“We may even cheer on those who ask us to … forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.
“And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”
— Supreme Court Justice Neil M. Gorsuch, May 18, 2023
In response to President Richard Nixon’s unlawful use of the FBI and the CIA to spy on his domestic political opponents in the early 1970s, Congress enacted the Foreign Intelligence Surveillance Act. It limits all domestic surveillance not for law enforcement purposes to the procedures set forth in the act.
Thus, if federal agents suspect you are a drug dealer and have probable cause of crime to present to a judge, the judge may sign a search warrant enabling the feds to listen to your conversations and monitor your text messages and email. That’s ordinary law enforcement, and that’s pursuant to the Fourth Amendment to the Constitution.
But if the feds don’t know who you are but know that you live in a community that has people who think differently than they do about national security, they can go to the FISA Court and present probable cause — not of crime but of a likelihood of someone communicating with foreigners — and that court, which grants 99.96% of requested search warrants, will issue the same search warrant authorizing the same level of government scrutiny as if the feds were looking for evidence of a crime.
This is all consistent with FISA, but because it directly violates the Fourth Amendment, it is profoundly unconstitutional.
When the feds have told a federal judge what their probable cause is, what they are looking for, why they believe they will find it and who they think is engaged in criminal activities, they are entitled to a warrant. As the amendment requires that all search warrants specifically describe the place to be searched and the person or thing to be seized, the feds know that they need to demonstrate a level of knowledge and specificity — probable cause of crime — to the judge from whom they are seeking a warrant.
In the case of FISA, the feds do not know what or whom they are looking for. One infamous FISA search warrant permitted the feds to capture all telephone calls transmitted on fiber-optic cables used by Verizon, which at the time had about 115 million customers.
The FISA warrants are lawful but profoundly unconstitutional because there is no probable cause of crime. Nor does the warrant specifically describe the place to be searched or the person or thing to be seized. The FISA warrant issued for all Verizon customers is a general warrant — search where you wish and seize what you find. General warrants were directly outlawed by the Fourth Amendment.
Shortly after the 9/11 terrorist attacks, in order to divert scrutiny from his own sleepy incompetence, then-President George W. Bush sought an amendment to FISA that would enable the feds to engage in warrantless telephone, text messaging and email surveillance upon foreign persons.
Even though the Fourth Amendment protects all people — good people, bad people, Americans, foreigners, people the government hates, people the government fears — Mr. Bush convinced a compliant Congress that there was much to fear from foreign persons. It was an emergency, he said, and time for the Constitution to bend before it breaks. Congress, afraid to do nothing, gave Mr. Bush these unconstitutional powers to spy on foreigners.
Congress enacted Section 702 of FISA, which expires in six months.
Section 702 directly contradicts the core language of the Fourth Amendment. On its face, it permits the feds to conduct warrantless surveillance on foreign persons who are either physically or digitally present in the United States and all with whom they communicate — American or foreign — who are here.
Thus, for example, if you call or text or email a bookseller in London from your home in New York or your cousin in Paris calls or texts or emails you at your home in Texas, the feds can capture all those communications without a search warrant.
And then the feds can capture the future calls you make and texts and email you send. And then they can capture all the communications of the persons you reached and all the persons they reached. As this extends on and on to the sixth degree, the numbers grow exponentially to hundreds of millions.
When the feds engage in all this capturing, they can access data only with respect to foreign persons. So, if a janitor in the Russian Embassy is really a Russian spy trying to flip an American and the feds hear this, they can summarily ship the so-called janitor back to Russia.
But if the American is also engaged in bank fraud, the feds need a search warrant to access the 702 database that contains that evidence.
Last week, a FISA Court judge revealed that the FBI routinely accesses the 702 database without search warrants. The feds did this to 19,000 donors to a congressional candidate, to the people caught up in the Jan. 6, 2021, events at the Capitol, to a member of Congress, and to those participating in and observing Black Lives Matter activities on the West Coast a few summers ago.
And then this FISA Court judge — heedless to the Constitution and fearful of God only knows what — permitted the feds to retain what they unlawfully and unconstitutionally stole. They accessed the Section 702 database by computer hacking — the same crimes for which the same feds prosecute dozens of people annually.
Here we go again. Does the government work for us, or do we work for the government? What employee gets away with spying on his employers? What emergency will the government concoct next?
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.
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