Blindly Trust No One
/Congress is currently grappling with whether to extend section 702 of the Foreign Intelligence Surveillance Act that was passed by Congress in 2008 after the 9-11 attacks that killed nearly three-thousand Americans and brought down the World Trade Center Towers in New Your City. The reaction that followed by government officials and politicians was predictable. This section allows government searches without a warrant on foreign nationals. The question is what to do if American citizens are involved with those foreign nationals?
The country post 9-11 was in a state of fear of another attack. Fear based policy leads to overreach. Government authority expands at the expense of individual liberties. Citizens in a state of fear of another attack blindly trust what officials and politicians tell us. They convince us when we are in a state of panic that we must do everything we can so that an event like this can never happen again. If course, that is impossible to promise. History is full of examples where this statement was made after a man-made disaster, yet other large scale incidents occurred again.
Whether than wait for the dust to settle, have a rational discussion about how to move forward and then choose upon the best course of action from a few policy options, fear-based policy is developed. As citizens we are ripe for trusting and believing that what we are being told is in our best interest. It is not the wisest way to develop policy, and we are willing to give up civil liberties in pursuit of safety.
Section 702 of the FISA bill allows government broad authority to collect data including text messages, phone calls and emails on foreign nationals abroad without a warrant. The problem is that many times the communications involved a US citizen in communication with foreign nationals with the American not suspected of terror or criminal involvement. In that case, a warrant has to be obtained. The claim by US intelligence agencies is that the proverbial national security interests would be threatened and that getting a warrant would delay preventing an attack. We always hear that sky is falling rhetoric when it comes to government warrantless surveillance. Even though I am a former career law enforcement officer with intelligence experience holding a master's degree in security studies, I still have a keen interest in protecting civil liberties and can navigate through the typical government alarmist rhetoric that killing section 702 would weaken the government’s ability in stopping urgent threats but they can demonstrate no examples. I have obtained numerous search warrants. It is not difficult nor tedious to obtain one. With today’s technology a search warrant can be applied for and obtained electronically in no time flat. Even in off court business hours there is a prosecutor and judge on call on a 24-7 basis.
Members from both sides in Congress are opposed to extending Section 702 because there are not enough safeguards to protecting privacy for Americans. To be blunt, they do not trust the FBI nor our Intelligence agencies. Nor should they. According to PEW Research, trust today in government and its institutions is at an all time low. Every time people trust political officials to do the right thing, the long-term result is a loss of liberty. There is plenty of evidence for not allowing government to oversee themselves. Between 2020 and 2021 the FBI unlawfully used section 702 almost 300,000 times in searches of January 6 suspects, racial justice protestors, and other Americans without first obtaining search warrants. In testimony before Congress, Inspector testimony discovered that the FBI and other intelligence agencies routinely gather up and search digital communications of Americans without first obtaining a warrant. The agencies promise reform and attribute the illegal activity to a misunderstanding by agents, yet the abuses continued. The Founders were very mistrustful of government spying on the citizenry when they set up the Fourth Amendment warrant requirement based on probable cause with a few narrowly defined exceptions before snooping into the privacy of Americans. What we have today is a long way away from what the Founders envisioned.
There appears to be no accountability when illegal searches are discovered. It is always a retraining issue. Every federal agent and every local law enforcement officer understands the warrant requirement under the U.S. Constitution Fourth Amendment. If they do not, they are unfit to serve. At the very least, these are civil rights violations. At worst these are criminal violations. No federal agent is ever charged with violating people’s civil rights. The final bill on section 702 that passed the House includes language stipulating that federal law enforcement must now seek attorney approval before targeting reviews of Americans’ information and that each query must have a written justification submitted to the Office of the Director of National Intelligence and that misuse of the surveillance tool could result in criminal penalties of up to 5 years in prison. There are several problems with this added provision. Can the agent's testimony be trusted? This is a non adversarial process and highly secret. Recall that FBI gave false testimony in obtaining information to obtain warrants to spy on the Trump campaign. Nobody was investigated or referred for criminal charges for false swearing. And let us be honest. No agent will be criminally charged under this added provision. The agency will claim that there was no criminal intent or that it was an honest mistake. The language says could result in criminal penalties. The word could should be replaced with will result in criminal penalties for violating the warrant requirement.
Government officials and even many citizens believe this surveillance overreach is necessary to keep us safe. In the words of Benjamin Franklin when it comes to choosing between security and privacy, he said those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
Sheriff David A. Clarke Jr. is former Sheriff of Milwaukee Co, Wisconsin, President of Americas Sheriff LLC, President of Rise Up Wisconsin INC, Board member of the Crime Research Center, author of the book Cop Under Fire: Moving Beyond Hashtags of Race Crime and Politics for a Better America. To learn more visit www.americassheriff.com
