OPINION:
Among the lesser-known holes in the Constitution cut by the Patriot Act of 2001 was the destruction of the “wall” between federal law enforcement and federal spies. The wall was erected in the Foreign Intelligence Surveillance Act of 1978, which statutorily limited all federal domestic spying to that which was authorized by the Foreign Intelligence Surveillance Court.
The wall was intended to prevent law enforcement from accessing and using data gathered by domestic spying agencies.
Government spying is rampant in the U.S., and the feds regularly engage in it as part of law enforcement’s well-known antipathy to the Fourth Amendment. Last week, the FBI confirmed as much when it raided the home of Scott Ritter, a former U.N. weapons inspector. Mr. Ritter is a courageous and gifted Marine Corps veteran. He is also an articulate anti-war warrior.
Here is the backstory.
After President Richard Nixon resigned the presidency, Congress investigated his use of the FBI and CIA as domestic spying agencies. Some of the spying was on political dissenters, and some on political opponents. None of it was lawful.
What is lawful spying? The modern Supreme Court has made it clear that domestic spying is a “search” and the acquisition of data from a search is a “seizure” under the Fourth Amendment. That amendment requires a warrant issued by a judge based on probable cause of crime presented under oath to the judge for a search or seizure to be lawful. The amendment also requires that all search warrants specifically describe the place to be searched and the person or thing to be seized.
The language in the Fourth Amendment is the most precise in the Constitution because of American colonists’ disgust with British general warrants. A general warrant was issued to British agents by a secret court in London. General warrants did not require probable cause, only “governmental needs.” That, of course, was no standard whatsoever, as whatever the government wants it will claim that it needs.
General warrants authorized government agents to search wherever they wished and to seize whatever they found — stated differently, to engage in fishing expeditions.
FISA required that all domestic spying be authorized by the new and secret Foreign Intelligence Surveillance Court. Congress then unconstitutionally lowered the probable cause of crime standard for the court to probable cause of speaking to a foreign agent, and it permitted the court to issue general warrants.
Yet the FISA compromise that was engineered to attract congressional votes was the wall. The wall prohibited whatever data was acquired from surveillance conducted according to a FISA warrant to be shared with law enforcement.
So, if a janitor in the Russian Embassy was really an intelligence agent who was distributing illegal drugs as lures to get Americans to spy for him, any telephonic evidence of his drug selling could not be given to the FBI.
The purpose of the wall was not to protect foreign agents from domestic criminal prosecutions; it was to prevent American law enforcement from violating personal privacy by spying on Americans without search warrants.
Fast-forward to the weeks after 9/11 when, with no serious debate, Congress enacted the Patriot Act. It removed the wall between law enforcement and spying. By 2001, the FISA court had already lowered the standard for issuing a search warrant from the probable cause of speaking to a foreign agent to the probable cause of speaking to a foreign person. This, too, was unlawful and unconstitutional.
The language removing the wall sounds benign, as it requires that the purpose of the spying must be national security and the discovered criminal evidence — if any — must be accidental or inadvertent. In January 2023, the FBI admitted that it intentionally uses the CIA and the National Security Agency to spy on Americans on whom it has neither probable cause of crime nor even articulable suspicion of criminal behavior.
Articulable suspicion is the linchpin of commencing all criminal investigations. Without requiring suspicion, we are back to fishing expeditions.
The FBI’s admission that it uses the CIA and the NSA to spy for it came in the form of a 906-page FBI rulebook written during the Trump administration, disseminated to federal agents in 2021 and made known to Congress last year.
Last week, when FBI agents searched Mr. Ritter’s home in upstate New York, in addition to trucks, guns, a SWAT team and a bomb squad, they arrived with printed copies of two years’ worth of Mr. Ritter’s emails and texts that they obtained without a search warrant. To do this, they either hacked into Mr. Ritter’s electronic devices — a felony — or they relied on their cousins, the CIA and the NSA, to do so, also a felony.
The CIA charter, however, prohibits its employees from engaging in domestic surveillance and law enforcement. Nevertheless, we know the CIA is physically or virtually present in all 50 U.S. statehouses. The NSA is required to go to the FISA court when it wants to spy. We know that this is a charade, as the NSA regularly captures every keystroke triggered on every mobile device and desktop computer in the U.S., 24/7, without warrants.
The search warrant for Mr. Ritter’s home specified only electronic devices, of which he had three. Yet the 40 FBI agents there stole a truckload of materials from him, including his notes from his U.N. inspector years in the 2000s, a draft of a book he is writing and some of his wife’s property.
The invasion of Scott Ritter’s home was a perversion of the Fourth Amendment, a criminal theft of his private property and an effort to chill his free speech. But it was not surprising. This is what federal law enforcement has become today. The people we have hired to protect the Constitution are destroying it.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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