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.
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 was the youngest life-tenured Superior Court judge in the history of New Jersey. He is Fox News’ senior judicial analyst. Napolitano has been published in The New York Times, The Wall Street Journal, and numerous other publications. He is the author of the best-seller, "Lies the Government Told You: Myth, Power, and Deception in American History." For more of Judge Napolitano's reports, Go Here Now.