John R. Houk
© June 3, 2017
Since September 11, 2001 I have been very supportive of the Foreign Intelligence Surveillance Court (FISC) siding
on the side of Security looking for foreigners with Islamic terrorist
sympathies. Which means I was ok with Foreign Intelligence Surveillance Act (FISA) secret warrants to into domestic
suspects that were foreign culprits or aiding and abetting Islamic terrorist
sympathizers. I was quite ignorant that FISC was created by FISA by an act of
Congress in 1978.
Even though I am
not a great mathematician, it is not hard to figure out 1978 is way before
2001. That means the government was given legal authority to spy on Americans
before Islamic terrorism. This is a HUGE Fourth Amendment violation issue.
The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
The issue with a FISA secret warrant is that it fails with “probable
cause” and/or “particularly describing the place to be searched, and the
persons or things to be seized.”
Much to the Leftists horror, I do not believe foreigners
deserve the full scope of the 4th Amendment as do U.S. Citizens. Thus
I am good with secret warrants on potential foreign adversaries of the U.S.
Government and adversaries American citizens that should benefit from the full
protections a citizen is entitled to.
But another sketchy issue has arisen largely to the
admittance of Muslim immigrants and refugees into the USA. That sketchy issue
is that 2nd generation sons and daughters of the original Muslim
immigrants and refugees have become U.S. citizens (naturalized and natural
born) entitled to the full protections the citizenry deserves.
Now that I am convinced that Obama ordered the intel
organizations to spy on Americans for political reasons more than to protect
Americans from Islamic terrorists or foreign spies, FISA needs to be abolished
OR at the very least reformed to conform to the intent of the Fourth Amendment.
JRH 6/3/17
****************
By Judge Andrew P. Napolitano
June 2, 2017
"The makers of our
Constitution ... conferred, as against the Government, the right to be let
alone — the most comprehensive of rights and the right most valued by civilized
men." — Justice Louis D. Brandeis, 1928
After the Watergate era had ended and Jimmy Carter was in
the White House and the Senate's Church Committee had attempted to grasp the
full extent of lawless government surveillance in America during the LBJ and
Nixon years, Congress passed the Foreign Intelligence Surveillance Act. FISA
declared that it provided the sole source for federal surveillance in America
for intelligence purposes.
FISA required that all domestic intelligence surveillance be
authorized by a newly created court, the Foreign Intelligence Surveillance
Court. Since 1978, FISC has met in secret. Its records are unavailable to the
public unless it determines otherwise, and it hears only from Department of
Justice lawyers and National Security Agency personnel. There are no lawyers or
witnesses to challenge the DOJ or the NSA.
Notwithstanding this handy constitutional novelty, the NSA
quickly grew impatient with its monitors and began crafting novel arguments
that were met with no resistance. Those arguments did away with the kind of
particularized probable cause about targets of surveillance that the
Constitution requires in favor of warrants based on the probability that
someone somewhere in a given group could provide intelligence data helpful to
national security, and because the FISC bought these arguments, the entire
group could be spied upon. The FISC unleashed the NSA to spy on tens of
millions of Americans.
That was still not enough for the nation's spies. So
beginning in 2005, then-President George W. Bush permitted the NSA to interpret
President Ronald Reagan's executive order 12333 so as to allow all spying on
everyone in the U.S., all the time. The NSA and Bush took the position that
because the president is constitutionally the commander in chief of the
military and because the NSA is in the military, both the president and the NSA
are lawfully independent of FISA.
The NSA does not acknowledge any of this, but we know from
the Edward Snowden revelations and from the testimony of a former high-ranking
NSA official who devised many of the NSA programs that this is so.
The NSA's use of FISC-issued warrants is only one of a
half-dozen tools that the NSA uses, but it is the only tool that the NSA
publicly acknowledges. FISC-issued warrants do not name a person as a suspect;
they name a category. For example, it could be customers of Verizon, which
includes 115 million people. It could be telephones and computers located at
721-725 Fifth Ave. in New York; that's Trump Tower. It could be all electronic
devices in the 10036 ZIP code; that's midtown Manhattan.
When the NSA obtains a FISA warrant and captures a
communication, the participants often mention a third person. The federal
"minimization" statute requires the NSA to get a warrant before
surveilling that third person. Last week, we learned that last month, the FISC
rebuked the NSA for failing to minimize by continuing to surveil third parties
to the sixth degree without warrants.
Here is an example of warrantless surveillance to the sixth
degree. The NSA surveils A and B pursuant to a FISC-issued warrant; A and B
discuss C; the NSA, without a warrant, surveils C talking to D; C mentions E,
and D mentions F; the NSA surveils E and F without warrants, etc. This
continues going out to six stops from the A-and-B conversation, even though
this is prohibited by federal law. The final stop, which involves huge numbers
of people, has been proved to have no connection whatsoever to the warrant
issued for A and B, yet the NSA continues to spy there.
But it doesn't stop there. The Bush interpretation of EO
12333 is still followed by the NSA. Its logic — "I am the commander in
chief, and I'll do what I need to do to keep us safe, and the NSA can do what I
permit" — permits universal surveillance in flagrant violation of FISA and
the Constitution. It was used to justify the surveillance of Donald Trump
before he was inaugurated. It no doubt still is.
The availability of the information acquired by this massive
spying is a serious threat to democracy. We know from the Susan Rice
admissions that folks in the government can acquire intelligence-generated data
— emails, text messages, recordings of telephone conversations — and use that
data for political purposes. Just ask former Lt. Gen. Michael Flynn.
And we know from recent tragedies in San Bernardino and
Orlando, even Manchester, that the NSA is suffering from information overload.
It has too much data to sift through because it does not focus on the bad guys
until after the tragedies. Before the tragedies, it has no focus.
The now public rebuke of the NSA by the FISC is
extraordinary, but it is also a farce. The FISC is virtually owned by the NSA.
That court has granted 99.9 percent of requests made by the NSA since the court
was created. Despite all the public revelations, the FISC looks the other way
at non-FISC-authorized NSA spying. The judges of the FISC have become virtual
clerks for the NSA. And the FISC has become an unconstitutional joke.
Where does all this leave us? It leaves us with a public
recognition that we are the most spied-upon people in world history and that
the president himself has been a victim. This fall, the NSA will ask Congress
to reauthorize certain spying authorities that are due to expire at the end of
the year. Congress needs to know just how unconstitutional, intrusive and
fruitless all this spying has become.
Perhaps then Congress will write laws that are faithful to
the Constitution — and if so, maybe the folks empowered by those laws will
follow them.
________________
Bring FISA Warrants Back
to the Constitution
John R. Houk
© June 3, 2017
_______________
Spying on You, Spying on
Me, Spying on the President
Andrew P. Napolitano, a
former judge of the Superior Court of New Jersey, is the senior judicial
analyst at Fox News Channel. Judge Napolitano has written seven books on the
U.S. Constitution.
© 2017 ANDREW P. NAPOLITANO
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