Late last week, Rep. Devin Nunes, R-Calif.,
chairman of the House Permanent Select Committee on Intelligence,
repeated his public observations that members of the intelligence
community -- particularly the CIA, the NSA and the intelligence division
of the FBI -- are not trustworthy with the nation’s intelligence
secrets. Because he has a security clearance at the "top secret" level
and knows how others who have access to secrets have used and abused
them, his allegations are extraordinary.
He pointed to the high-ranking
members of the Obama administration who engaged in unmasking the names
of some people whose communications had been captured by the country’s
domestic spies and the revelation of those names for political purposes.
The most notable victim of this lawlessness is retired Lt. Gen. Michael
Flynn, President Donald Trump’s former national security adviser, a
transcript of whose surveilled conversation with then-Russian Ambassador
to the United States Sergey Kislyak found its way into print in The
Washington Post.
During the George W. Bush and Barack Obama years,
captured communications -- digital recordings of telephone conversations
and copies of emails and text messages -- did not bear the names of
those who sent or received them. Those names were stored in a secret
file. The revelation of those names is called unmasking.
Nunes also condemned the overt pro-Hillary Clinton bias
and anti-Trump prejudice manifested by former CIA Director John
Brennan, former Director of National Intelligence James Clapper, former
FBI Director James Comey and their agents in the field, some of whose
texts and emails we have seen. The secrets that he argued were used for
political purposes had been obtained by the National Security Agency
pursuant to warrants issued by the Foreign Intelligence Surveillance
Court.
Yet Nunes voted to enhance federal bulk surveillance powers.
Bulk surveillance -- which is prohibited by the
Constitution -- is the acquisition of digital versions of telephone,
email and text communications based not on suspicion or probable cause
but rather on geography or customer status. As I have written before,
one publicly available bulk surveillance warrant was for all Verizon
customers in the United States; that’s 115 million people, many of whom
have more than one phone and at least one computer. And it is
surveillance of Americans, not foreigners as the Foreign Intelligence
Surveillance Act contemplates.
How did this happen?
It happened in the dark. The NSA has persuaded the
FISC, which meets in secret and only hears the government’s arguments,
to permit it to spy on any American it wishes on the theory that all
Americans know someone who knows someone else who knows someone who
could have spoken to a foreign person working for a foreign government
that could wish us ill.
This is the so-called judicial logic used to justify
the search warrant on all of Verizon’s customers. This is what happens
when judges hear only one side of a dispute and do so in secret.
The FISA amendments for which Nunes and other House
members voted, which are likely to pass in the Senate, would purport to
make bulk surveillance on all Americans lawful. At present, it is lawful
only because the FISC has authorized it. The FISA amendments would
write this into federal legislation for the next six years.
And these amendments would permit the FBI and any
American prosecutor or law enforcement agency -- federal, state or local
-- to sweep into the NSA’s databases, ostensibly looking for evidence
of crime. If this were to become law, there would no longer be any
unmasking scandals, because the stored data contains the names of the
participants in the communications and would be readily available for
harassment, blackmail or political use.
It would also mean that the Fourth Amendment to the
Constitution -- which guarantees privacy in our persons, houses, papers
and effects -- would have been gutted by the very officeholders who
swore an oath to preserve, protect and defend it.
Does the American public know this? Does the president?
Last week, I made an impassioned plea on Fox News
Channel directly to the president. I reminded him that he personally has
been victimized by unlawful surveillance and the political use of
sensitive surveillance-captured data; that the Constitution requires
warrants for surveillance and they must specifically describe the place
to be searched and the person or thing to be seized; that warrants must
be based on probable cause of individual behavior, not an area code or
customer list; that the purpose of these requirements is to preserve
personal privacy and prohibit bulk surveillance; and that he took an
oath to preserve, protect and defend the Constitution.
About an hour later, the president issued a tweet
blasting bulk surveillance and unmasking. Two hours after that, he
issued another tweet supporting the enactment of the FISA amendments.
What’s going on here?
I suspect that leaders in the intelligence community
hurriedly convinced the president that if he sets aside his personal
unhappy experiences with them and any constitutional qualms, they will
use the carte blanche in the FISA amendments to keep us safe. This is a
sad state of affairs. It means that Donald Trump changed his mind 180
degrees on the primacy of personal liberty in our once-free society.
The elites in the federal government and the deep state
-- the parts of the government that are unauthorized by the
Constitution and that operate in the dark, what candidate Trump called
“the swamp” -- have formed a consensus that marches the might of the
government toward total Orwellian surveillance.
This is a march that will be nearly impossible to stop.
This is the permanent destruction of the right to privacy. This is the
exaltation of safety over liberty, and it will lead to neither. This is
the undoing of limited government, right before our eyes.
