With FISA and the NSA in the news, learn why abusing them isn’t arcane procedural stuff but is, instead, critically important to American freedom.

Did the Obama administration illegally use its power in multiple ways to access NSA intercepts so that it could gain intelligence on – and kneecap – Trump’s administration? If so, then this is a scandal that dwarfs everything that happened during Watergate and highlights the real danger to our republic flowing from government abuse of NSA’s capabilities.

With luck, we’ll very soon read the House Intelligence Committee’s four-page document summarizing its investigation into alleged FISA abuses and the Trump-Russia collusion.  If we’re very lucky, that document will have attached to it the declassified intelligence and court documents supporting its contentions.  And just today, Rep. Trey Gowdy teased the contents of the House memo:

If you think your viewers want to know whether or not the dossier was used in [FISA] court proceedings, whether or not it was vetted before it was used, whether or not it’s ever been vetted — if you are interested in who paid for the dossier, if you are interested in Christopher Steele’s relationship with Hillary Clinton and the Democratic National Committee, then, yes, you will want the memo to come out.”

“Do you want to know that the Democratic National Committee paid for material that was never vetted, that was included in a court proceeding?” . . . .  “Do you want to know whether or not the primary source in these court proceedings had a bias against one candidate? Do you want to know whether or not he said he’d do anything to keep that candidate from becoming president?”

Much of what Rep. Gowdy is referring to centers around NSA intercepts and the Foreign Intelligence Surveillance Act, otherwise known as FISA. To understand just how the NSA, FISA, and the 4th Amendment fit together in the drama playing out before us, read on.

Fourth Amendment

To fully appreciate the meaning and purpose behind the 4^th Amendment to the Constitution, one needs to travel back to the American colonies, around 1760. That was when the colonists, who considered themselves staunch British subjects, began to understand that the British government in London was not treating them well at all.

One of the government’s unfair acts was to impose such high taxes on certain commodities that the taxes threatened the entire colonial economy (and made life far more expensive for the British on the mainland). Some American colonists began smuggling those commodities, just as Brits themselves were extensively doing in England of the time.

The government in London responded in 1760 with “writs of assistance.” There will not be a test, but it will help you interpret contemporary events if you understand “writs of assistance.” These writs were open-ended search warrants authorizing a government agent to search private property — anywhere, at anytime — for contraband without ever having to show to a Court that the agent reasonably believed the search would actually yield contraband.  Such a “general warrant” was both a threat to British citizens and a profit source for those British agents who used the writs to line their own pockets in what was an incredibly abusive system.

In the 20th century, Director of Stalin’s Secret Police, Lavrentiy Pavlovich Beria, famously said, “Show me the man and I’ll find the crime.” He could easily have said the same about the mid-18th century British Crown’s systematic abuse of general warrants such as writs of assistance.

This abuse came to a head in London (and was, at the time, a cause célèbre throughout the colonies) when King George III authorized a general warrant against a political opponent, John Wilkes, in the hope that searching Wilkes’ home would produce evidence of something — anything — the Crown could use to pin a crime on Wilkes. ” British agents, having rooted through Wilkes’ private writings, found nothing worse than a truly bawdy poem. They seized the poem and proceeded to create a crime by surreptitiously publishing it as if Wilkes had done so himself – that being a necessary element of the crime of blasphemy in the U.K. of 1760 – and then charging Wilkes with the crime. Wilkes was then expelled from Parliament and fled to France.

When it came to drafting the Bill of Rights, the Founding Fathers remembered well the abuses to which the British government put general warrants and writs of assistance. For over two centuries, the 4th Amendment has protected American citizens from officials seeking to settle scores or obtain power by wrongfully imposing themselves into and onto private property despite having no having probable cause to believe any crime has been committed.

Not only are these searches illegal, but if our society is to remain free, government can never be allowed the power to conduct such unfounded searches. Nor can government be allowed to leverage these illegal searches into weaponizing FISA for political intelligence or political hits. In this regard, I am specifically referring to the successful political hit the FBI conducted on Michael Flynn using FISA intercepts, an outrage of its own that I will address at the end of this post. [Read more…]