Wednesday, February 26, 2020

A Failure To Understand, Or An Outright Deceit?

     The Foreign Intelligence Surveillance Court (FISC) was one of the most significant consequences of the Foreign Intelligence Surveillance Act of 1978. I don’t remember the debates over it, if there were any. (I can hear you drawling “Finally, something he doesn’t remember.” To remember something, I have to notice it.) What’s become clear, forty-two years since the passage of that Act, is that the Court has routinely been abused by federal agents and those who direct them. Its employment to spy on the Trump for President Campaign is only the most egregious example.

     Today Congress confronts the question of whether or not to reauthorize some of the Court’s powers. Yesterday, The Last Refuge linked to this story about the reauthorization:

     WASHINGTON — Attorney General William Barr told Senate Republicans on Tuesday that the Trump administration could support a clean extension of contentious surveillance laws set to expire next month. And Barr said he could make changes on his own to satisfy President Donald Trump and his allies who have railed against the use of the law to monitor his 2016 campaign, according to senators at a party briefing.

     But Barr also clashed with GOP critics of the Foreign Intelligence Surveillance Act, which has three key provisions set to lapse on March 15.

     […] Republicans emerged from the lunch meeting mostly supportive of a clean extension of the law to avoid a gap; doing so is a top priority of Senate Majority Leader Mitch McConnell (R-Ky.).

     “The attorney general just wanted to underscore again the importance of these provisions that were enacted in the wake of the 9/11 attack. They’re still relevant to our effort to go after terrorists today like they were after 9/11,” McConnell told reporters.

     But Barr also sparred with skeptics, primarily libertarian-leaning Sens. Mike Lee of Utah and Rand Paul of Kentucky, according to two people familiar with the meeting. Barr told Lee his criticisms of surveillance law are dangerous, while Paul said Americans shouldn’t be subject to secret FISA courts, one of the people said.

     The first paragraph is the one that has my head reeling. In effect Barr is saying that “You can trust us; we won’t abuse it.”

     The FISC is a secret court with the power to violate the Fourth Amendment rights of every American. Its operations aren’t even visible to the lawmakers who’ve been asked to reauthorize it. And it has been outrageously abused in the recent past. But Attorney-General Barr proclaims that his “changes” would render it trustworthy.

     Owing to the limits on Barr’s authority, the only changes he could make would be entirely administrative and organizational. So he’s saying that his administration of the Justice Department – in essence, his oversight of the department and its thousands of agents and employees — would render this secret court and its extra-Constitutional powers trustworthy. Harmless. Never again to be used against a political campaign or any other invalid target. Because AG Barr will be on the job, ceaselessly vigilant against further abuses.

     Can my Gentle Readers detect a smidgen of doubt in my exposition? Do they share that doubt?

     Until now, I’ve had a positive opinion of AG Barr. This episode has cut rather deeply into it.

     Allow me to cite an old essay of mine. It concerns a shibboleth that’s been used relentlessly and remorselessly to abridge Americans’ rights:

     It's not generally known how new the phrase "national security" is to our political lexicon. It first made its appearance in the first post-World War II years, when various persons inside and outside the Truman Administration were seeking rationales for retaining the greatly enlarged military that had been mustered and funded to win the war. It was "institutionalized" in the National Security Act of 1947, the very first Act of Congress to define "transnational threats" to the "national security:"
     For purposes of this subsection, the term "transnational threat" means the following:
     (A) Any transnational activity (including international terrorism, narcotics trafficking, the proliferation of weapons of mass destruction and the delivery systems for such weapons, and organized crime) that threatens the national security of the United States.
     (B) Any individual or group that engages in an activity referred to in subparagraph (A).

     [Sections 101.i.5 (A), (B)]

     Note that the enumerated "transnational threats" are not all the "transnational threats." More strikingly, though the terms "national security" and "national security interests" occur innumerable times in the text of the Act, the "national security" and "national security interests" of the United States are never defined.

     Do you think you know what those sonorous phrases mean?...

     When a word or phrase is without a definition, we must infer its meaning from the applications to which it's put. Looking back over the history of its use, what might we deem the "national security" of the United States to be, solely from the subjects to which it's been applied?

     My first observation in this regard is that the sitting president is the de facto authority on the matter. In practice, if the president says that such-and-such is "a matter of national security," then it is -- whether the proclamation comes before or after the fact. Therefore, one cannot be sure one has not trespassed into a "national security" matter even long after the fact, for the president's unprecedented ex post facto power over such things is unbounded and has no time limit.

     My second observation, which descends from the first, is that the use of the Act's criminalization provisions:

     (c)Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States, shall be fined under title 18, United States Code, or imprisoned not more than three years, or both.
     (d) A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

     [Sections 601 (c), (d)] thus wholly at the discretion of the sitting president, and therefore an offense not defined in statute law.

     A sitting president can criminalize an act as a threat to the "national security" many years after the event.
     A sitting president can reverse the decisions of a previous president about threats to the "national security."
     The only defense that can be mounted against such a charge:

     It is a defense to a prosecution under section 601 that before the commission of the offense with which the defendant is charged, the United States had publicly acknowledged or revealed the intelligence relationship to the United States of the individual the disclosure of whose intelligence relationship to the United States is the basis for the prosecution. [Section 602 (a)]

     ...requires the cooperation of the prosecuting entity.

     Still think you know what "national security" means?

     The FISA Act and the FISC Court are routinely defended as necessary for our “national security.” I think there’s a better argument that our security as a free people is mortally threatened by the existence of this scheme. Whenever men with official positions are allowed to operate in secret, their only oversight being others of their kind, government becomes not merely untrustworthy but actively voracious: a machine that will consume the lives, liberties, and property of those it claims to “serve.” The motivations of those doing the consuming are hardly of interest. They could have the noblest motives on Earth. What matters is that there is effectively no deterrent to the abuse of their powers. When there is no deterrent to evil, the ascension of evil is guaranteed.

     I could go on about countermeasures to terrorism, both threatened and actual, but for this morning the above considerations are more important. Do we want to be a free people with the right “to be secure in their persons, houses, papers, and effects” — ? Or are we willing to surrender those rights out of fear, in the name of “national security?”

     Think about it.


Linda Fox said...

This has me completely on your side. No reason to continue to give them a way to sidestep meaningful oversight and protections, just because it might be useful in an emergency.

The actual emergencies always seem to be handled using normal means. Which leaves these end-runs around the Constitution being used against political enemies.

Paul Bonneau said...

I agree completely.

The FISA act and its courts are just another fig leaf covering and providing excuses for ruling class tyranny. It should be no surprise that even those in the ruling class who were its victims, support it now that they are in the driver's seat.

As to constitutions, they are an 18th century meme that simply do not work as advertised - more ruling class window-dressing enabling the tyranny behind them. It was always so. The only thing that is new, is that the violations have become so numerous and blatant.

There is no voting our way out of this.