Sheriff David Clarke, Ret.
A recently revealed court ruling received very little media attention. Most Americans are not aware that U.S. District Judge James Boasberg (an Obama nominee) issued a scathing indictment of our federal spy program. This ruling exposed improper searches of “tens of thousands” of illegal searches of raw intelligence databases, including 70,000 emails and telephone numbers, and other digital identifiers that were illegally searched. The Judge ruled that these searches were not consistent with the Fourth Amendment.
As serious as this ruling is, the media is preoccupied working on their partisan coup attempt of the Trump administration, masked as impeachment. While these liberal media hacks focus on the junk that has little impact on the American people, assaults on our liberty are a significant issue they are purposely marginalizing. Why? Keep reading.
In the months following the attacks of 9-11 the government took advantage of a nation still in shock. The government told Congress that if they only had the tools, they could prevent another attack but to do so we had to give away some essential liberties. Everybody in the media and Congress fell for it without much discussion because nobody wanted to be accused of aiding terrorists to attack again. We have to do something was the rallying cry. U.S. spy agencies knew they had an emotionally vulnerable public that could be easily persuaded to give away these essential liberties, thereby allowing the government broad surveillance authority to violate the Fourth Amendment in the name of national security. The government promised that they wouldn’t abuse it even though, by its very nature, intelligence work is highly intrusive. We were also promised strict oversight. They were required to self-report when abuses were discovered. Instead, this only became public after the FBI went to an appeals court to block the judgment against them and lost. Since its inception, I opposed the Patriot Act and its ugly stepsister the USA Freedom Act. This marks, perhaps, the only time I have ever sided with the American Civil Liberties Union on a law enforcement issue.
Giving the government unbridled authority to search into our digital lives without being suspected of wrongdoing and without probable cause is not consistent with a constitutional democracy and self-rule. It’s not whether the government can be trusted; instead, they should never be trusted. I believe our nation’s Founders also understood this. This is why we have a constitution, a pact between government and citizens limiting vast intrusions into our daily lives. I realize that government overreach has significantly expanded today, but a restrained federal bureaucracy is still the foundation of this republic.
The problem with the post 9-11 spying authority is that it allows the government to operate under a veil of secrecy. For example, the Foreign Intelligence Surveillance Act (FISA) gives the government the authority to work around the Fourth Amendment. But as we have seen with government agents requesting a search warrant or searching without one, the lack of an adversarial stage like in criminal courts, results in the loss of liberties. A core American principle is that a government working for the people must be transparent to the people. The government’s claim that more transparency would hamper an investigation is nothing more than hyperbole. Nobody contests that platitude and government agents know it. Foreign Intelligence Surveillance Court- FISC judges, do not have the experience in spy operations to be able to ask pointed questions to test the validity of an agent’s claims. As a result, most applications for a search warrant in a FISA court are nearly unanimously approved. The congressional staff that does most of the oversight work lack the same experience about how these operations work, so they sit there and nod in agreement with whatever crap an experienced spy agency bureaucrat feeds them. Recall that the FBI went to a FISC to request a warrant to spy on the Trump campaign and were granted one based on a fake dossier. Even if an oversight committee asks relevant questions, the answer more times than not is that answering would jeopardize national security. That is coded language for, “we don’t want you to know because the answer would embarrass us.” Thus the FISC has become a rubber stamp on government testimony in a search warrant request or in operations called “sneak and peek” where they search digital data without a warrant. Government agents then hide what they do by classifying it as top secret. This is a problem. As we are seeing, when no one is watching, abuse runs rampant.
An important question in these government surveillance abuses is who did it and what consequences will there be for this severe breach of people’s privacy. We never hear who specifically violated the Constitution or how they will be disciplined. Again it’s because the government operates in the dark. The agent responsible should be publicly named. This alone will make them think twice about skirting the Constitution because of public shame and humiliation. When a court finds that a local law enforcement officer violated someone’s Fourth Amendment rights, the evidence is thrown out, and that particular officer’s identity can be learned through public information disclosure. They can face criminal indictment under a 1983 claim for instance for violating a person’s rights under the color of law or civil court sanctions. That serves as a deterrent and accountability. With federal agents engaged in surveillance operations that are hidden from public view, it becomes impossible to hold people accountable.
Apparently court decisions like this aren’t sexy enough for headline coverage in major newspapers or cable news. Congress currently is too preoccupied with the kabuki theater of impeachment. Will Adam Schiff call for hearings, demanding our civil liberties be protected from abuse? No. My suggestion is that they stop the political game-playing and work on something of value to the American people like their oversight responsibility of our spy agencies to prevent these abuses. I know. Wishful thinking.