No Foreign Spy Program Reauthorization Without Citizen Protections
The federal government has no business using information gathered under the Foreign Intelligence Surveillance Act against Americans.
The federal government's greatest constitutional responsibility is keeping America safe and secure. One of many tools in its arsenal is the Foreign Intelligence Surveillance Act (FISA), which was meant to strengthen our ability to monitor foreign threats.
Since the intention of FISA is to spy on foreigners, we don't require that the government obey the Constitution. The Fourth Amendment protections of privacy are not extended to foreigners.
Congress agreed to a less-than-constitutional standard as long as the targets were foreigners in foreign lands. Even many privacy advocates can accept this lower standard for foreign intelligence. But few, if any, privacy advocates believe that information vacuumed up without constitutional protections should be used against Americans accused of domestic wrongdoing.
Unfortunately, that's what we believe is happening now. In the vast dragnet of data files collected on foreigners under Section 702 of FISA, millions of bits of information are also collected on Americans. We don't know the exact amount because our overlords in the intelligence community won't tell us.
Apologists for any and all spying on anyone anywhere, foreign or domestic, want to permanently reauthorize this program. Permanent reauthorization would mean Congress would never again debate or oversee any abuses in this spy program. I can't think of an approach more callous in its disregard for our cherished Bill of Rights.
I will do whatever it takes, including filibuster, to prevent any reauthorization without new constitutional controls on this program.
Are Americans currently caught up in this bulk collection of data? If so, how many innocent Americans are being swept up in this program? Well, that's part of the problem. Good luck finding out, even if you've been elected to Congress.
One grave danger we know about is so-called "incidental" data being used to prosecute Americans in domestic criminal cases. Such evidence should be inadmissible because it was collected without Fourth Amendment protections.
Some reformers believe that the government should not be able to search this massive database, or any database for that matter, without a judicial warrant. Absolutely, a warrant should be required, but really no information gathered without constitutional protection should be used, with or without a warrant, in domestic crime.
Should there be any exceptions? If a judge grants a warrant and a search discovers an American who has communicated with a foreign threat and can now be convicted of a national security or terrorism crime, then by all means, prosecution should be allowed to proceed.
But, if a search of the 702 data discovers incidental malfeasance such as a tax infraction, that data, with or without a warrant, should never be used in domestic prosecution.
Furthermore, the government should be disallowed from taking that information and developing a parallel construction of a case, where the illegally obtained information is not used in court but is used by law enforcement to develop other information to mount a prosecution.
Our Founders gave us the Fourth Amendment to prevent a tyrannical government from invading our privacy, and we are fools to relinquish that hard-won right because of fear. Some argue that "if you have nothing to hide, you have nothing to fear," but this is a slap in the face to our constitutional standard of "innocent until proven guilty."
Madison wrote that the chains of the Constitution are necessary because men are not angels. Bias enters into the minds of even the most well-meaning of souls.
Questions remain about whether high-ranking Obama administration officials, such as Susan Rice, "unmasked" Trump transition officials for political reasons. Questions remain about who in government feloniously leaked General Flynn's telephone conversation to the press.
Recent discoveries that a high-ranking FBI official and his mistress conspired with someone named "Andy" about an "insurance policy" to prevent Trump from becoming President should scare all impartial observers.
The bias and potential for bias among intelligence officials means we need more oversight, not less. Anyone who has witnessed the institutional bias and hatred of this president by the deep state should want more oversight of FISA's 702 program.
Such stories, and more, pose many questions that must be answered to reveal whether or not the real collusion of 2016 concerned any efforts to smear President Trump or even prevent him from taking office.
While I believe that most people within the intelligence community are hard-working, patriotic Americans with whom we can have an honest discussion about the best way to protect America, it only takes a handful in the right positions to corrupt the system, and we should find out more about what has really been happening behind the scenes.
Ultimately, this debate focuses on a truth that many seem to have forgotten: the Founders did not include the Fourth Amendment in the Bill of Rights as a suggestion.
It is a foundational element of what we are supposed to be as a nation and a concrete safeguard for our freedom against shifting political tides.
