OPINION:
When President Trump appointed an obviously unqualified friend, a homebuilder executive, to serve as acting director of national intelligence, he inadvertently drew attention to Section 702 of the Foreign Intelligence Surveillance Act.
The director of national intelligence is the head of the umbrella agency that gathers intelligence from the 18 federal spying agencies and from that data prepares and delivers the president’s daily briefing. Section 702, which permits warrantless spying, expires this month.
Mr. Trump prefers to receive his briefings directly from the CIA and its foreign colleagues, leaving the Office of the Director of National Intelligence as an appendage with little to do.
Nevertheless, the agency employs hundreds of spies and analysts, and most have national security clearances that permit them to view the nation’s most closely guarded secrets and to invade anyone’s privacy.
Section 702 of FISA theoretically permits federal agents to spy on foreign persons without warrants or suspicion. In reality, it is used as a fig leaf to spy on Americans.
A few years ago, Justice Department lawyers persuaded the FISA court to secretly permit the National Security Agency — America’s domestic spies — to spy on Americans with whom foreign persons communicate. That included even suspicionless Americans whose communications with foreigners are benign, even Americans removed by six degrees from conversations with foreigners.
Before 9/11, no law enforcement officer was permitted access to data obtained outside the restraints imposed by the Fourth Amendment to the Constitution. Those restraints prohibit searches and seizures — in the modern parlance, surveillance and data acquisition — without a search warrant issued by a judge based on probable cause of crime, sworn to under oath. The warrant itself must specifically describe the places to be searched and the persons or things to be seized.
Since 9/11, the wall between surveillance and law enforcement has collapsed, even though the feds still maintain that the Fourth Amendment regulates only law enforcement and not surveillance. This wild proposition is defied by the plain language of the amendment, which protects all persons from all government, and by the history of the Colonists dealing with British government agents executing general warrants issued by a secret court in London.
Those warrants permitted the bearers to arrest whomever they wished, to search wherever they chose and to seize whatever they found. Under the pretext of seeking evidence of crimes, such as failing to comply with the Stamp Act, these agents were actually looking for what the king considered subversive, such as a draft of the Declaration of Independence.
James Madison and his colleagues, who drafted the Fourth Amendment, surely knew that history and shared the near-universal Colonial revulsion at general warrants. Hence, the requirements in the amendment for probable cause of crime, sworn to before the warrant-issuing judge, and specificity in the warrant itself.
All this was crafted to outlaw general warrants and protect all persons in America from warrantless government assaults and invasions of their “persons, houses, papers, and effects.”
Now, back to FISA. FISA was crafted in reaction to President Nixon’s use of the CIA and FBI for warrantless domestic surveillance purposes. This was spying on Americans — opponents of the Vietnam War and Nixon’s political opponents — which, as we all now know, came crashing down on Nixon in the Watergate scandal.
FISA itself is deeply flawed. Rather than simply criminalizing all warrantless surveillance, it lowered the standard for authorizing surveillance and data acquisition, i.e., searches and seizures, from probable cause of crime — Madison’s gold standard for protecting privacy — to probable cause of communicating with a foreign person, a standard that by its nature implicates innocent Americans, unnamed in FISA warrants.
One infamous FISA warrant authorized the feds to seize the telephone records of all Verizon customers, some 115 million at the time.
Yet there is another side to this fig leaf. According to former NSA agents, FISA itself is a charade, as the domestic spies and their international cousins — the NSA and the CIA — have a manifest indifference to constitutional norms. Stated differently, they do not care about the Fourth Amendment or probable cause. They spy on whomever they wish, whenever they choose and seize whatever data they can.
If these former NSA agents are correct — I have known them for many years, and I believe them — then we have come full circle from the general warrant days, all under the guise of FISA.
FISA is pernicious not only because of its unconstitutional lowering of the standard for judicially issued searches and seizures but also because the NSA and the CIA — the latter prohibited by federal law from spying in the U.S. and from engaging in law enforcement — pretend to be complying with FISA court orders while spying on whomever they choose and lying about it.
Section 702 is a symbol, not a substantive provision. Stated differently, the spies will spy on us with or without 702 until we have a president who stops them and survives. The battle over 702 is symbolic of authoritarians versus constitutionalists, but its demise will just drive the spies deeper into the deep state.
It has come to stand for the power and fear the intelligence community wields over the executive branch that employs it and the Congress that funds and approves it.
On the eve of America’s 250th anniversary, we are asked to accept and pay for a government that knows more about us than we do about it. One whose rapacious and insatiable appetite for knowing our thoughts, impressions, feelings and emotions far exceeds anything the British agents sought from the Colonists who fought a bloody revolution over this.
The values that underlie the Fourth Amendment — the sovereignty of the individual, the right to be left alone, the promise of limited government — have been rejected by the folks we hired to protect them. Yet they are human values, and they will not rest.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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