FISA Section 702 made it easier to spy on us
By: Andrew P. Napolitano
Columnist
..... When President Donald Trump appointed n obviously unqualified friend, a home builder executive, to be acting director of national intelligence, he inadvertently triggered attention to Section 702 of the Foreign Intelligence Surveillance Act. the director of nation intelligence is the head of the umbrella agency that gathers intelligence from the 17 federal spying agencies and, from that data, prepare sand delivers the president's daily briefing. Section 702, which permits warrant less spying,was set to expire two days ago.
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Trump prefers to receive his briefings directly from the CIA and its foreign colleagues, laving the DNI as an appendage with little to do. Nevertheless, the DNI employed hundreds of spies and analysts, and most of them 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 without warrants or suspicion on foreign persons. In reality, it is sued as a fig leaf to spy on Americans. A few yeas ago, Department of Justice lawyers persuaded the FISA court Agency - America's domestic spies - to spy on Americans whom foreign persons communicate; even suspicion less Americans whose communications with foreigners are benign: even Americans removed by six degrees from conversations with foreigners.
..... Before 9/11, no one in law enforcement 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. and 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 Forth Amendment regulates only law enforcement and not surveillance. This wild positron is defied by the plain language of the amendment, which protects all peons from all government, and by the history of the colonists dealing with British government agents exciting general warrants issued by a secret court in London.
..... Those warrants permitted the bearers to arrest whoever they wished, to search wherever they chose and to seize whatever they found. Under the pretext of looking for evidence of crimes, like failing to comply with the Stamp Act, these agents were truly looking for what the king consider subversive, like a draft of the Declaration of Independence.
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James Madison and his colleagues who drafted he Forth Amendment surely knew that history and shared the nearly universal colonial revulsion at general warrants. Hence the requirement in the amendment for probable cause of crime sown to before the warrant-issuing judge, and specificity in the warrant itself.
..... All of this crafted to outlaw general warrants and protect all persons in America from warrant-less government assaults and invasions of their "persons, houses, papers , and effects."
..... Now back to FISA. It was cerated in reaction to President Richard Nixon's use of the CIA and FBI for warrant-less domestic surveillance purposes. This was spying on Americans - opponents of the Vietnam ware 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 warrant-less surveillance, it lowered the standard for authorizing surveillance and data acquisition, i.e., searchers and seizures from probable case if crime - Madison's gold standard for protecting privacy - to probable cause of communicating with a foreign person, a standard that by ts nature implicates innocent Americans, unnamed in FSIA warrants.
..... One infamous FISA warrant authorized the feds to seize the telephone record s of all Verizon customers, some 115 million at the time.
Constitution? spies don't care
..... But there is another side to this flag leaf. According to former NSA agents, FISA itself is a charade, as the domestic spies and their international cousins - that's the NSA and the CIA - have a manifest indifference to constitutional norms. Stated different, they don't care about the Fourth Amendment or probable causes. They spy on whomever they wish, whenever they choose, and seize whatever data they can.
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If these former NSA agents are correct - I have known them for many years and I believe them - we have come full circle from the general warrant days, all under the guise of FISA.
..... FISA is pernicious not only because of tis 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, all the while spying on whomever they choose,and lying about it.
..... Section 702 is a symbol, but it is not substantive. Stated differently, the spies will spy on us with or without Section 702 until we have a president who stops them, and survives. The battle over Section 702 is symbolic of authoritarians versus constitutionalists, but its demise will just drive the spies deeper int the deep state. Section 702 has come to stand for the power and fear the intelligence community wields over the executive branch hat 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 value 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. But they are human values. And they will not rest.
.... Andrew P. Napolitiano, a former New Jersey Superior Court judge, has published nine books on the U.S. Constitution. To learn more, visit JudgeNap.com