Spy­ing on you, spy­ing on me, spy­ing on the pres­i­dent

The pro­lif­er­a­tion of do­mes­tic sur­veil­lance makes a mock­ery of the Con­sti­tu­tion

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano — Jus­tice Louis D. Bran­deis, 1928 An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

“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.”

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 Mr. 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 in­tel­li­gence­gen­er­ated 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.

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 in­tel­li­gence­gen­er­ated data and use that data for po­lit­i­cal pur­poses.

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