Twenty-five years ago, the Arnold Schwarzenegger action hit “True Lies” depicted a jealous husband abusing his access to powerful tools intended to fight terrorism to discover whether his wife was having an affair. The character played by Tom Arnold lamely warns Schwarzenegger’s Harry Tasker that using government surveillance to spy on his wife is a crime (which is true) and that abusing these tools could land them both in prison.
Tasker retorts that they violate the law all the time. Once you have a person’s search history, access to her emails, text messages, and listen to her phone calls, it’s not hard to construct a blackmail scenario. But that could never happen in real life, right?
Wrong. In 2013, almost 20 years after the movie, Reuters reported that at least a dozen U.S. National Security Agency employees were caught using secret government surveillance tools to spy on the emails or phone calls of current or former spouses and lovers. The NSA has repeatedly promised to reform its procedures as the database it keeps on Americans continues to grow in scope and reach.
When you talk to your spouse, your child, or your lover in the presence of your electronic devices, those devices passively listen to what you’re saying just in case you say “Hey Siri,” or “Hey Alexa.” Have you ever noticed that when you suddenly develop an interest in a particular product or service, ads mysteriously seem to appear and follow you around?
Former FBI Director James Comey once admitted he covered his computer camera for his privacy. He would know. Just imagine a snooping government making a word-searchable transcript of audio and digital recording of video passively transmitted from your phone. What could a curious agent, with access to a feed from the two cameras in your phone, record while simultaneously viewing your private life in both directions?
Such data could give unlimited power to influence and blackmail elected officials, private citizens, judges, law enforcement, journalists, and so on.
When Americans see a public official or an influential journalist suddenly reverse a position or do something otherwise deemed illogical, speculation often runs to question whether “somebody has something on” that official. We should worry about the potential abuse of a database containing essentially unlimited source material that easily could be used to gain power over our fellow Americans.
Congress set up the Foreign Intelligence Surveillance Court to protect Americans from being spied upon by their own government.And we also know, as in “True Lies,” that NSA analysts “with greater frequency than previously disclosed . . . used U.S. person identifiers to query,” the giant NSA database. This abuse continues even after repeated promises to Congress and the FISC that NSA revised procedures to safeguard private information about Americans.
The NSA’s inspector general caught this wholesale abuse simply by reviewing a small sample of the searches of the database. “That relatively narrow inquiry found that [a redacted number of] analysts had made [a redacted number of] separate queries using,” names of U.S. citizens to search the database. The inspector general discovered this in the first three months of 2015.
On September 26, 2016, the government submitted to the supervising court a certification that failed to disclose the inspector general’s report even though it was well known by then to the signatories of that certification. Among the supporting affidavits falsely reassuring the FISC that the government was not abusing access to data on Americans: NSA Director Admiral Michael S. Rogers, FBI Director James B. Comey, and CIA Director John Brennan.
On October 24, 2016, in the early days of the Trump-Russia scheme then-dubbed “Crossfire Hurricane” and just a few days after the FISC issued a warrant authorizing surveillance on Carter Page, Rogers dashed to the FISC court to make an oral admission. Two days before the FISC was about to approve the government’s continued use of the database, Rogers admitted to significant “non-compliance” with the NSA’s procedures to protect the private information gathered on Americans from the prying eyes of curious analysts. Rogers amended his affidavit to address the falsehoods of his earlier affidavit supporting the September 2016 certification.
Comey and Brennan apparently did not.
In the October 26, 2016 hearing, “the Court ascribed the government’s failure to disclose” the explosive revelations of widespread abuse of Americans’ data, “to an institutional lack of candor” and “emphasized that ‘this is a very serious Fourth Amendment issue.’” The court further described the NSA’s abuse of the database as “widespread during all periods under review.”
Rogers Breaks Ranks
Shortly after the 2016 presidential election, Rogers then did something that incensed the Intelligence Community and its allies in the media: hemet with President-elect Trump without first giving President Obama a “heads up.” A cold slap of fear might have stung the offending intelligence officials as Rogers seemed to be tattling. This may explain why the Russia hoax accelerated after the election—to keep the incoming anti-swamp president from exposing their vast exploitation of the private information of Americans.
Georgetown University Law Center published an article arguing that the NSA gathering bulk information about Americans is simply unconstitutional. The NSA’s argument has been that the data is kept safe from unconstitutional searches until there’s a need for to search for a U.S. citizen in connection with a particular crime, at which point a warrant would be issued to “search” the data the government already scooped up. But we know from repeated experience that the database remains an irresistible temptation for bureaucrats looking for dirt on targets.
The government has repeatedly demonstrated that it won’t follow constitutional safeguards. The law review article noted, “As with general warrants, blanket seizure programs subject the private information of innocent people to the risk of searches and exposure, without their knowledge and with no realistic prospect of a remedy.” The article adds: “the seizure of papers for later search was an abuse distinct from, but equivalent to, the use of general search warrants—which is why ‘papers’ was included in the Fourth Amendment in addition to ‘effects’ or personal property.”
Comey and Brennan Have a Big Problem
“The FBI doesn’t spy on people,” Comey recently proclaimed in a public announcement of the same lie he made to the FISC in his affidavit. Under the statute, the FBI was not supposed to search the NSA database without a court order. The FISC noted that the FBI not only accessed the database, but it did so with such frequency that it resorted to the extra manpower of outside contractors to conduct the searches.
Every search by the FBI without a court order requesting data on an American is a potential crime punishable by a fine of up to $10,000 or imprisonment of not more than five years, or both. Comey submitted a false affidavit to deceive the court charged with protecting our constitution.
That seems like a good reason to interrupt the celebrity deep stater’s interminable publicity tour and hold him accountable. We don’t yet know the identities of the targets of these many searches or how that illegally-obtained information was used. Were wives blackmailed into humiliation? Were public officials coerced into changing positions? Were journalists forced to conform to the Intelligence Community’s talking points? It does seem puzzling that the media cheerleads so vigorously for our intelligence agencies. The victims, if they know what the government did, aren’t talking.
Rogers did the right thing by (eventually) coming clean to the FISA court on the widespread abuse of Americans’ data. But James Comey and John Brennan do not appear to have taken any steps to correct their affidavits certifying that the data was not used improperly. The FISC court did not provide numbers but it’s reasonable to infer that the term “widespread” in reference to ongoing violations by multiple officials could mean thousands of felonies under the cover of the Comey and Brennan affidavits that apparently remain uncorrected, in spite of having been found false by a published court opinion.
Comey and Brennan should be prosecuted and the evidence is in plain sight.
The great gift that Donald Trump gave America may be that he tempted the intelligence community to the task of interfering with an American election and undermining a duly elected president. The abuses related to Trump appear to be the tiny tip of a much larger iceberg that we might never have spotted as our intelligence agencies increasingly seem to see their role as “protecting” us from our own constitutional rights.
James Comey and John Brennan (among others) presided over an assault on the constitutional right to keep the government out of our emails, texts, phone calls, and other data. Our republic must hold them to account. As Roman scholars once observed, ubi jus ibi remedium—”a right must have a remedy.” If no action is taken against those who trampled on our Fourth Amendment rights, then no right remains.
Photo credit: Saul Loeb/AFP/Getty Images