Fear Not

Politicians and the media in the nation’s Capital are good at two things and two things only and that is creating hysteria for something to talk about and spending our money. Congress, and I mean both Democrats and Republicans love to give the American people the illusion that they are busy getting important things done. As they get ready to go off for summer vacation, they were debating whether to extend Section 702 of the Foreign Intelligence Surveillance Act. This is a relic of the 9-11 era.

Section 702 of the FISA enacted in 2008 allows government agencies to collect communications data including phone logs, emails, text messages on foreign targets meaning non-U.S. citizens without a warrant. That seems like a reasonable tool to give our intelligence agencies responsible for combating terror.

Let’s take a look back as to how we arrived at FISA and Section 702. After 9-11 Congress ordered a review into how these eleven or so terror suspects were able to pull off such a large-scale attack without being detected by any of our intelligence services including the CIA, FBI, Defense Intelligence Agency and State Department. In their haste to do something, Congress was willing to do anything to prevent another attack. That anything included expanding government authority. Expanding government authority that is not clearly defined leaves interpretation in the hands of bureaucrats. That does not end well as we have seen in the past.

As someone who has policy options experience in dealing with intelligence issues having studied at the U.S. Naval Academy post graduate school’s Center for Homeland Defense and Security, I understand the intelligence process. It is important that the goal in policy options analysis is not to do just anything but to do something meaningful and to make sure we are working on the right thing.

The 9-11 attacks had absolutely nothing to do with the Fourth Amendment restriction on warrantless searches. The attacks had everything to do with our intel agencies not sharing information and being asleep at the switch. The system was blinking red. The 9-11 terror suspects were operating in plain sight. They were already on terror watch lists. They were on the no-fly list yet were freely going in and out of the country on commercial airlines and were never stopped. This was known to the intel agencies, yet they did nothing to stop them. There was intel available that Osama bin Laden and Al Qaeda were planning a large-scale attack here. Several of the terrorists had applied at U.S. flight training schools to learn how to fly a large airliner. They only wanted to know how to take off and were not interested in learning how to land a plane. That should have been a red flag. An FBI agent became aware of this and notified her bosses and wanted to interrupt things but she was told to stand down. These are just a few examples of dropping the ball, things that could have disrupted the 9-11 attacks.

But instead of the intel agencies accepting blame, they went to watering down the Fourth Amendment.

So now the alarmist rhetoric is in full bloom with Section 702 expiring unless Congress extends it. House Speaker Mike Johnson said, “I pray that we do not have a serious calamity on our shores over the next few weeks.” A former head of the FBI’s New York Field office said that if Section 702 had existed in 2001 that the 9-11 attacks could have been prevented. I would counter that nonsense by calling to mind all of the signals I just mentioned that were missed by these same intel agencies.

Section 702 does not have to be eliminated but it needs some adjustments to protect American citizens privacy. Section 702 only allows warrantless searches of foreign nationals' communications data. The problem is that American citizens data, citizens not suspected of terror involvement is being scooped up as well using Section 702 and searched without a warrant. FISA was never intended to be used against American citizens, but it is being used against them. The Constitution clearly prohibits warrantless searches of American citizens except in narrowly defined circumstances approved by the U.S. Supreme Court. Examples are vehicle searches by law enforcement or searches incident to an arrest where a search warrant is not needed.

Government officials claiming that the Fourth Amendment is an obstacle to national security are uttering pure nonsense. This tactic is used to scare people. None of the examples given by these fear mongers proves that if the Constitution is not violated right this moment an attack will occur. I have applied for numerous search warrants. It is not a burden to obtain one, especially in the electronic age. It takes no more than a few hours at best. No terror attacks cited by the fear mongers were hours away from happening.

Here is what defenders of the Fourth Amendment are asking for in extending Section 702. Get a warrant when dealing with U.S. citizens. They are asking for language to be included that makes it clear that a warrant has to sought before searching communications data on US citizens in these investigations. Abuses of Section 702 have occurred. Not wanting to get a search warrant when an American citizen is involved is just plain lazy or an admission that probable cause does not exist.

We can give our intel agencies tools to protect national security while still protecting American citizen’s privacy. Congress not being able to get this done is typical political behavior. Get this done.

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