It Can Happen Here
By Judge Andrew P. Napolitano
February 08, 2018 "Information
Clearing House"
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We
remain embroiled in a debate over the nature
and extent of our own government's spying on
us. The Foreign Intelligence Surveillance
Act, which was enacted in 1978 as a response
to the unlawful government spying of the
Watergate era, was a lawful means for the
government to engage in foreign surveillance
on U.S. soil, but it has morphed into
unchecked government spying on ordinary
Americans.
The journey that domestic spying has taken
in 40 years has been one long steady march
of massive increase in size and scope. The
federal government now employs more than
60,000 people to spy on all Americans,
including the White House, the Pentagon, the
federal courts and one another. As well, the
National Security Agency and the
intelligence arm of the FBI have 24/7 access
to the computers of all telecoms and
computer service providers in the U.S. And
certain politicians have access to whatever
the NSA and the FBI possess.
Last week, we witnessed a new turn as
politicians engaged in cherry-picking
snippets from classified raw intelligence
data that support their political cases —
pro-Trump and anti-Trump.
Raw intelligence data consists of digital
versions of telephone conversations and
copies of text messages, emails and other
communications, as well as fiber-optic
internet traffic (legal, medical and banking
records, for example) and secret testimony
and briefings intended only for the eyes and
ears of those who possess a security
clearance.
The surveillance state is now here.
The Republican members of the House
Intelligence Committee fired the first salvo
by releasing a memo derived from classified
raw intelligence, which they claimed would
show a conspiracy in the Obama Department of
Justice, including the FBI, to spy on Donald
Trump's campaign and pass along the fruits
of that spying to the Democrats. The issue
they chose to highlight is the DOJ
application to a Foreign Intelligence
Surveillance Court judge for surveillance on
Carter Page, a former foreign policy adviser
to candidate Trump who once boasted that he
also advised the Kremlin.
The memo's authors wrote about intelligence
data they did not personally see; they
selectively extracted and purported to
summarize raw intelligence data but quoted
none of it verbatim; they intentionally sat
on their conclusions that the feds regularly
have abused FISA authorities throughout the
congressional debate to expand FISA; and a
principal drafter of the memo — Rep. Trey
Gowdy — advises that the raw data he saw and
the memo he wrote have nothing to do with
special counsel Robert Mueller's
investigation of the president.
The Republican memo also reveals that former
MI6 agent Christopher Steele, the author of
the dossier that accuses Trump of
pre-presidential money laundering and
grossly inappropriate personal behavior but
has many parts that have not been publicly
verified, was a "longtime FBI source," and a
summary of his work was part of the DOJ's
application for continued surveillance of
Page.
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That quoted phrase is today a major headache
for the DOJ, as the American and British
governments, which regularly share
intelligence and occasionally spy for each
other, have agreed not to recruit the
services of each other's agents. But the FBI
obviously recruited Steele. If Steele was an
FBI asset while still a British spy — if he
was spying for the FBI and MI6 at the same
time — he may be exposed to a criminal
prosecution in Britain.
The Democrats on the committee have written
their own memo, which the committee voted
unanimously to release. It will be up to the
president to permit or bar its full or
partial release. The Democrats claim that
their memo will show that the DOJ was candid
and truthful when it sought a FISA
surveillance warrant on Page and that the
application for the renewal included far
more than Steele's tainted work.
Why should anyone care about these political
games?
The
loss of liberty rarely comes about overnight
or in one stroke. In a democracy, that loss
is normally a slow process, often pushed
along by well-intentioned folks who do not
even realize until it is too late that they
have created a monster. FISA is a
monster. It began as a means of surveilling
foreign agents in the U.S., and today it is
used for surveilling any American at any
time.
If you call a bookstore in Florence from a
telephone in New Jersey, the government's
computers will be alerted. A federal agent
will download the digital copy of your
conversation, even though it was only about
ordering a book. Then that communication may
be used to justify surveillance of you
whenever you talk to anyone else, in the
U.S. or in any foreign country.
This is blatantly unconstitutional, and it
is often fruitless. And we know it can
happen to anyone.
The Supreme Court has ruled that electronic
surveillance constitutes a search under the
Fourth Amendment. That amendment prohibits
warrantless searches and requires probable
cause of crime as the sole trigger for
judges to sign search warrants. FISA only
requires probable cause relating to a
foreign agent on one end of a phone call — a
far lower standard — to trigger a warrant.
The government has convinced the FISC that
it should grant warrants based on probable
cause of talking to someone who has ever
spoken to a foreign person, whether an agent
of a foreign government or an innocent
foreign bookseller.
That judicially created standard is so far
afield from the Fourth Amendment as to
render it legally erroneous and profoundly
unconstitutional. Yet the FISA expansion
that the president signed into law last
month — after the debate during which House
Intelligence Committee Republicans
intentionally remained mute about their
allegations of FISA abuses — purports to
make this Stasi-like level of surveillance
lawful.
The political use of intelligence data makes
the owner of the data a serious threat to
personal liberty, and it renders his
instruments monstrous.
Judge Andrew P. Napolitano is a graduate of Princeton University and the University of Notre Dame Law School. He is the youngest life-tenured Superior Court judge in the history of the State of New Jersey.
This article was originally published by "Creators" -
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