Judge Andrew P. Napolitano: The FBI and Personal Liberty

The Patriot Act of 2001 made the Constitution more brittle than it was. It also sacked the Constitution’s ability to recognize the importance of the “wall” Between federal law enforcement officials and federal spies. The Foreign Intelligence Surveillance Act (78) established the wall. This law statutorily restricted all federal domestic spying only to what was authorized by Foreign Intelligence Surveillance Court.

The wall was designed to block law enforcement from accessing data gathered by America’s domestic spying agencies.

For a long time, those of us who monitor government destruction of personal freedoms have been warning that spying is rampant across the United States. This is because the Fourth Amendment is not being respected by law enforcement. The FBI admitted this fact last week.

Here’s the backstory.

Congress began investigating President Richard Nixon’s abuse of the FBI/CIA as domestic spying agents after he resigned from the presidency. Some spying was done on political dissenters, while others were on political opponents. None of this was legal.

What is lawful spying exactly? The Supreme Court has clarified that domestic spying does not constitute lawful spying. “search” It is also possible to acquire data by conducting a search. “seizure” The Fourth Amendment. The Fourth Amendment requires that a warrant be issued to search or seize property by a judge who has been sworn to probable cause of the crime. The amendment requires that search warrants specify the place to searched and the person or things to be seized.

Because of British general warrants and colonial hatred, the Fourth Amendment’s language is among the most precise in Constitution. A secret London court issued a general warrant to British agents. General warrants didn’t require probable cause. “governmental needs.” Of course, this was not the standard, and any government can claim it has what it needs.

As well, general warrants didn’t specify what was to searched or seized. They authorized agents to search any place they wanted and seize anything they found.

After learning of Nixon’s excesses it passed FISA. This required that domestic spying must be authorized by the secret FISA Court. The probable cause standard for the FISA Court was lowered to probable cause to be a foreign agent. Congress also authorized the FISA Court’s issuance of general warrants.

How can Congress, which is a creature of Constitution, alter standards set by it? Answer: This is not legal or constitutionally possible. However, it did.

But, the FISA compromise that was engineered to attract congressional votes was actually the wall. The wall contained regulatory language that indicated that data obtained from surveillance under FISA warrants could not be shared.

If a Russian embassy janitor was in fact a KGB agent selling illegal drugs to lure Americans into spying for him, then the FBI could not receive telephonic evidence that he was involved in drug dealing.

The purpose of the wall wasn’t to protect foreign agents from domestic criminal charges; rather, it was to prevent American law enforcements from violating privacy by spying upon Americans without search warrants.

The Patriot Act was enacted by Congress in the weeks following 9/11. In addition to permitting one federal agent to authorize another to search private records — contrary to the Fourth Amendment — it also removed the wall between law enforcement and spying.

Of course, the language in the statute sounds benign and requires that the purpose of the spying must be national security and the discovered criminal evidence — if any — must be accidental or inadvertent. Last week, the FBI admitted to using the NSA and CIA to spy upon Americans. It does not have probable cause or even articulable suspicion that any criminal activity is occurring.

Articulable suspicion — the rational ability to point a finger at a criminal actor, and a lower standard than probable cause — is the linchpin for the commencement of all criminal investigations. Without it, we’re back to fishing trips.

The FBI’s admission that it uses NSA and CIA to spy on it was made in the form a 906-page FBI Rulebook, which was written under the Trump administration. It was distributed to federal agents in 2021 and made public to Congress last week.

The NSA and the CIA cannot be happy, it is obvious. The CIA charter forbids employees from domestic surveillance and law enforcement. However, we know that the CIA exists physically and virtually in every U.S. statehouse.

When it wants to spy, the NSA must go to FISA Court. This, too, is a charade. Every keystroke that is triggered on any mobile device or desktop computer in the U.S. is captured by the NSA 24/7 without warrants.

It is shocking to see that the FBI reduced to writing its contempt of the Constitution its employees have sworn up to uphold. Congress and President Joe Biden have not done anything about it.

The FBI is a department of Justice. The president is directly served by the NSA and CIA. All domestic spying can be stopped with pen and paper. He can rebuild the wall between spying, law enforcement. He can prohibit all executive branches from engaging in secret FISA Court. Biden can accomplish all of this if he does not fear the disclosure of the dirt that his own spy have on him.

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