Constitutional Protections Null and Void

 FBI Abuse of Key Intelligence Surveillance Authority

Posted By Michael Webster

The Court charged with overseeing US surveillance authorities has rendered a bombshell ruling: the Federal Bureau of Investigation is using authorities aimed at surveilling foreigners abroad to investigate Americans impermissibly. Instead of using Section 702 of the Foreign Intelligence Surveillance Act (FISA) to prevent foreign terrorist attacks and collect foreign intelligence, it used information collected under this program to vet Americans who wanted to become police officers, to vet American college students participating in a “Collegiate Academy,” and to check out Americans who had visited an FBI office. In one stunning disclosure, the Foreign Intelligence Surveillance Court (FISA Court) found that the FBI used the identifiers of 16,000 Americans to comb through the data collected under this program, even though the FBI could legally justify only seven of those 16,000 queries based on the required foreign intelligence or crime-fighting purposes.

The revelation appeared in a December 2019 opinion of the super-secret FISA Court that intelligence officials did not release until today.

The intelligence authority – Section 702 of the Foreign Intelligence Surveillance Act, 50 USC 1881a – dates to 2008 and was justified as being necessary to fight terrorism. It enables the government to compel companies under U.S. jurisdiction to disclose communications of foreigners abroad who can be targeted without any showing of wrongdoing, of ties to a foreign terrorist organization, foreign government or other foreign power, and without any finding by the FISA Court regarding the specific targeted person.

Because the criteria for surveillance are so minimal, tens of thousands of foreigners abroad are targeted each year, and their stored and real time communications are collected in a vast database for future use. There were 204,968 targets of Section 702 surveillance in 2019 alone. It is this database that the FBI is querying to investigate Americans, whose communications may appear in the database because they communicated with a target or were targeted inadvertently.

The FISA Court also criticized the FBI for failing to abide by court-approved targeting procedures that required it to retain the search terms it used to query the data about Americans, and to retain the factual justification for making the queries. Such information is essential for oversight of the program by the FISA Court, by Congress, and by agency inspectors general.

CDT has long called for the government to narrow the scope of this program to protect the rights of foreigners abroad, as well as the rights of Americans. In July, the Court of Justice of the European Union struck down a key data sharing agreement with the U.S. in part because of the threat this authority represents to the privacy rights of citizens of EU countries.

The FISA Court’s opinion ultimately approved the Section 702 procedures and certifications that the government submitted to it. But its criticism of the FBI’s conduct demonstrates the vast authority the program grants to spy on Americans, and shows that reforms to Section 702 are long overdue.

Welcome to the new total security state. The U.S. government now has at its disposal a technological arsenal so sophisticated and invasive as to render any constitutional protections null and void. And these technologies are being used by the government to invade the privacy of the American people. 

GPS tracking and secret spying on Americans. As a case before the U.S. Supreme Court makes clear, the government is taking full advantage of GPS technology to keep tabs on American citizens, and in the process, is not only violating the Fourth Amendment's prohibition against unreasonable searches and seizures but is putting an end, once and for all, to any expectation of privacy in public places.

Internet surveillance. In late July 2011, the House Judiciary Committee passed the “Protecting Children from Internet Pornographers Act of 2011,” which laid the groundwork for all internet traffic to be easily monitored by government officials.

Intrusive pat-downs, virtual strip searches and screening stations. Under the direction of the Transportation Security Administration (TSA), American travelers have been subjected to all manner of searches ranging from whole-body scanners and enhanced patdowns at airports to bag searches in train stations. Some security experts predict that checkpoints and screening stations will eventually be established at all soft targets, such as department stores, restaurants, and schools.

More powers for the FBI. As detailed in the FBI’s operations manual, rules were relaxed in order to permit the agency’s 14,000 agents to search law enforcement and private databases, go through household trash, and deploy surveillance teams, without having any factual basis for suspecting them of wrongdoing. These new powers extend the agency’s reach into the lives of average Americans and effectively transform the citizenry into a nation of suspects, reversing the burden of proof so that we are now all guilty until proven innocent.

Patriot Act redux. Congress pushed through a four-year extension of three controversial provisions in the USA Patriot Act that authorize the government to use aggressive surveillance tactics in the so-called war against terror. Since being enacted in 2001, the Patriot Act has driven a stake through the heart of the Bill of Rights.

Drones over America. Legislation allowing drones—pilotless, remote-controlled aircraft that have been used extensively in Iraq, Afghanistan and Pakistan—to fly in general American airspace cleared Congress. However, police agencies across the nation are already beginning to use spy drones. Just recently, police in North Dakota arrested a family of farmers using information acquired by a spy drone.

Increased arrests for recording encounters with police. Thanks to ubiquitous cell phone technology, more Americans are recording police encounters. Consequently, police have begun arresting those who attempt to record them, citing wiretap laws as justification for the arrests.

Terrorism Liaison Officers. In another attempt to control and intimidate the population, the government has introduced Terrorism Liaison Officers (TLOs) into our midst. These individuals are authorized to report “suspicious activity” which can include such innocuous activities as taking pictures with no apparent aesthetic value, making measurements and drawings, taking notes, conversing in code, espousing radical beliefs, and buying items in bulk.

Fusion centers. TLOs report back to so-called “fusion centers”—data collecting agencies spread throughout the country, aided by the National Security Agency—which constantly monitor our communications, everything from our internet activity and web searches to text messages, phone calls and emails. This data is then fed to government agencies, which are now interconnected—the CIA to the FBI, the FBI to local police—a relationship which will make a transition to martial law that much easier.

Merger of the government and the police, and the establishment of a standing army. At all levels (federal, local and state), through the use of fusion centers, information sharing with the national intelligence agencies, and monetary grants for weapons and training, the government and the police have joined forces. In the process, the police have become a “standing” or permanent army, one composed of full-time professional soldiers who do not disband.

Court rulings affirming the right of police to invade our homes without warrants. In Barnes v. State, the Indiana Supreme Court broadly ruled that citizens don’t have the right to resist police officers who enter their homes illegally, which is the law in most states. In Kentucky v. King, the U.S. Supreme Court gave police carte blanche authority to break into homes or apartments without a warrant.

Bringing the war home. America became the new battleground in the war on terror. A perfect example of this is the National Defense Authorization Act of 2012. Contained within this massive defense bill are several provisions which, taken collectively, re-orient our legal landscape in such a way as to ensure that martial law, rather than the rule of law—our U.S. Constitution, becomes the map by which we navigate life in the United States. In short, this defense bill not only decimates the due process of law and habeas corpus for anyone perceived to be an enemy of the United States, but it radically expands the definition of who may be considered the legitimate target of military action.

What does 2012 hold for us? Only time will tell. But as Jane Addams, the first U.S. woman to receive the Nobel Peace Prize advised, “America’s future will be determined by the home and the school. The child becomes largely what he is taught; hence we must watch what we teach, and how we live.” If we want to avert certain disaster in the form of authoritarianism, then we’d do well to start teaching the principles of freedom to our young people right away and hope the lesson sticks.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. Information about The Rutherford Institute is available here www.rutherford.org.  Part by Greg Nojeim