Mass spying without suspicion and the hole in our Constitution

Judge Andrew P. Napolitano,

The issue of federal government surveillance of Americans has largely occupied Washington politicians and the media since President Donald Trump first accused the administration of his predecessor of spying on him while he and his colleagues worked at Trump Tower in New York City during the presidential election campaign and during the presidential transition.

Trump’s allegations were initially dismissed as a diversionary tactic to get the attention of the media and the interest of the public off allegations made against the Trump campaign that it conspired with agents of Russian intelligence to facilitate Russian interference with the presidential election. Even some very smart colleagues of mine dismissed Trump’s allegations, arguing that no one in Washington found them believable.

Then the director of the FBI, James Comey, and the director of the National Security Agency, America’s 60,000-person-strong domestic spying apparatus, Adm. Mike Rogers, testified under oath that they knew of no surveillance of candidate or President-elect Trump at Trump Tower.

When I heard these denials, I thought them to be odd at best and erroneous at worst because I was privy to credible chatter in the intelligence community that Trump’s allegations were correct, and I knew that the FBI had revealed it was examining the activities of the Trump campaign to look for Russian involvement and that such an examination would surely find the surveillance of Trump that the intelligence community was chatting about.

Then the chairman of the House Intelligence Committee, Rep. Devin Nunes, R-Calif., revealed that whistleblowers from the intelligence community had approached him with evidence supportive of Trump’s claims. He viewed this evidence and revealed that it showed surveillance of candidate and President-elect Trump, but it had nothing to do with Russia. Then Nunes’ Democratic counterpart on the same committee, Rep. Adam Schiff, D-Calif., who had complained loud and long that he had not seen the documents, viewed the same documents and afterward remained essentially mute.

Before all this happened, unnamed sources released a portion of transcripts of telephone conversations between the Russian ambassador to the United States and retired Lt. Gen. Mike Flynn, then Trump’s national security adviser in the White House. The conversations had taken place before Trump was inaugurated. Though only excerpts were revealed — excerpts intended to embarrass Flynn and taunt Trump — they arguably showed Flynn counseling the ambassador to expect different treatment of American sanctions on Russia from the Trump administration than they had received from the Obama administration. However, that was an expectation that any rational person would already have had. This revelation and its aftermath did prove embarrassing to Flynn and to Trump, and Flynn resigned.

How did anyone obtain transcripts of conversations involving Trump campaign or transition officials? Here is the back story.

The American public has permitted the most massive and thorough domestic surveillance apparatus in history to come about right under our collective and formerly freedom-loving nose. Beginning in 1978 and continuing up to the present, Congress has passed statutes that purport to confine domestic spying to foreign people communicating with anyone in America. Yet that confinement is a myth — a myth accepted even by the Congresses that have authorized and reauthorized it.

In theory, spying in America is done pursuant to the Foreign Intelligence Surveillance Act and subsequent statutes that provide for the intervention of judges who issue warrants. In practice, the warrants are general warrants. They are not based on suspicion. They do not identify the person whose communications are to be intercepted. They permit the NSA to search where it wishes — for example, in certain ZIP codes, area codes and service provider customer lists — and retain whatever it finds.

On top of this subterfuge is the below-the-radar-screen behavior of the NSA, which looks to a Reagan-era executive order to justify its capture in real time of every telephone conversation and every computer keystroke of everyone in the U.S. since 2005.

That massive amount of raw data is stored digitally in NSA facilities in Maryland and in Utah, and it is available for examination by select people. One of the people who have access to it is the president’s national security adviser. My colleagues at Fox News and at other media outlets have reported that Susan Rice, President Obama’s final national security adviser, sought and obtained transcripts of conversations of people at Trump Tower, ostensibly looking for a connection to Russia. Rice has admitted this.

Yet in that process, someone revealed the name of an American whose communications had been examined — known as unmasking. Unmasking is lawful in private only if necessary to comprehend a national security-related and lawfully intercepted communication. It is never lawful to leak publicly.

If unmasking is done for any non-national security purpose — such as politics, curiosity, embarrassment or revenge — or if it is from a surveilled conversation that was not national security-related, the unmasking is criminal. The use of intelligence data for political purposes is a felony. Its unlawful use is espionage because the identity of Americans surveilled is top-secret — the highest level of classification. Someone unmasked Lt. Gen. Flynn and most likely President Trump.

The wrongful exposure of top-secret material is the same crime committed by Hillary Clinton when she placed top-secret emails in non-secure venues. Yet if the allegations against Rice are true, her behavior was arguably worse. Clinton acted with gross negligence. Rice’s alleged behavior may have been intentional.

Michael Doran, who worked in national security in the George W. Bush White House, has argued that “somebody blew a hole in the wall between national security secrets and partisan politics.”

Yet this is far worse than a hole in the wall; it is a hole in the Constitution. Mass spying without suspicion and the select revelation of its fruits for political purposes is far worse than anything the government of King George III did to the colonists, and they fought a war to secede from his country.

How much longer will Americans permit the government to pull the wool over our eyes? Whatever happened to the constitutional right to privacy? Does the Constitution — which requires a showing of some evidence of wrongdoing to a judge before the government may intercept any communications — still mean what it says?