Article 35 of the constitution of the People’s Republic of China guarantees “freedom of speech, of the press, of assembly, of association, and of demonstration.” Article 36 guarantees religious freedom including the right to believe in any religion. Article 37 prohibits illegal arrests and unlawful searches of Chinese citizens. Article 40 guarantees a Chinese citizen’s right to privacy of correspondence. Article 126 guarantees judicial independence without interference by any administrative organ, public organization, or individual.
Freedom House rates China as “not free” with a rating of 11 out of a possible 100. In spite of the beautiful words in its constitution, real power in China does not observe these rights. A constitution is a piece of paper. The powerful must respect and submit to it or it has no power.
In America, our Constitution is supposed to protect Americans from government snooping. While the framers might have feared overzealous constables with powdered wigs and silk stockings, the protection against unreasonable searches and spying is even more relevant today. With our most private secrets stored online, Americans are more vulnerable than ever to spying by our own government.
Over the past few weeks, we found ourselves distracted by the Ukraine farce, courtesy of the CIA and its allies in the media and Congress. You likely missed the release of a series of bombshell rulings that partially laid bare illegal spying on Americans by the FBI.
Gaming the System
The government has a special program to use powerful spying tools to mine online data. The program is authorized under the Foreign Intelligence Surveillance Act (FISA) and is supervised by a special federal court. From the comfort of an FBI desk, a curious agent can easily dig through records of a target. So long as the target isn’t American, the spying doesn’t violate the Constitution.
But these searches can be dressed up to find information on Americans by gaming the search terms. Congress passed laws that require the government to keep records of those searches so that a court could later review whether the search was legal intelligence gathering against foreign targets or illegal spying on an American.
We don’t have to wonder what happens when the government has access to the secrets of its citizens. It’s the favorite weapon of oppression in China. In the United States, J. Edgar Hoover used such information to build an unchecked empire within the government. When the elected leaders fear their cops, then elections don’t matter and we live in a police state. Since Hoover, our elected leaders have attempted to prevent the intelligence community from spying on Americans and seizing the kind of power that comes with knowing everyone’s secrets.
Elizabeth Goitein of Just Security recently wrote an outstanding history of the last eight years of constitutional abuses by the intelligence community. “The FBI routinely combs through [the secret database] looking for Americans’ communications to use in purely domestic cases, even in situations where the FBI lacks a factual predicate to open a full investigation,” Goitein writes. In 2011, the FISA court issued an opinion generally approving of the government’s proposed procedures for using this electronic database in compliance with the Constitution and legal safeguards.
But in a November 2015 opinion, the court expressed surprise when it learned that the government was holding onto records for later searching that should have been deleted to prevent unconstitutional searches.
Then, in 2017, the court exploded with fury. Abuse of the program became so widespread that the FBI had to hire contractors to help process all of the illegal spying. Worse yet, the intelligence community’s own inspector general issued a scathing report noting these violations but the government hid the report’s conclusions from the court. Finally, the head of the National Security Agency broke ranks and, on October 4, 2016, admitted that it had concealed the report from the court. The court noted the government’s “institutional lack of candor,” emphasizing that the widespread violations presented “a very serious Fourth Amendment issue.”
The FBI Hasn’t Changed
The FISA court’s April 2017 opinion roughly coincided with the departure of then-FBI Director James Comey, who was a key player in the FISA deception. This left civil libertarians with some measure of hope as the seemingly professional and reform-minded Christopher Wray assumed control of the FBI.
During his confirmation hearing, Wray said of the FISA process: “There are a number of oversight mechanisms built into the statutory framework . . . including the FISA Court itself . . . and I think that’s appropriate and I would look for ways to ensure the tool was used appropriately.”
But last week, our hopes were dashed. We just learned that for over a year the FBI has been secretly fighting a new scathing opinion from the FISA court.
The language of the opinion is quite technical. But, in essence, the FBI used the database to spy on a massive number of Americans without being able to explain why thousands of these Americans were targeted. The FISA court, in fact, released three opinions in October 2018. The first was the original finding of new violations. The second documented the FBI’s long and hard-fought opposition to the first opinion. The third acknowledges the FBI revised its procedures to comply with the first opinion.
The numbers are staggering. As noted by the court, in 2017, the FBI ran approximately 3.1 million queries against the database. The FBI was required by law to record how the search of data on Americans was “reasonably likely to retrieve foreign intelligence data information” or “evidence of a crime.” But the FBI did not record any such justification for thousands of searches. Worse yet, some of the searches were found to involve family members or other improper searches for personal reasons.
The FBI procedures for ensuring constitutional compliance were so lax, according to the court, “it appears entirely possible that further querying violations involving large numbers of U.S.-person query terms have escaped the attention of overseers and have not been reported to the Court.”
Not Even a Slap on the Wrist
The FISA Court appears unwilling or unable to sanction the government for its repeated violations of procedures that protect Americans from government spying. At the very least, Wray should be called to account by the attorney general. Not only did this latest round of constitutional abuses happen on his watch, but he also led a vigorous effort to keep the public from finding out about the abuses for over a year. If, in fact, Wray shirked his duty to ensure compliance with the Constitution, he should be fired immediately.
But Wray isn’t the only one. Recall, I mentioned that the CIA initiated the Ukraine farce just in time to distract from the opinion. Who’s the party responsible for handling the “whistleblower” complaint? As Julie Kelly notes, it’s none other than Michael Atkinson, the current inspector general for the intelligence community. Before assuming his current position, Atkinson was the senior counsel to the head of the NSA during the period in 2016 when the intelligence community deceived the FISA court. Because the CIA jointly certified compliance to the court, that would potentially give Atkinson jurisdiction to hear a whistleblower complaint about his own actions!
We’re at a crossroads in the history of our republic. We count on agencies like the FBI to protect Americans from Chinese-style tyranny, not to import it. Our government must not be allowed to scoff at our Constitution as the Communists do in China.