I
have argued for a few weeks now that House Intelligence Committee members have
committed misconduct in office by concealing evidence of spying abuses by the
National Security Agency and the FBI. They did this by sitting on a four-page
memo that summarizes the abuse of raw intelligence data while Congress was
debating a massive expansion of FISA.
FISA
is the Foreign Intelligence Surveillance Act of 1978, which was written to
enable the federal government to spy on foreign agents here and abroad. Using
absurd and paranoid logic, the secret Foreign Intelligence Surveillance Court,
which only hears the government’s lawyers, has morphed “foreign intelligence
surveillance” into undifferentiated bulk surveillance of all Americans.
Undifferentiated
bulk surveillance is the governmental acquisition of fiber-optic data stored
and transmitted by nearly everyone in America. This includes all telephone
conversations, text messages and emails, as well as all medical, legal and
financial records.
Ignorant
of the hot potato on which the House Intelligence Committee had been sitting,
Congress recently passed and President Donald Trump signed a vast expansion of
spying authorities — an expansion that authorizes legislatively the domestic
spying that judges were authorizing on everyone in the U.S. without individual
suspicion of wrongdoing or probable cause of crime; an expansion that passed in
the Senate with no votes to spare; an expansion that evades and avoids the
Fourth Amendment; an expansion that the president signed into law the day
before we all learned of the House Intelligence Committee memo.
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The
FISA expansion would never have passed the Senate had the House Intelligence
Committee memo and the data on which it is based come to light seven days
sooner than it did. Why should 22 members of a House committee keep their
500-plus congressional colleagues in the dark about domestic spying abuses
while those colleagues were debating the very subject matter of domestic spying
and voting to expand the power of those who have abused it?
The
answer to this lies in the nature of the intelligence community today and the
influence it has on elected officials in the government. By the judicious,
personalized and secret revelation of data, both good and bad — here is what we
know about your enemies, and here is what we know about you — the NSA shows its
might to the legislators who supposedly regulate it. In reality, the NSA
regulates them.
This
is but one facet of the deep state — the unseen parts of the government that
are not authorized by the Constitution and that never change, no matter which
party controls the legislative or executive branch. This time, they almost blew
it. If just one conscientious senator had changed her or his vote on the FISA
expansion — had that senator known of the NSA and FBI abuses of FISA concealed
by the House Intelligence Committee — the expansion would have failed.
Nevertheless,
the evidence on which the committee members sat is essentially a
Republican-written summary of raw intelligence data. Earlier this week, the
Democrats on the committee authored their version — based, they say, on the
same raw intelligence data as was used in writing the Republican version. But
the House Intelligence Committee, made up of 13 Republicans and nine Democrats,
voted to release only the Republican-written memo.
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Late
last week, when it became apparent that the Republican memo would soon be
released, the Department of Justice publicly contradicted President Trump by
advising the leadership of the House Intelligence Committee in very strong
terms that the memo should not be released to the public.
It
soon became apparent that, notwithstanding the DOJ admonition, no one in the
DOJ had actually seen the memo. So FBI Director Chris Wray made a secret,
hurried trip to the House Intelligence Committee’s vault last Sunday afternoon
to view the memo. When asked by the folks who showed it to him whether it
contains secret or top-secret material, he couldn’t or wouldn’t say. But he
apparently saw in the memo the name of the No. 2 person at the FBI, Deputy
Director Andrew McCabe, as one of the abusers of spying authority. That
triggered McCabe’s summary departure from the FBI the next day, after a career
of 30 years.
The abuse
summarized in the Republican memo apparently spans the last year of the Obama
administration and the first year of the Trump administration. If it comes
through as advertised, it will show the deep state using the government’s
powers for petty or political or ideological reasons.
The
use of raw intelligence data by the NSA or the FBI for political purposes or to
manipulate those in government is as serious a threat to popular government —
to personal liberty in a free society — as has ever occurred in America since
Congress passed the Alien and Sedition Acts of 1798, which punished speech
critical of the government.
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What’s
going on here?
The
government works for us; we should not tolerate its treating us as children.
When raw intelligence data is capable of differing interpretations and is
relevant to a public dispute — about, for example, whether the NSA and the FBI
are trustworthy, whether FISA should even exist, whether spying on everyone all
the time keeps us safe and whether the Constitution even permits this — the raw
data should be released to the American public.
Where
is the personal courage on the House Intelligence Committee? Where is the
patriotism? Where is the fidelity to the Constitution? The government exists by
our consent. It derives its powers from us. We have a right to know what it has
done in our names, who broke our trust, who knew about it, who looked the other
way and why and by whom all this was intentionally hidden until after Congress
voted to expand FISA.
Everyone
in government takes an oath to preserve, protect and defend the Constitution.
How many take it meaningfully and seriously?
Reprinted with the author’s
permission.
Andrew
P. Napolitano [send him mail], a former judge of the Superior
Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge
Napolitano has written nine books on the U.S. Constitution. The most recent
is Suicide Pact: The Radical Expansion of Presidential
Powers and the Lethal Threat to American Liberty. To find out more
about Judge Napolitano and to read features by other Creators Syndicate writers
and cartoonists, visit creators.com.
Copyright © 2018 Andrew P. Napolitano
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