though according to one exit poll, only 30% of voters said they wanted him to run again in 2024; 67% said they didn’t). He will also retain precious authority in international dealings. All this is a relief. But after one of the most ferociously fought elections, with a staggering $16.7bn spent, the US’s challenges and divisions are as glaring as ever.

For the last half century, Americans have told themselves a pleasant story about the Federal Bureau of Investigation. It goes like this: Yes, there were abuses during the long tenure of FBI Director J. Edgar Hoover. But that was decades ago. After painful and revelatory hearings in the 1970s, Congress formed permanent select committees in the House and Senate to scrutinize the bureau and the intelligence community. The Justice Department issued new guidelines for the wiretapping authority that the FBI had arrogated to itself. The Foreign Intelligence Surveillance Act, or FISA, created a secret court to approve warrants to eavesdrop on American citizens. After the scandals exposed in the 1970s, or so the story goes, the FBI was reformed, reformed itself, and has earned its place as perhaps the most famous agency in the federal government and the best-known law-enforcement organization on earth.

A wonderful story. If only it were true. In fact, a half century after Hoover died in office, the FBI is mired in scandal again—and the record shows it has continued to conduct itself in highly questionable ways throughout the decades following Hoover’s passing. And while no director since Hoover has accumulated the power he held and wielded over Washington in his time, the bureau remains a threat to both the civil liberties of its targets and the democratic health of the republic.

Over the past six years in particular, we have learned that FBI officials routinely deceive not only the public but also the institutions designed to protect the public from FBI overreach. Agents lie to supervisors. Supervisors lie to judges. FBI directors mislead Congress. And almost no one is ever punished.

Recent reports from the Justice Department inspector general  found that field agents routinely fail to verify the facts they submit to the surveillance court in their warrant applications. Another report found that most FBI officials ignore the prohibition on contact with the media. In September, a Los Angeles judge accused the bureau of misleading the court in a search-warrant application it used to seize the contents of 1,400 safe-deposit boxes at strip-mall bank, many of which belonged to innocent citizens. Earlier in 2022, Congress learned that the lead agents investigating Larry Nasser, the USA Gymnastics doctor who serially abused gymnasts under his care, lied to their superiors about his lack of culpability even though they had evidence of his crimes, which delayed justice for his victims and allowed Nasser to continue his predations. One of the agents was allowed to retire with his full pension.

A month before the 2020 presidential election, the Justice Department and FBI announced the arrest of 13 members of the Michigan-based Wolverine Watchmen, which made it seem that the FBI had disrupted a near-miss kidnapping of Michigan’s governor, Gretchen Whitmer. Except, as Buzzfeed first reported, FBI informants and undercover agents “had a hand in nearly every aspect of the alleged plot, starting with its inception.” In April, the Justice Department lost its first trial, with the jury acquitting two of the plotters and failing to reach a verdict on two others. 

Also in the run-up to the 2020 election, the FBI warned Facebook and Twitter that Hunter Biden’s infamous laptop might have been the creation of a Russian disinformation effort, thus echoing a public statement to that effect issued by more than 50 former senior national-security officials and most of the media. Those warnings, recently confirmed on Joe Rogan’s podcast by Facebook founder Mark Zuckerberg, were a major reason why social-media companies took unprecedented steps before the election to throttle the distribution of and censor a New York Post exposé on the laptop.

Here’s the thing: The FBI’s own agents would later confirm the authenticity of emails from that laptop in their own investigation of Hunter Biden and his associates, according to the New York Times. 

Senior FBI officials caught lying or violating the rules in recent times have mostly evaded punishment. The ones who signed the fraudulent surveillance warrants relating to former Trump campaign aide Carter Page have paid no legal or reputational price for their actions. Earlier this year, the only FBI official convicted for the deception of the FISA court during Russiagate, a lawyer named Kevin Clinesmith, had his law license restored by the District of Columbia Bar. A senior FBI analyst who was referred for administrative discipline because of the Page warrant, Brian Auten, also managed to play a key role in the Hunter Biden probe in 2020. He threw up roadblocks in the investigation by denigrating accurate information about Biden’s relationship to a state-owned bank in China as Russian disinformation.

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The last time the FBI faced a crisis in confidence comparable to the present was before 9/11. The mood was captured in a Time cover from April 28, 1997. It featured a package of stories under the heading: “What’s Wrong with the FBI?” In 1996, the FBI leaked that a security guard named Richard Jewell, who had discovered a backpack filled with pipe bombs at a parking lot at the 1996 Olympic Games in Atlanta, was actually a suspect in the bombing he foiled. For the next 80 days, the press picked Jewell’s life apart based on the anonymous whispers of the FBI and Atlanta police. He was innocent, though he was haunted and dogged by his trial by media. He died a decade later, a broken man of 44. Two years before his passing, the real bomber confessed.

The FBI’s relationship with Congress also took a nosedive around the same time. The bureau was unable to produce some 40,000 pages of documents requested by Congress with regard to the investigation into the 1995 white-militia bombing at the Alfred P. Murrah building in Oklahoma City—leading to wild speculation about what had happened to those papers. To get a sense of the public distrust of the bureau in those years, a 1999 poll found that 61 percent of Americans believed that the bureau’s agents had set the Branch Davidian compound ablaze—the home of the cult run by David Koresh—in Waco, Texas, in 1993. That was not the case. But the public’s confusion was understandable. Following the standoff, the lead agent at Waco told the press the FBI had used no pyrotechnics that day, when in fact it had.

In a parallel to the present day, the FBI also played a role in investigating the president—and details of the ongoing investigation into Bill Clinton’s presidential fundraising and even Hillary Clinton’s dealings in Whitewater were routinely leaked. Ongoing FBI investigations fed media scandals. Sound familiar?

The biggest blow to the FBI’s reputation was in the one area where Hoover excelled: counterintelligence. The FBI botched the investigation into nuclear scientist Wen Ho Lee so badly that the Justice Department had to settle for a minor conviction for mishandling a few classified documents, when initially the Bureau’s agents were sure that Lee was a full-blown spy for China. (FBI leaks about Lee led to a $1.5 million settlement paid to him in 2006.)

In the fourth week of George W. Bush’s presidency, the FBI arrested Robert Hanssen, one of its own agents, for spying for the Soviet Union. The damage was staggering. Hanssen had committed his treason undetected for more than 20 years. And yet there had been multiple red flags the FBI ignored. At one point, a crude hacking program was found on Hanssen’s computer, which Hanssen explained away to his colleagues as a way to recover the forgotten access code to an office printer. His own brother-in-law, also an FBI agent, once recommended that Hanssen be investigated after he learned from Hanssen’s wife that she had found a pile of cash in their dresser. Nothing happened. Hanssen himself was placed in charge of the mole hunt—in other words, he was given the job of finding…himself. To make matters even worse, for years the FBI pursued an innocent CIA officer its agents wrongly believed had been responsible for what they would later learn was Hanssen’s espionage.

All of this was the backdrop to a Senate Judiciary Committee hearing on “restoring the public’s trust in the FBI” on June 20, 2001. Even allies of the FBI could no longer defend its incompetence and dishonesty. Senator Chuck Grassley was blunt and withering in his assessment. “My father taught me the FBI could do no wrong,” he said. But the Iowa Republican no longer believed that. He said the presumption that the FBI “acted with integrity was shaken.” Senator Chuck Schumer offered this: “Sometimes you owe it to a friend to look him in the eye and tell him the hard truth. And that truth is this. The FBI has made mistake after mistake after mistake, and many of us are wondering now if those are random mistakes, or if it’s not something deeper.”

This was as close as the FBI came to receiving the kind of congressional scrutiny that had led to post-Hoover changes. In short order, two phenomena emerged and together they derailed the possibility of any significant reforms. They were 9/11 and Robert Mueller.

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In the weeks and months after September 11, 2001, the FBI was simultaneously blamed and rewarded for the attacks. The bureau was blamed for failing to connect the dots; there was enough raw information in its hands for the FBI to have figured out the plot before it was executed. It was criticized for not sharing the intelligence it had with the CIA (which was also blamed for not sharing what it had with the FBI). As Thomas Kean, the Republican co-chair of the 9/11 Commission, said with exasperation at a 2004 hearing: “This is an agency that just does not work.”

And yet, as an institution, the bureau ended up making out like a bandit. Congress gave the FBI vast new authority to spy on potential terrorists inside America. The Patriot Act allowed the FBI to compel phone companies, banks, and employers to hand over records on a suspect while barring these institutions from publicly acknowledging they were under orders from the FBI. Prohibitions on intelligence-sharing between the FBI and other agencies (the CIA in particular) were lifted. At the same time, technological breakthroughs afforded the U.S. government the ability to collect more communications than at any time in its history. In previous eras, the FBI had to break into office buildings and doctor’s offices to steal files. In the new millennium, the bureau—with the help of the National Security Agency—could hoover up such data from the Internet’s wires.

It was the fallout from the investigation of Zacarias Moussaoui, sometimes known as the “20th hijacker,” that provided them with some of these new powers. FBI agents had arrested him less than a month before 9/11 in Minneapolis. The local agents wanted a surveillance warrant on Moussaoui to examine his computer and communications. But their managers at headquarters determined there was not enough probable cause to apply for the warrant.

From one perspective, the Moussaoui case could have served as a condemnation of FBI incompetency. The judgment that there was insufficient probable cause was just that—a judgment. They still could have taken the matter to a judge; the judge could have granted the warrant; and 9/11 may have been prevented.

But that is not the way it was read. Instead, the Moussaoui case became the primary example in the argument that it was time to do away with the so-called “wall” between intelligence and criminal investigations. After 9/11, the wall was agreed to be a luxury America could no longer afford. FBI Special Agent Coleen Rowley, who would later testify before Congress that her investigation into Mousaoui had been stymied by overly cautious managers, wrote in a 2002 letter to Mueller that excessive restrictions on intelligence collection before 9/11 had created a chilling effect when it came to domestic counterterrorism investigations.

Perhaps. But the fact is, the FBI had already figured out how to game the system. In two major counterterrorism investigations before 9/11, FBI agents had obtained warrants for criminal investigations by pretending they were intelligence investigations. At the time, the bar for getting a warrant in an intelligence investigation from the FISA court was much lower than the one for a criminal investigation, where eventually any application would have to withstand cross-examination in a courtroom.

A 2004 inspector general report explained what happened: “While different agents were assigned to the criminal and intelligence investigations, they were not kept separate from each other. Instead, the criminal agents worked on the intelligence investigation, and the intelligence agents worked on the criminal investigation. This meant that, contrary to what had been represented to the FISA Court, agents working on the criminal investigation had not been restricted from the information obtained in the intelligence investigation.”¹

The FBI was not just in the habit of deceiving the FISA court. An internal FBI memo from April 21, 2000, found that field agents often ignored limitations in the surveillance warrants themselves. The memo found that agents in one case videotaped a meeting when the FISA warrant had specifically prohibited video recording. In another case, agents continued to intercept an email address after the warrant’s authorization had expired. In a third case, agents kept a wiretap on a cellphone after the phone number had ported to a new customer. As a 2003 report from the Senate Judiciary Committee concluded, those errors had had nothing to do with bureaucratic confusion over the “wall” between intelligence and criminal investigations.

Even though the bureau was under enormous pressure after 9/11 to pursue domestic terrorists with greater urgency, the FISA scandals of 1999 and 2000 could not be ignored. So in response, an FBI agent and lawyer named Michael Woods developed a new protocol for surveillance warrant applications. The Woods Procedures now required the bureau to verify all facts presented in a FISA warrant application and keep them in a separate file. The Woods file, as it came to be known, was supposed to aid the lawyers and judges reviewing warrant applications to determine whether the assertions were “scrupulously accurate.”

It turns out that the Woods Procedures, like constitutions for Third World police states, sound great on paper and mean nothing in practice. An inspector general audit in 2021 concluded that the FBI was not complying with the Woods Procedures. Out of 7,000 FISA warrants between 2015 and 2020, 179 had missing or incomplete Woods files. In other instances, the actual files had numerous errors. A subsequent review done by the FBI’s own management found that most of the errors were not material to the actual application, meaning they were typos or incorrect dates and spellings. But in what was likely the most serious case of malfeasance, the review of the FISA warrants for Carter Page found that the FBI had conned the surveillance court to such a degree that the court had to revoke two of the warrants. As the inspector general concluded, “the FBI did not faithfully comply with its Woods Procedures or meet its ‘scrupulously accurate’ standard.”

It’s a near miracle that the FBI managed to survive the scandals of 2001. In short order, the agency had been exposed as having employed one of the worst spies in American history and having failed to grasp the details of the 9/11 plot despite having arrested one of the plotters. And on top of that, Congress learned in this same period that the oversight of FBI domestic surveillance was anemic. So how did the bureau manage to rebuild itself and become even more powerful?

The answer is Robert Mueller. The Hanssen case alone proved such a humiliation that Director Louis Freeh resigned abruptly on June 1, 2001, with more than two years left to complete his 10-year term. He told no one of his decision until he announced it. That gave the Bush administration and Congress a tight window to find a replacement. As a result, Mueller did not officially start his job as the new FBI director until right before 9/11. You can’t blame the new boss for the failures of the last one.

Under Mueller’s leadership, the FBI expanded its surveillance of Americans, since it had been tasked with preventing acts of mass terrorism. In fairness, Mueller succeeded in a sense. There has not been another 9/11 since 9/11. But the cost of this security was to make domestic surveillance more routine than it should have been—and to lead the FBI into areas in which they seemed to be incepting terrorist plots themselves to root out Americans attracted by the prospect. Outside analysis of U.S. domestic counter-terrorism prosecutions since 9/11 has found that half of the cases brought by the Justice Department relied on informants and FBI assets.

Because the wall between intelligence and criminal investigations had been demolished, the FBI now had the authority to deploy informants at the earliest stage of an investigation, before there had been any indication that there was any kind of plot to prevent.

Reasonable people can disagree over whether these tactics are defensible during a national emergency like the first years after 9/11. Having the FBI lurking in many online chat rooms and Islamic bookstores may have deterred acts of terror. But it’s been more than 20 years now that the FBI has surveilled and penetrated the Muslim American community. And as the recent cosplay kidnapping plot against Governor Whitmer shows, these tactics are now used against right-wing extremists. Is this the new normal for the FBI’s counterterrorism mission, or will we look back at Mueller’s transformation of the bureau the way we cringe at the memory of Hoover’s COINTELPRO operations in the 1960s and 1970s?

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During Mueller’s first four years in office, an ambitious prosecutor named James Comey was the No. 2 at the Justice Department. They became friends and allies in 2004. That’s when they concluded that elements of a National Security Agency program, known as Stellar Wind, lacked an adequate legal basis. The NSA was collecting and storing the digital data of millions of Americans, and the entire process was done without any oversight from the surveillance court created by FISA.

Everything came to a head on March 10, 2004. Attorney General John Ashcroft was recovering from pancreatitis in a hospital, and White House counsel Alberto Gonzales and chief of staff Andrew Card came to Ashcroft’s bed. They needed his signature on an order certifying the legality of the surveillance program, which the president had to reauthorize every 45 days.

Ashcroft not only agreed with Comey; he had already empowered his deputy to be the acting attorney general. Comey had already informed the White House he would not be certifying the program. Nonetheless, Card and Gonzales made their melodramatic move and asked for Ashcroft’s sickbed signature. Ashcroft rebuked them, and pointed to Comey, whose supposed defiance of the White House turned him into a hero for many Democrats who loved the idea of anyone “standing up” to the Bush White House.

Comey and Mueller won the day. But this proved a pyrrhic victory for Comey worshippers who falsely believed he was some kind of tribune for civil liberties. (One of them was a soon-to-be senator named Barack Obama.) The eventual compromise struck in the wake of the Ashcroft hospital scene was that the FISA court would oversee Stellar Wind. It did. In 2013, NSA contractor Edward Snowden leaked general FISA warrants that had been used to collect all customer telephone metadata from Verizon.

That same year, Obama nominated Comey to be his FBI director. Comey lasted four years, and he will be remembered for overseeing a bureau that systematically ignored the basic safeguards created to ensure the integrity of the FISA process. Not only that; a team of agents handpicked by Comey’s deputy knowingly conned the FISA court so they could go on a fishing expedition and eavesdrop on Carter Page, an adviser to Donald Trump’s 2016 campaign. In other words, the man who was supposedly responsible for bringing the NSA’s mass surveillance in line with the FISA process ended up exposing that process as a toothless ritual, a sham.

Why should we be so concerned with FISA courts anyway? For the answer to that question, we must travel back to 1975—just after Watergate and during the first year of the Church Committee hearings in the Senate that exposed the bureau’s dirtiest secrets, along with those of the NSA and the CIA. American trust in government in general and the FBI in particular was at a nadir.

In Enemies, a history of the bureau, Tim Weiner tells this story about President Gerald Ford’s attorney general, Edward Levi. An agent named Paul Daly asked for Levi’s signature to install a wiretap without a court order. Levi asked Daly for some time to consider the request, because, Levi said, “the agents might get caught going in.” Daly responded that the secret microphone had already been installed.

This was how Levi learned that the FBI felt entirely free to break into an American citizen’s home or office without approval from a court or even the Justice Department. He was furious. The official story the FBI had been telling the public and the Justice Department was that most of the domestic espionage operations, known then as “black bag jobs,” had been forbidden by Hoover at the end of 1966.

For decades, the bureau had made an interesting and corrupt distinction between intelligence gathering and criminal investigations. If the fruits of a break-in or a wiretap were never to be presented as evidence in a court, then the Justice Department allowed the FBI to wiretap people. This resulted in extraordinary and historic abuses of power. Hoover himself infamously once hosted a meeting with leading female reporters in Washington to share the fruits of the FBI’s surveillance of Martin Luther King, namely, his adulterous affairs. Even so, by the mid-1960s Hoover saw the writing on the wall; he then sought to bring the FBI’s domestic spying in line with court dictates.

Many of his underlings did not. In October 1972, five months after Hoover died in office, acting director Patrick Gray ordered break-ins against Palestinian-American groups across the country—and the next month, black-bag jobs against the friends and families of 26 Weather Underground fugitives. These decisions eventually led to the first and only Justice Department indictments of senior FBI officials: Gray deputies Mark Felt and Edward Miller.

Felt later went on CBS’s Face the Nation and defended his decision to order the break-ins against the Weather Underground, saying that someone needed to take responsibility for keeping the country safe and that sometimes the rights of a few must be violated to secure the rights of many. Felt was giving voice to a thorny dilemma. On the one hand, some American citizens were plotting terror without a connection to a foreign power, and the only way to find out about their activities and prevent them from going ahead was to use wiretaps. On the other hand, the power to spy on American citizens without a court warrant had been abused time and again by the FBI.

Writing in this magazine in June 1978, James Q. Wilson explained the dilemma as follows: “Terrorism and espionage are ominous facts of life, drawing equally on ‘domestic’ and ‘foreign’ persons with little regard for the niceties of citizenship. Just as there has been a ‘clear and present danger’ test by which to judge the scope of the First Amendment’s guarantee of free speech, there may also have to be such a test in judging the Fourth Amendment’s prohibition against unreasonable searches. It ought to be possible for Congress to devise such a test and create independent machinery to apply it without having to defend the increasingly dubious proposition that foreign agents are of necessity more dangerous than domestic terrorists.”

Two months after Wilson’s article appeared, Congress created the FISA court system. Henceforth, if the FBI wanted to spy on an American it suspected of terrorism or espionage, it had to get a secret court to approve the warrant. But it turned out it was shockingly easy to turn the court into a rubber stamp.

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Mark Felt is today best known as Deep Throat, the Washington Post’s long-secret source for Watergate. The conventional view is that Felt’s leaks during Watergate were heroic because he was exposing a greater evil: a sitting president who hired former spooks and G-men to spy on his political opposition. Now, there is no defending Nixon’s skullduggery or the deceptions that led to his demise. But it’s also constitutionally perilous as a precedent to have senior bureaucrats in the FBI believing it is right and proper for them to use their access to state secrets to wage a political war against an elected president.

Here it’s worth comparing Felt with Comey. When Comey leaked his own notes of private conversations with President Donald Trump to a law-professor friend, who in turn passed them on to the New York Times, he believed he was updating the Felt playbook for the late 2010s.

But there was a difference. Felt’s leaks advanced the truth by undermining the false denials of Nixon’s White House—and even though not every detail Felt shared and confirmed about the FBI’s investigation into Watergate was accurate, most of it was. Not so with Comey’s leaks, which were deeply misleading. For example, the notes made it appear that Trump was trying to interfere in an ongoing investigation into Mike Flynn, his former national-security adviser. As I detailed in the June 2020 issue of COMMENTARY, at the time of Comey’s conversation with Trump, the lead agents investigating Flynn had already recommended closing the investigation altogether. After FBI agents interviewed Flynn weeks before the Trump-Comey conversation, they had briefed the Justice Department with their conclusion that Flynn had not knowingly lied in their conversation with him and that there was no evidence that he was a Russian asset.

What makes Comey’s leaks more sinister than Felt’s is that Comey was peddling misinformation, partial facts that weave a false narrative. He sought to create the public impression that the bureau had accumulated significant evidence that Trump and his top advisers were compromised by Russia. But in point of fact, his own investigators were finding no corroboration for this scenario other than the opposition-research document—the Steele dossier—that had been compiled by Trump’s 2016 opponent. Felt’s leaks corrected the misleading denials from a White House that was trying to shut down the FBI’s investigation into Watergate. Comey’s leaks advanced an untruth.

Leaks have been part of the FBI’s playbook for managing its public image since Hoover took over the bureau in 1924. He worked with journalists as well as Hollywood to make sure the FBI was portrayed as an agency staffed by nonpartisan patriots. Hoover’s second-in-command, Clyde Tolson, even vetted the actors for the 1960s ABC television series FBI to make sure no one on the show had a criminal background or was a member of the Communist Party. Hoover would recommend changes to scripts.

Sometimes, the FBI’s narrative management was more sinister. When an FBI informant in the Ku Klux Klan was involved in the murder of a white civil-rights worker named Viola Liuzzo in 1965, Hoover and his underlings spread the rumor that Liuzzo had been a member of the Communist Party and a heroin addict, and had abandoned her children to have sex with African-American men.

Hoover famously employed a team of ghost writers—known informally as the “correspondence unit”—to send letters to friendly journalists, occasionally sharing gossip and tidbits, giving the impression that the scribes were part of Hoover’s inner circle. The greatest public-relations coup for the correspondence unit involved one of the founders of the American Civil Liberties Union, Morris Ernst. In 1950, when the FBI was routinely bugging the homes and offices of suspects it was investigating without a warrant, Hoover’s ghostwriters persuaded Ernst to write an essay for Reader’s Digest, the largest-circulation magazine in America, titled “Why I No Longer Fear the FBI.” Ernst wrote: “Those who feared the bureau—as I once did—will be glad to know the facts. The FBI is unique in the history of national police. It has a magnificent record of respect for individual freedom. It invites documented complaints against its agents. It has zealously tried to prevent itself from violating the democratic process.”

Ernst’s assurances sound like a punch line today. This is the same FBI that spied on Martin Luther King, uncovered his adultery, and then, in a poison-pen letter, threatened to expose it if he didn’t kill himself. This is the same FBI that routinely broke into offices and private homes before getting permission to turn on a wiretap from the Justice Department. How could a civil libertarian allow himself to be played like that?

And yet, history tends to rhyme. While the FBI today doesn’t have the ACLU writing defenses of its respect for civil liberties, it does have plenty of water carriers in the liberal media. They are the former FBI and Justice Department officials who have become a ubiquitous presence on cable news and social media.

Just to choose one out of hundreds of examples, consider Asha Rangappa’s essay for the website Just Security from March 6, 2017, titled “It Ain’t Easy Getting a FISA Warrant: I Was an FBI Agent and Should Know.” Rangappa is a former FBI counterintelligence agent, a senior lecturer at Yale, and a reliable defender of the FBI’s leadership. In the essay, she explains that there are so many layers of oversight before a surveillance warrant is even submitted to the FISA court that it’s understandable the court has approved nearly all of them in recent years. But we know now authoritatively that the FISA process was not rigorous at all, thanks to the investigative work of the Justice Department’s inspector general, Michael Horowitz. But we didn’t get the first of Horowitz’s scathing reports on FISA abuse until the end of 2019. For most of the Trump years, the conventional wisdom among journalists, members of Congress, and the broader legal community was that FISA warrants went through what Rangappa called in her piece “extreme vetting.”

The typical way that officials shape the narrative about their bureaucracy is of course through the time-honored practice of leaking. It happens all the time in Washington and nearly everyone does it, including the FBI. But FBI leaking is different from, say, leaks from a powerful senator or the Department of Energy. To begin with, the FBI is the one institution in government that is supposed to investigate leaks of classified information. This gives the Bureau extraordinary power over other parts of the national-security state. This means that every now and again, powerful generals such as David Petraeus or James Cartwright will be pursued by the bureau’s anti-leak team. But FBI leakers are themselves almost never punished.

Case in point: Even after the Justice Department’s inspector general caught former FBI deputy director Andrew McCabe lying about his own efforts to soften stories about the bureau’s decision not to investigate the Clinton Foundation before the 2016 election, he still got his pension restored and is now into his fourth year in a second career as a CNN analyst. In 2021 the inspector general concluded that in 2016 there was “a cultural attitude at the FBI that was far too permissive of unauthorized media contacts.” Looking at the stream of detailed stories about FBI investigations into Trump and his allies, there is little evidence that the culture of 2016 has changed.

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In 1976, as the Church Committee was wrapping up its business, Senator Barry Goldwater, a Republican whose libertarian streak led him to be supportive of the groundbreaking oversight, expressed a fascinating bit of regret. He told an NBC interviewer that he thought the committee went too far in exposing assassination programs of the CIA and had not gone far enough in delving into the wiretapping of American citizens by the FBI.

Goldwater’s reasoning was that the CIA’s dirtiest deeds were on orders from elected American presidents. The assassinations, coups, and acts of political warfare were part of a nasty cold war, where the adversary was playing even dirtier. The FBI’s abuses, however, went straight to the heart of our constitutional republic. The fact that Hoover could order a powerful domestic intelligence service to put Americans under the microscope because of what they believed was the equivalent of enforcing a regime against a kind of thought crime. Anti-war groups in the 1960s were not agents of foreign powers, nor were the civil-rights leaders of the era. But many of these Americans were treated like domestic enemies without a scintilla of due process.

Goldwater’s point stands today as well. The checks on the FBI’s domestic intelligence operations are anemic. This is because intelligence work and policing undermine each other. The bureau’s intelligence responsibilities led to the creation of a part of the FBI bureaucracy that literally adopted and perfected the tactics of criminals—whether it was the break-ins and buggings of the Hoover era or the hacking of cyber sleuths today.

Police collect evidence with the expectation that it will have to withstand scrutiny in a court of law. Spies sort through rumor and secrets to learn what an adversary is trying to hide from view. With that in mind, it would be better to take the spies out of the national police force. The FBI as it stands should not be an organization that both surveils national-security threats and works on domestic policing. Congress should create a new domestic-intelligence entity similar to the MI5 in the United Kingdom. This way the FBI can focus on solving crimes, while the new agency could focus on preventing acts of terror and rooting out spies.

A second key reform would be to hold senior officials accountable. The last time a senior FBI official was actually indicted was in the late 1970s. Felt and Miller ended up being convicted for violating the rights of associates and members of the Weather Underground in 1980 by a jury, and for their misbehavior they received small fines and no jail time. In 1981, President Reagan pardoned both men, and their reputations were soon rehabilitated. Felt would go on to testify before Congress on domestic security matters and occasionally offer his opinion on television news shows.

If no one is punished for deceiving the FISA court and failing to consistently adhere to the Woods Procedures, then what is the point of having a FISA process at all? Today, the FBI leaders who presided over Russiagate—Comey, McCabe, and Peter Strzok—are feted like resistance heroes, with sinecures at cable news networks, elite universities, and Washington think tanks. What lesson will others draw from this, except that there are no consequences for abusing authority against the right political targets?

Finally, the fourth estate should reconsider the Watergate precedent. More often than not, leaks about ongoing investigations end up serving as an excuse to air damaging allegations about public figures the reporters themselves do not have the goods to back up. That was the story of the Steele dossier, which was shopped to journalists before the 2016 election, but became a story only after a senior official leaked to CNN that the dossier was briefed to Obama and Trump during the presidential transition. The allegations on their own were too thin to publish, but stories about the FBI examining the allegations set off the first of a thousand news cycles.

In 1947, Harry Truman was convinced that Hoover was building a dangerous secret police force in the FBI. He wrote to his wife Bess, “Edgar Hoover would give his right eye to take over and all Congressmen and Senators are afraid of him. I’m not and he knows it. If I can prevent it, there’ll be no NKVD or Gestapo in this country.”

Truman did not stop Hoover. Neither did other presidents who came after him. It took Hoover’s death, Watergate, and the Church Committee to reform the FBI. Fifty years later, many of those reforms have themselves been defanged or twisted beyond recognition. New ones are needed.

^{1 These deceptions so bothered Judge Royce Lamberth that he barred the supervising agent who made these claims from appearing before the surveillance court, thereafter. Nearly 20 years later, the FISA court would do the same to the supervisory FBI agents who vouched for the warrant applications to spy on Carter Page.}

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As Russia retaliated for Ukraine’s destruction of the Kerch Bridge by launching strikes on energy facilities and civilian targets in Kyiv, commentators returned to the question of whether events were escalating, and whether the world was inching closer to the brink of nuclear war. Probability estimates by these observers have, unsurprisingly, mushroomed as well.

On the high end, these estimates ranged from 10-20 percent to an overly precise 16.8 percent to 20-25 percent for “some analysts.” Some of these headline-grabbing estimates are likely inflated to create a sense of urgency and put pressure on policymakers to take action, rather than to showcase the ability to carefully craft probability estimates. The difference between estimates may simply reflect the prominence of each nuclear scenario in each analyst’s mind.

Here, we lay out the debate over the probability of nuclear use, outlining flaws in current estimates. We offer an alternative approach that focuses on thinking broadly across multiple scenarios and minimizing the rewards of using nuclear weapons, to minimize the possibility of nuclear war.

Can you put a number on the likelihood of nuclear use?

Predicting the future is hard, and estimating the probability of future events is no exception. Estimating the probability of future events like ones that have occurred many times before is already difficult enough, since — in a complex world — it is difficult to determine which factors decreased or increased the probabilities for past events. For example, the possible causes of Russia’s attacks on Ukrainian civilians span across international, domestic, and psychological explanations.

Trying to estimate the probability of nuclear use is just as difficult — if not more so.  Nuclear scholar and Russian forces expert Pavel Podvig argued along these lines in Newsweek and on Twitter, publicly asserting that nuclear strikes are so rare, it is impossible to calculate their frequency and therefore meaningless to translate that frequency into a probability. Director of the Global Catastrophic Risk Institute Seth Baum noted that Podvig was critiquing frequentist approaches to calculating, which infer how likely an event is to happen based on a sampling of past similar events. He argued that instead, Bayesian approaches – which rely on subjective probabilities that get updated when new information is presented – could be a more helpful way of thinking across multiple different nuclear scenarios, as Baum himself has done in a working paper. Superforecasting, when ordinary people cultivate their intuitive sense for prediction, and which relies in part on good Bayesian updating, is one such approach to nuclear scenarios; Baum’s co-author and superforecaster Robert de Neufville argued in March that there was a 4% chance of at least one fatality from nuclear use by July 1, 2022.

What’s going on here? Is Baum correct that Bayesian approach is the right way to think about nuclear use? And is this war of the nerds helpful in understanding how to avoid nuclear war?

Podvig and Baum are correct that frequentist approaches are definitely not useful here. Estimating the likelihood of a future nuclear war based on how often past nuclear wars occurred is not appropriate, given how rare past nuclear weapons use is.

Bayesian approaches are useful for thinking about adjusting one’s own subjective estimate of probability, but not for informing the actual probability of Putin deciding to use a nuclear weapon. What’s more, there is no way of adjudicating between subjective estimates, and consequently no way of coming up with a combined estimate overall. Even people with the same information may have wildly different guesses: Former U.S. President John Kennedy estimated the odds of nuclear war during the Cuban Missile Crisis to be between one in three and one half, but former U.S. National Security Advisor McGeorge Bundy thought it was one in 100.

Even approaches that attempt to deal with this problem of competing subjective estimates, such as a team of superforecasters working together, cannot work here, since they rely heavily on good estimates of the base rate of an event occurring, which is similarly difficult. As RAND economist Alain Enthoven said to a senior Air Force general, “General, I’ve fought just as many nuclear wars as you have.” Moreover, there is no one in the Kremlin turning the dial up or down, creating an objective change in the probability of nuclear weapons use.

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We are also likely to overestimate the likelihood of nuclear war when those estimates are informed by public behavior, because we can’t see the private behavior that would decrease our estimates. Russian leaders have good reasons to make multiple public threats. By increasing other countries’ perception that Russia is willing to use nuclear weapons, the Kremlin increases Russia’s bargaining leverage (although this can also create a commitment trap, where a country that has threatened to use nuclear weapons could be forced to do so in order to remain credible). This means that when numerous threats are made over time, subjective estimations of the probability of nuclear war act as a ratchet, even when the exact same statements are repeated. These estimations cannot take into account unobserved private efforts that are being made to decrease the chance of war.

While we tend to think of nuclear escalation as a ladder, it can be more like an escalator or a vortex, or even a roller coaster. What looks like a terrifying downhill rush towards nuclear war may be balanced out by private counters that slow momentum and return it to level ground: The anticipation of the danger of nuclear use leads actors to try to overcome it. Such recalibrations may be better carried out privately. As U.S. Secretary of State Jake Sullivan noted, “We have communicated to the Russians what the consequences would be, but we’ve been careful in how we talk about this publicly, because from our perspective we want to lay down the principle that there would be catastrophic consequences, but not engage in a game of rhetorical tit for tat.”

It is a mistake for analysts to ascribe a statistical probability for the likelihood of nuclear war, instead of a relative claim (such as “very” or “more than yesterday”). They should also be accompanying estimates with their confidence in the estimate. Yet, many foreign policy experts appear to be far too confident in their assessments. Making a useful probability assessment is impossible under conditions of uncertainty, when we are lacking information about the variety of possible outcomes or the probability of those outcomes.

Instead of focusing on numbers, think about possibilities

A possibilistic approach, which takes for granted that something might happen but with a likelihood that cannot be determined, is more appropriate here, just as it is when thinking about other high-impact future events. The origins of thinking about the possibility of nuclear war in this way are found in early game theory approaches (economic studies of interacting choices where the outcome of a country’s action depends upon other people’s actions), which offered frameworks that allowed us to think clearly about conditions for nuclear war. But these kinds of approaches can also mislead us if we think we can actually estimate probabilities, or that the estimates we produce must be universally accepted.

Rather than provide punditry on the probability of Putin’s use of nuclear weapons, we should consider pathways that lead to war and reduce the possibility of going down those pathways. In arms control, this means eliminating particularly destabilizing weapons systems; here, it means minimizing the reward of using nuclear weapons. Apocalyptic scenarios have no reward. Yet, limited-use scenarios that help to achieve Putin’s goals may appear to him to do so, even though such strategies are high variance and are essentially “gambling for resurrection” when an actor feels like they are losing and are calculating from the “domain of losses.”

Public and private actions that decrease any apparent value of limited use of nuclear weapons for Putin should, consequently, be the main focus. Since nuclear weapons offer no great advantage for tactical use due to the dispersal of forces on the modern battlefield, use is more likely to be to demonstrate resolve and preserve his strength at home and abroad to counter existential threats to his regime. Consequently, there must be assurances that NATO does not intend to threaten his regime now, and intimations that it may do so if nuclear weapons are used. Western leaders have been careful to state that they do not seek regime change, and should continue to do so. Carefully crafted statements that their war aims and means may change if nuclear weapons are used will help to minimize any benefits Putin might perceive from nuclear use. For example, NATO Secretary General Jens Stoltenberg stated that “Any use of nuclear weapons would fundamentally change the nature of the conflict, and have severe consequences.”

So, if an expert offers you a probabilistic assessment of the likelihood of nuclear war breaking out, you should be very skeptical. Smarter questions and answers should instead focus on scenario-driven approaches that offer different pathways useful for reducing or eliminating certain scenarios. Even though we do not think that quantifying the probability of nuclear use is useful for informing U.S. policy, thinking about how to reduce the possibility of the most salient potential pathways to nuclear use is the best approach.

BRUSSELS (AP) — The European Parliament’s inquiry committee investigating the use of surveillance spyware by the bloc’s governments said Tuesday the EU’s executive arm and member countries are failing to properly tackle a surveillance scandal that has targeted opposition politicians and journalists.

In a draft report published Tuesday, the committee investigating Pegasus said the European Council and national governments “are practicing omertà” — or a code of silence — and regretted that the European Commission only shared “reluctantly and piecemeal” information concerning spyware attacks on its own employees.

A spokesman for the Commission responded that any attempt from national security services to illegally access data of citizens “is unacceptable” and insisted it has already started taking action to protect journalists from the use of spyware.

The Parliament committee has been investigating the use by governments of Israel’s Pegasus spyware and other invasive surveillance tools, viewing such technology as a threat to democracy in the 27-nation bloc.

Pegasus was developed by Israel’s NSO Group and is designed to breach mobile phones and extract vast amounts of information from them, including text messages, passwords, locations and microphone and camera recordings.

The company markets the technology as a tool to target criminals, but many cases have been discovered worldwide of governments using it against dissidents, journalists and political opponents.

According to EU lawmakers, the NSO Group has sold its products in at least 14 EU countries.

“In at least four member states, Poland, Hungary, Greece, and Spain, there has been illegitimate use of spyware, and there are suspicions about its use in Cyprus,” they said, adding that Cyprus and Bulgaria serve as the export hub for spyware.

“Member State governments have largely declined the invitation to cooperate with the PEGA committee,” lawmakers said. “Some governments downright refused to cooperate, others were friendly and polite but did not really share meaningful information. Even a simple questionnaire sent to all member states about the details of their national legal framework for the use of spyware, has hardly received any substantial answers.”

The committee also deplored that Europol, the EU’s crime agency, did not start an investigation into the matter.

“Only after being pressed by the European Parliament, it addressed a letter to five Member States, asking if a police inquiry had started, and if they could be of assistance,” lawmakers said in their draft report.

Following debates with political groups from the Parliament and the possible addition of amendments, a vote on the committee’s final findings will be held next year.

KYIV, Nov 8 (Reuters) – Ukrainian President Volodymyr Zelenskiy said he was open to talks with Russia, but only “genuine” negotiations that would restore Ukraine’s borders, grant it compensation for Russian attacks and punish those responsible for war crimes.

The remarks, made in an overnight address, came days after a Washington Post report that Washington wanted Kyiv to signal its willingness for talks, concerned that by appearing too intransigent Kyiv might harm its case for international support.

Speaking before he was due to address world leaders at a global climate summit on Tuesday, Zelenskiy said: “Anyone who is serious about the climate agenda should also be serious about the need to immediately stop Russian aggression, restore our territorial integrity, and force Russia into genuine peace negotiations.”

Ukraine has repeatedly proposed such talks, but “we always received insane Russian responses with new terrorist attacks, shelling or blackmail”, he said.

“Once again – restoration of territorial integrity, respect for the UN Charter, compensation for all damages caused by the war, punishment of every war criminal and guarantees that this will not happen again. These are completely understandable conditions.”

Since Russia announced the annexation of Ukrainian territory at the end of September, Zelenskiy has decreed that Kyiv would never negotiate with Moscow as long as Vladimir Putin remains Russian president. Kyiv officials have repeated that position in recent days, while saying that Kyiv would be willing to negotiate with Putin’s future successor.

“Negotiating with Putin would mean giving up, and we would never give him this gift,” Zelenskiy adviser Mykhailo Podolyak said in an interview with Italy’s La Repubblica newspaper published on Tuesday.

Russia was demanding Ukraine give up territory as a pre-condition for talks, which made them impossible for now, Podolyak said: “Society will never accept this. The Russian army will leave Ukrainian territory, and then dialogue will come.”

On Monday, Kremlin spokesman Dmitry Peskov repeated Moscow’s position that it is open to talks but that Kyiv is refusing them. Moscow has repeatedly said it will not negotiate over territory it claims to have annexed from Ukraine.

OFFENSIVE

Ukrainian forces have been on the offensive in recent months, while Russia is regrouping to defend areas of Ukraine it still occupies, having called up hundreds of thousands of reservists.

Russia has been evacuating civilians from occupied areas, especially from southern Ukraine’s Kherson region, in an operation that Kyiv says includes forced deportations, a war crime. Moscow says it is taking people to safety.

The next big battle is expected to be over a small Russian-controlled pocket of land on the west bank of the Dnipro River, which includes Kherson city, the only regional capital Russia has captured since its invasion in February.

On Monday, a source confirmed reports that White House National Security Advisor Jake Sullivan had held talks with Russian officials about averting escalation of the conflict. Those talks were first reported by the Wall Street Journal. The Kremlin has declined to comment on them.

The White House did not deny the talks but says it will not make diplomatic moves about Ukraine without Kyiv’s involvement.

“We reserve the right to speak directly at senior levels about issues of concern to the United States. That has happened over the course of the past few months. Our conversations have focused only on … risk reduction and the U.S.-Russia relationship,” White House spokesperson Karine Jean-Pierre told reporters.

The United States is holding mid-term elections for Congress on Tuesday. Although most candidates from both parties strongly support Ukraine, some right-wing Republican candidates have expressed doubt about the cost of U.S. military aid.

U.S. support for Ukraine would be “unflinching and unwavering” regardless of the outcome of Tuesday’s congressional elections, White House spokesperson Jean-Pierre said.

Reporting by Reuters bureaux
Writing by Peter Graff
Editing by Gareth Jones

Our Standards: The Thomson Reuters Trust Principles.

Prime Minister Kyriakos Mitsotakis announced the ban after a news report claimed that he had directed the use of spyware against prominent politicians and journalists, which he denied.