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Updating the Fourth Amendment Analysis of U.S. Person Communication Incidentally Collected Under FISA Section 702

Peter G. Machtiger[*]

[Full text of this Article in PDF is available at this link]

Introduction

Following the terrorist attacks of September 11, 2001, the United States government rallied around its national security apparatus to improve its ability to detect and prevent future acts of terrorism. As part of this mission, the Intelligence Community was asked to “identify and target plotters in some of the most remote parts of the world and to anticipate the actions of networks that, by their very nature, cannot be easily penetrated with spies or informants.”[1] Improvements in surveillance technology meant that there were “fewer and fewer technical constraints” on what the government could do.[2] Members of all three branches of government were therefore left to wonder what the government should do.[3] These government actors, in thinking about the proper scope of government surveillance, have assessed many competing factors from information overload and mission creep to trust-in-government and law enforcement legitimacy.[4]

Surveillance involving U.S. persons is the most legally complicated type of surveillance because it requires a difficult balancing of competing factors. Under the Fourth Amendment, U.S. persons have rights against unreasonable government “surveillance.” However, the government also has an important countervailing interest in conducting surveillance, which may implicate U.S. persons, to protect national security. Accommodating expectations of privacy and security involves identifying an equilibrium between “the interest in liberty from government restraint or interference and the interest in public safety, in recognition of the grave threat that terrorism poses to the nation’s security.”[5] The bounds of Executive Branch surveillance in the realm of national security are rarely litigated in open court. Due to Article III case or controversy requirements,[6] federal courts rarely review foreign intelligence surveillance programs. Such review occurs rarely outside of the Foreign Intelligence Surveillance Court (FISC),[7] which has various duties related to the oversight of intelligence surveillance programs, including the authorization of FISA surveillance orders and the review of proposed procedures for targeting non-U.S. persons reasonably believed to be located abroad.[8] The FISC is composed of federal judges appointed by the Chief Justice of the Supreme Court to address foreign intelligence oversight.[9] Occasionally, however, cases have led judges to rule on legal challenges to government surveillance programs that implicate the civil liberties of U.S. persons; such cases provide perspectives that may “challeng[e] that of the national security experts.”[10] One of the most prominent examples of a government surveillance program that has been reviewed in Article III courts is “Section 702” of the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA).[11] Most recently, a Second Circuit panel in United States v. Hasbajrami,[12] held that the introduction by prosecutors of evidence derived from Section 702 created a “case or controversy” sufficient for review of the program in federal court.

The Hasbajrami court—like all previous courts to consider the issue—upheld the constitutionality, as applied, of the warrantless use of incidentally collected U.S. person communications under Section 702.[13] In doing so, the court made only one citation[14] to Carpenter v. United States,[15] which has been called “one of this generation’s most important Fourth Amendment opinions.”[16] Hasbajrami’s connection to Carpenter may not be immediately obvious, for Carpenter established a warrant requirement for law enforcement access to a certain amount of a person’s cell site location information (CSLI).[17] However, Carpenter provides a window into how the Supreme Court thinks about the constitutional implications of bulk data collection. Ignoring Carpenter in deciding Hasbajrami might make sense under a narrow reading of Carpenter, which focuses solely on CSLI, but dicta from Carpenter about applying the Fourth Amendment in the era of modern technology may support a more robust constitutional analysis of incidental collection under Section 702.[18] While Carpenter’s dicta are non-binding, they may provide insight into how the Supreme Court might address other forms of bulk data collection, like the collection in Hasbajrami, in the future.

Both Executive Branch and congressional personnel have flagged the lack of a warrant requirement for incidentally collected U.S. person communication as a cause for concern. President Obama’s Review Group on Intelligence and Communications Technologies recommended that “it should take either a law enforcement or FISA judicial order to query the database. . . . [T]here should at least be a judge involved before there is access to the contents of U.S. person communications.”[19] One draft bill in Congress would have “[r]estrict[ed] law enforcement from using information obtained or derived from warrantless surveillance except when investigating the most serious crimes, like murder.”[20] The Hasbajrami case provides the opportunity for the judiciary to address the issues as a matter of constitutionality.

This piece will proceed in two parts. Part I will describe the factual and legal background of United States v. Hasbajrami and explain some modern developments in Fourth Amendment doctrine, primarily from Carpenter, that are relevant to the issues in Hasbajrami. Part II will look closely at the reasoning of the Hasbajrami court and provide an alternative Fourth Amendment analysis of incidentally collected U.S. person communications under FISA Section 702.

 

I.  Context for This Case-Study: United States v. Hasbajrami

 

            A.  Factual Background

 

In 2011, Agron Hasbajrami, a legal permanent resident located in the United States,[21] communicated via e-mail with an unidentified foreign citizen located abroad “who Hasbajrami believed was associated with a terrorist organization.”[22] Over the course of those communications, Hasbajrami indicated interest in traveling to Pakistan to join the terrorist organization.[23] After intercepting these communications, the Federal Bureau of Investigation’s Joint Terrorism Task Force began investigating Hasbajrami and arrested him on September 6, 2011, as he attempted to board a flight to Turkey out of New York.[24] He was charged with “attempting to provide material support to a terrorist organization, alleging that he intended to travel to the Federally Administered Tribal Area of Pakistan, where he expected to join a terrorist organization, receive training, and ultimately fight ‘against U.S. forces and others in Afghanistan and Pakistan.’”[25]

Hasbajrami pleaded guilty to “attempting to provide material support to terrorists in violation of 18 U.S.C. § 2339A” and was sentenced to 180 months in prison.[26] While serving his sentence, Hasbajrami was informed by the government that some previously disclosed evidence obtained from traditional FISA surveillance was actually “derived from other collection pursuant to [Section 702].”[27] Hasbajrami withdrew his plea and moved to suppress “the fruits of all warrantless FAA surveillance,” including:

 

all evidence and information derived as a result of [Section 702] surveillance; all evidence and information obtained or derived from Title I and Title III FISA collection . . . [that was] itself also derived from other collection pursuant to [Section 702] . . . [and] [a]ny other evidence and information that the Government could not have obtained in this case through an independent source.[28]

 

The district court denied the motion to suppress, and Hasbajrami appealed that decision to the Second Circuit, leading to the opinion discussed here.

 

B.  Legal Background

      1. FISA Section 702

 

The provision at issue here, Section 702, was not part of the original FISA in 1978. The original FISA was passed to address several concerns, including “judicial confusion over the existence, nature and scope of a foreign intelligence exception to the Fourth Amendment’s warrant requirement,” “Congressional concern over perceived Executive Branch abuses of such an exception,” and the “need to provide the Executive Branch with an appropriate means to investigate and counter foreign intelligence threats.”[29]

Section 702 was enacted as part of the FISA Amendments Act of 2008 to provide a new framework for the government to conduct foreign intelligence surveillance of “the communications of non-U.S. persons located abroad.”[30] Section 702 requires the government to submit targeting, minimizing, and querying procedures that will govern the program for approval by the FISC.[31] It does not require the government to specify with particularity the “nature and location” of any surveilled facilities or to “demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power.”[32] Surveillance conducted under Section 702 is jointly authorized by the Attorney General and the Director of National Intelligence and must target non-U.S. persons outside the United States to acquire foreign intelligence information.[33]

The Hasbajrami court looked at Section 702 surveillance as a five-step process: (1) targeting; (2) collection; (3) minimization; (4) retention and storage; and (5) dissemination and querying.[34] Overall, this process of acquiring a communication under Section 702 must be “conducted in a manner consistent with the fourth amendment to the Constitution of the United States.”[35] The surveillance generally involves compelling internet service providers to secretly provide the government with the desired communications.[36]

In 2018, an estimated 164,770 targets were subject to Section 702 surveillance.[37] In previous years, the National Security Agency (NSA) estimated that it annually acquired over 250 million Internet communications pursuant to the program.[38] It is seemingly a useful program for the Intelligence Community, according to career intelligence professionals. Former Acting Director of the CIA Michael Morrell called Section 702 “one of our nation’s most effective programs to protect our national security,”[39] and former FBI Director James Comey called it “essential to the safety of this country.”[40]

Buy-in from the Intelligence Community, like the above statements, is a threshold condition for an intelligence program, but buy-in from the citizens it is meant to protect matters too. Buy-in from regular citizens may even matter more, as public trust in government is essential to our democratic system. For an intelligence program that former intelligence leaders consider effective and essential to be maintained with legitimacy and supported by Americans, it must be scrutinized carefully when it implicates the constitutional interests of U.S. persons.

 

      1. Incidental Collection of U.S. Person Communications

 

“Incidental collection” occurs when a “target”––a non-U.S. person located abroad–– communicates with a U.S. person and that entire communication is acquired by an intelligence agency conducting surveillance.[41] The information communicated by the U.S. person is said to be “incidentally collected.”[42] As long as there are U.S. persons communicating with non-U.S. persons located abroad, the possibility of incidental collection is inevitable.[43] The inevitability is why it is important to look at how the government handles incidentally collected communications.[44]

According to investigative reporting, in one cache of communications intercepted by the NSA, only about 10% of identified accounts belonged to intended surveillance targets while about half of the incidentally collected accounts belonged to U.S. persons.[45] This high volume of incidental collection occurs because of the way internet communications are collected; for example, if a surveillance target enters an online chat room, the identities of all of the other participants and all of the chat room communications are collected, regardless of the subject matter.[46] After communications are intercepted, NSA analysts review the information to determine whether each communication involves a target and is “reasonably believed to contain foreign intelligence information or evidence of a crime.”[47] Communications meeting that criteria are retained and potentially disseminated to other agencies, while communications that do not meet that criteria are destroyed unless they otherwise meet an enumerated exception.[48]

Retained communications are maintained in databases that may later be searched to display either the content of the communications or noncontent metadata. In 2018, there were an estimated 9,637 search terms “concerning a known U.S. person used to retrieve the unminimized contents of communications obtained under Section 702,” and an estimated 14,374 queries “of unminimized noncontent information” obtained under Section 702 concerning known U.S. persons.[49] A U.S. person’s identity may be disseminated “unminimized” ––i.e., not redacted–– if it is “necessary to understand the foreign intelligence information or assess its importance,” meaning that the U.S. person may be involved in a crime or their identity might shed light on a potential threat to “the safety of any person or organization.”[50]

As part of the FISA Amendments Reauthorization Act of 2017, which occurred after the surveillance and arrest of Hasbajrami, Congress statutorily mandated that the FBI obtain a court order when seeking to access the contents of communications “retrieved pursuant to a query made using a United States person query term that was not designed to find and extract foreign intelligence information.”[51] This provided a statutory limitation to querying in cases unrelated to national security, but the statute does not affect the constitutional analysis in this case.

 

      1. Use of Incidentally Collected Communications in Criminal Prosecutions

 

Generally, there is no requirement to give notice to persons whose communications are incidentally collected pursuant to Section 702. Thus, courts rarely have the opportunity to provide meaningful oversight. However, the government is required by statute to give notice to the “aggrieved person” if it “intends to enter into evidence or otherwise use or disclose . . . any information obtained or derived from an electronic surveillance” in a court proceeding.[52]

Despite this requirement, no criminal defendant received notice of Section 702 surveillance until 2013, when New York Times reporting revealed that the Justice Department had “misrepresented” its notice policy to the Supreme Court in Clapper v. Amnesty International.[53] Following this revelation, the Justice Department gave notice of Section 702 surveillance in five criminal cases between October 2013 and April 2014, including in Hasbajrami.[54] The Justice Department has not provided any notices since making those five disclosures. This lack of notice might mean a shift in how the Justice Department interprets “derived from”; for example, as one commentator has theorized, the Justice Department might consider evidence to be “derived from” Section 702 surveillance “only when it has expressly relied on Section 702 information in a later court filing.”[55] This would allow the Justice Department to evade the notice requirement even if the expressly cited evidence that is used would not have been obtained without the original Section 702 surveillance.[56]

If the Justice Department has indeed altered its interpretation of the statute to evade the notice requirement, Hasbajrami may be the last case in which a federal court reviews the Fourth Amendment implications of the incidental collection of U.S. person communications under Section 702.

 

C.  Modern Developments in Fourth Amendment Doctrine

 

Fourth Amendment doctrine has continually developed to try to address the implications of modern technology unfathomable to the Framers of the Constitution. The most recent example of this is the Carpenter case, which has been called “one of this generation’s most important Fourth Amendment opinions” because it thoroughly analyzes how the Framers’ intentions map on to the modern technological capabilities for massive data collection.[57]

The procedure at issue in Carpenter, by which the government could obtain historical location data collected by telecommunications companies, was authorized under the Stored Communications Act. The Supreme Court found that it was “not a permissible mechanism for accessing historical cell-site records” and held that the government was required to obtain a warrant for that information.[58] The Court made this determination by considering the following factors: the “deeply revealing nature of CSLI”; its “depth, breadth, and comprehensive reach”; and the “inescapable and automatic nature of its collection.”[59] Carpenter could be read narrowly to apply only to the CSLI that was at issue in the case. However, the case could also plausibly be read to hold that “even if congressionally authorized, any process short of obtaining a warrant—and thus any level of suspicion less than probable cause—would be unconstitutional.”[60]

It is worth examining the incidental collection of U.S. person communications under Section 702 through the lens of Carpenter, the Supreme Court’s most recent guidance on the constitutional implications of modern data collection. The issues in each case are somewhat analogous: Section 702 surveillance is authorized by statute, like the CSLI acquisition in Carpenter, and allows vast quantities of historical data to be retained in databases, which is an aspect of CSLI acquisition that concerned the Carpenter court.[61] When the Ninth Circuit examined incidental collection under Section 702, the court called its “vast, not de minimis” volume the “most troubling aspect” of the incidental collection and noted that “[t]his quantity distinguishes § 702 collection from Title III and traditional FISA interceptions.”[62]

 

* * *

 

If the Justice Department has altered its interpretation of the notice requirement for evidence derived from Section 702, then the Second Circuit cited Carpenter only once in what is potentially the last opportunity for a Fourth Amendment analysis of incidental collection under Section 702.[63] The following is an alternative analysis that the court could have undertaken had it fully embraced the underlying principles revealed by Carpenter’s dicta.

 

II.  Alternative Analysis of

United States v. Hasbajrami

 

The court reviewed the Hasbajrami case as an “as-applied challenge to the constitutionality of warrantless collection and review of his communications under Section 702.”[64] The court determined that “the incidental collection in this case, and the government’s use of the information thus collected, was lawful,” but did not conclude as to the reasonableness of any querying involved in the case and remanded to the district court for further fact-finding on that issue.[65]

In finding the use of the incidentally collected information lawful, the Second Circuit explicitly adopted a similar approach to the Ninth Circuit—first, deciding that “a warrant is not required for such collection” and, second, deciding that “the incidental collection of Hasbajrami’s e-mails was reasonable.”[66] The court’s analysis on both of these issues seems to follow the pre-Carpenter reasoning of other courts, which reached those conclusions based on a combination of only partially applicable case law concerning the extraterritorial application of the Fourth Amendment and the “incidental overhear” doctrine. This seems less convincing in a post-Carpenter world, where the Supreme Court has indicated that judges should consider how modern technology meshes with the intentions of the founders, especially as to the warrant requirement. The Hasbajrami court’s strongest analysis occurs in its section separately considering querying, although it is unclear why the court treats querying so much differently than collection. These issues will now be addressed in turn.

 

A.  Warrant Requirement

 

The warrant requirement in criminal law derives from the Fourth Amendment’s warrant clause which states “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[67] In the ordinary criminal context, the Supreme Court has found the Fourth Amendment’s warrant clause to require three elements: (1) “warrants must be issued by neutral, disinterested magistrates”; (2) “those seeking the warrant must demonstrate to the magistrate their probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense”; (3) “warrants must particularly describe the things to be seized, as well as the place to be searched.”[68] The Supreme Court has found warrantless searches “per se unreasonable under the Fourth Amendment” unless they fall within “a few specifically established and well-delineated exceptions.”[69] However, the Supreme Court has been reluctant to explicitly extend these same requirements to cases involving national security.[70]

The Hasbajrami court determined that a warrant was not required in this instance for two reasons. First, the court noted that “the Fourth Amendment does not apply extraterritorially to the surveillance of persons abroad, including United States citizens.”[71] Next, the court relied on the “incidental overhear” doctrine, according to which an additional warrant is not required when, “in the course of executing a warrant or engaging in other lawful search activities, [officers] come upon evidence of other criminal activity outside the scope of the warrant or the rationale justifying the search, or the participation of individuals not the subject of the initial warrant or search.”[72] Neither argument is particularly convincing in the context of Section 702 incidental collection because both doctrines arose out of specific sets of facts not analogous to the facts in this case.

 

      1. Extraterritoriality

Supreme Court precedent makes clear that the Fourth Amendment warrant requirement does not apply extraterritorially to searches of non-U.S. persons. However, that rule is only pertinent to the Fourth Amendment analysis of incidental collection insofar as it legitimizes the surveillance of non-U.S. person intelligence targets located outside the United States.[73]

In addition to the aforementioned traditional extraterritoriality principle from United States v. Verdugo-Urquidez, the Hasbajrami court cited Second Circuit precedent that telephone surveillance conducted extraterritorially, even of U.S. persons, does not require a warrant.[74] As the court acknowledged, Section 702 surveillance, by its nature, only occurs within the territory of the United States.[75] The court addressed this point by citing Katz for the proposition that the location of the surveillance is not important, and thus “a foreign national resident abroad, does not acquire . . . [a Fourth Amendment-protected privacy interest] by reason of the physical location of the intercepting device.”[76]

Assuming this logic to be sound, this section on extraterritoriality only establishes that the Section 702 surveillance of foreign persons located outside the United States is lawful, which is relevant only because it sets up the next section on the incidental overhear doctrine. This section, on its own, does nothing to address the Fourth Amendment-protected privacy interest of Hasbajrami, who at the time of surveillance was a U.S. person located in the United States and whose communications were collected in the United States. The fact that the surveillance target did not have Fourth Amendment rights does not mean that Hasbajrami’s Fourth Amendment rights correspondingly disappear.[77]

 

      1. Incidental Overhear Doctrine

 

The court applied the incidental overhear doctrine to its finding that the collection of the target’s communications falls outside the warrant requirement and holds that the warrantless incidental collection and use of Hasbajrami’s communications are similarly lawful. But, the incidental overhear doctrine does not seem exactly appropriate in the context of Section 702 collection because: (1) the source cases involve Title III wiretaps with warrants and (2) traditional wiretaps are fundamentally different than Section 702 collection in terms of the factors identified in Carpenter.

The Hasbajrami court primarily cited United States v. Donovan,[78] as establishing the incidental overhear doctrine, which, as the court understands it, provides that:

 

law enforcement agents do not need to obtain a separate warrant to collect conversations of persons as to whom probable cause did not previously exist with individuals whose oral or wire communications are being collected through a lawful wiretap or bug, where those conversations on their face contain evidence of criminal activity.[79]

 

The idea underpinning the incidental overhear doctrine started prior to Donovan in United States v. Kahn.[80] In both Kahn and Donovan, defendants opposed the use of their communications collected pursuant to Title III wiretap orders because they had not been named in the orders.[81] The holding of Kahn, echoed in Donovan, was that “(1) Title III does not require that a wiretap order name every person whose conversations will be the target of interception, and (2) the Fourth Amendment’s particularity requirement is satisfied by specifying the facilities to be surveilled and the conversations to be seized.”[82] In other words, the warrant obtained by the government identifying the phone lines to be surveilled and subject matter to be discussed was sufficient under the Fourth Amendment to collect the defendants’ communications, even though they were not specifically named.[83] These cases cannot be directly applied to Section 702 collection because they involved warrants and “[a] section 702 collection order is obviously not a warrant.”[84] The Hasbajrami court would rebut this point by reading the incidental overhear cases only to require that the initial surveillance be “lawful” whether by “a warrant, a FISC order, or some other exception to the warrant requirement.”[85] It seems like a large leap to read Fourth Amendment case law involving warrants to apply equally to a case about warrantless surveillance given the sanctity of the warrant requirement.[86] However, it is the same leap the Ninth Circuit made in Mohamud. To support the proposition, both courts only cite the district court opinion from Hasbajrami.[87] Deriving an exception to the warrant requirement this way also seems to be a far cry from the “jealously and carefully drawn” exceptions described by the Supreme Court.[88] The Supreme Court has emphasized the Fourth Amendment importance of a “neutral and detached magistrate.”[89] The surveillance in both Donovan and Kahn involved such a magistrate as part of the Title III wiretap process, while the surveillance in Hasbajrami did not. Thus, the link between the incidental overhear doctrine and the Section 702 collection in Hasbajrami is not as strong as the Hasbajrami court suggests.

When examined through the lens of the Carpenter factors — the “deeply revealing nature” of the information; its “depth, breadth, and comprehensive reach”; and the “inescapable and automatic nature of its collection”[90] –– Section 702 collection also seems fundamentally different from Title III wiretaps. The Hasbajrami court seemed to consider this only in its analysis of querying,[91] perhaps thinking of Section 702 collection as contemporaneous in the same way as wiretaps. However, Section 702 collection appears to have much more in common with Section 702 querying than it does with Title III wiretaps in terms of its comprehensive reach and the inescapable nature of its collection. In 2018, a total of 2,937 wiretaps were reported between federal and state judges.[92] Compare that to the 164,770 Section 702 targets in the same year,[93] encompassing hundreds of millions of internet communications.[94] This amount of collection would have been unfathomable even at the time of Donovan and Kahn, let alone in the eighteenth century. As the Supreme Court reiterated in Carpenter: “As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”[95] In conducting this analysis for CSLI, Chief Justice Roberts noted:

 

Prior to the digital age, law enforcement might have pursued a suspect for a brief stretch, but doing so for any extended period of time was difficult and costly and therefore rarely undertaken . . . . For that reason, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.[96]

 

A similar pre-digital analogy for incidental collection under Section 702 might include having spies surveilling foreign targets overseas at an impossible scale, who are able to open every single piece of mail received by their targets, make copies, and send those copies back to the United States, potentially to prosecute U.S. persons. In this way, Carpenter is all about asking “whether a prior limit on government power has been lifted.”[97] When comparing Section 702 collection to Title III wiretaps, the answer to that question is undoubtedly “yes,” which inspires further doubt as to the appropriateness of applying cases like Donovan to the situation in Hasbajrami.

* * *

            In sum, Hasbajrami, a U.S. person whose communications were intercepted within the United States without a warrant, could be criminally prosecuted based on those communications because of the combination of two doctrines that fail to amount to an enumerated exception to the warrant requirement. It is worth noting that the Second Circuit staked its entire reasoning on the combination of extraterritoriality and the incidental overhear doctrine, rather than on a foreign intelligence or national security exception to the warrant requirement. Other courts looking at incidental collection under Section 702 have also avoided relying on a foreign intelligence or national security exception.[98] Whether or not such an exception would be more convincing than the reasoning chosen here,[99] the common denominator in Fourth Amendment cases is a reasonableness analysis.

 

B.  Reasonableness

 

Having determined that the warrant requirement does not apply, the Hasbajrami court conducted a reasonableness analysis, examining “the totality of the circumstances to balance . . . the degree to which [the government’s action] intrudes upon an individual’s privacy and . . . the degree to which it is needed for the promotion of legitimate government interests.”[100] However, the court did not reckon with the fact that the Supreme Court considers warrantless searches of U.S. persons within the U.S. per se unreasonable under the Fourth Amendment, except for a few clearly delineated exceptions.[101]

The court began by acknowledging that Hasbajrami, as a U.S. person, has a reasonable expectation of privacy in the content of his e-mails, even when communicating with someone overseas.[102] This is in line with Carpenter, in which “all nine justices signed onto opinions that declare that the police need a warrant to read the content of email messages.”[103]

Notably, the court did not invoke the third-party doctrine to find some kind of diminished expectation of privacy, a mistake that other federal courts in other circuits looking at incidental collection under Section 702 have made.[104] Those courts that invoked the third-party doctrine have simultaneously considered e-mails to have full Fourth Amendment protections because they are like letters and no Fourth Amendment protections because of the third-party doctrine. The considerations average out to some diminished expectation of privacy in what Professor Orin Kerr calls “the Fourth Amendment as quantum physics.”[105] By avoiding the third-party doctrine trap and simply acknowledging that e-mails are like letters, the reasoning of the Hasbajrami court maintains greater legitimacy.

The court then described the government interest in preventing “[t]he recruitment of persons inside the United States or the placement of agents here to carry out terrorist attacks” as one “of particular importance.”[106] Due to their presence on U.S. soil, the U.S. person might even pose a greater immediate threat than the foreign intelligence target with whom they are communicating. However, it is also worth remembering that Section 702 surveillance does not require any showing that the target poses some threat to the United States, just that the target is a non-U.S. person located outside the United States and that “foreign intelligence information” is reasonably expected to be acquired.[107] With such a broad targeting standard, it is equally likely that the surveillance will acquire the communications of U.S. journalists, lawyers, and ordinary citizens who are in contact with non-U.S. persons overseas. These groups are certainly entitled to Fourth Amendment protections.[108]

The court found, under the totality of the circumstances, that “the incidental collection of communications between targets foreigners abroad and United States persons . . . is thus reasonable” and that dissemination of those communications to law enforcement is reasonable when the communications raise “reasonable grounds to believe that a crime is being committed or planned in the United States.”[109] Other courts have come to the same conclusion.[110]

Preventing crime is certainly a legitimate government interest, but one that the Framers anticipated when they enacted the Fourth Amendment and included a warrant requirement. Even in the context of domestic security threats in which all of the suspected dangerous individuals are located on U.S. soil, the Supreme Court has emphasized that “[t]he warrant clause of the Fourth Amendment is not dead language . . . It is not an inconvenience to be somehow weighed against the claims of police efficiency.”[111] It is not obvious that this calculus should change simply because one of the suspected co-conspirators is located overseas and can thus be surveilled outside of the Fourth Amendment framework.

Perhaps a more reasonable process would involve requiring a warrant for law enforcement to access the contents of incidentally collected U.S. person communications under Section 702. This could function the same way at both the collection and querying stages: if electronic communications between a U.S. person and a non-U.S. person are intercepted by intelligence professionals and contain evidence of a potential crime, the intelligence professionals could disseminate only the identity of the U.S. person to law enforcement. Law enforcement officials would then need to make a probable cause showing to a judge and obtain a warrant to access the contents of the communications. A judicial determination that this is a constitutional requirement—rather than relying on a statutory fix—would follow in the footsteps of Carpenter and provide greater respect for the Fourth Amendment interests of U.S. persons, without unduly burdening the government’s law enforcement interest.

 

C.  Querying

 

The Hasbajrami court considered the querying of previously collected Section 702 analysis separately, which is something other courts have not done.[112] In doing so, the court expressed some concern about the breadth, comprehensive reach, and automatic nature of Section 702, noting that “the program begins to look more like a dragnet, and a query more like a general warrant.”[113] The court remanded to the district court for more fact-finding on the issue of querying, but seemed to seriously consider that querying should receive greater Fourth Amendment protection than it currently does.[114]

The court is right to suspect that querying needs greater Fourth Amendment protection, but it should also apply this logic to the collection stage of Section 702. The communications being queried are the same communications being reviewed at the collection stage and the broad, comprehensive, and automatic nature of the acquisition should be considered throughout.[115] In short, the court seemed to identify a meaningful gap between the nature of querying and collection where it should not.

 

* * *

 

While the court’s reasoning related to the warrant requirement is unconvincing, there are seeds for hope in the section of the opinion about querying. If the full Second Circuit eventually takes this case en banc, other members of the court might pick up the concerns in the section on querying and decide to apply the logic of that section to the entire collection process, similar to the analysis laid out in this piece. Requiring a warrant before law enforcement can access the contents of incidentally collected U.S. person communications for the purposes of criminal investigation would provide the most reasonable framework under the Fourth Amendment.

 

Conclusion

 

Hasbajrami provides an opportunity for the judiciary to undertake a constitutional review of incidental collection under Section 702, potentially for the last time.[116] By re-hashing arguments made by other courts writing about incidental collection before Carpenter, the Second Circuit fails to reckon with the privacy-protective guidance from the Supreme Court in Carpenter. In doing so, the court not only allows the government to access U.S. person communications without a warrant in this instance, but also signals to the Executive Branch that the judiciary will not stand in the way of mass surveillance programs as long as they are conducted in the name of national security. “Courts regularly deal with the most difficult issues of our society”[117]—this is undoubtedly a difficult issue, but a thorough and convincing analysis is necessary to maintain the legitimacy of both the program and the courts. As Hasbajrami continues to make its way through the federal courts, judges have an opportunity to engage in an analysis that protects the Fourth Amendment rights of U.S. persons in a world of increasing data collection and surveillance. A judicial decision protecting U.S. persons from warrantless surveillance would send a strong signal to an Executive Branch seeking to push the boundaries of intelligence surveillance of U.S. persons.[118]

Recommended Citation
Peter G. Machtiger, Updating the Fourth Amendment Analysis of U.S. Person Communications Incidentally Collected Under FISA Section 702, Harv. Nat’l Sec. J. Online (Feb. 7, 2021), https://harvardnsj.org/wp-content/uploads/sites/13/2021/02/Machtiger_Fourth-Amendment-Under-FISA-702.pdf


[*] A.B., Harvard College, 2014; J.D. Candidate, New York University School of Law, Class of 2021.

[1] Remarks on United States Signals Intelligence and Electronic Surveillance Programs, 2014 Daily Comp. Pres. Doc. 2 (Jan. 17, 2014), https://www.govinfo.gov/content/pkg/DCPD-201400030/pdf/DCPD-201400030.pdf [ https://perma.cc/QWH4-P8P5].

[2] Id.

[3] See id.

[4] See Stephen J. Schulhofer, Rethinking the Patriot Act: Keeping America Safe and Free 27 (2005).

[5] Richard A. Posner, Not A Suicide Pact: The Constitution in a Time of National Emergency 31 (2006).

[6] See U.S. Const. art. III, § 2, cl. 1.

[7] See 50 U.S.C. § 1803.

[8] See David Kris & J. Douglas Wilson, Nat’l Security Investigations & Prosecutions § 5.2 (3d ed. 2019).

[9] See id. at § 5.1.

[10] Posner, supra note 5, at 5.

[11] Section 702 of the FISA Amendments Act, Pub. L. No. 110-261, 122 Stat. 2436 (codified at 50 U.S.C. § 1881a); see United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016); United States v. Mohammad, 339 F. Supp. 3d 724 (N.D. Ohio 2018); United States v. Muhtorov, 187 F. Supp. 3d 1240 (D. Colo. 2015).

[12] 945 F.3d 641 (2d Cir. 2019).

[13] See id. at 661.

[14] See id. at 672.

[15] 138 S. Ct. 2206 (2018).

[16] Alan Z. Rozenshtein, Fourth Amendment Reasonableness After Carpenter, 128 Yale L.J. Forum 943, 943 (Apr. 1, 2019), (first citing Orin S. Kerr, Implementing Carpenter, in The Digital Fourth Amendment (forthcoming) (manuscript at 1), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3301257 [https://perma.cc/FTZ4-ZANU]; then citing Susan Freiwald & Stephen Wm. Smith, The Carpenter Chronicle: A Near-Perfect Surveillance, 132 Harv. L. Rev. 205, 206 (2018); and then citing Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. 357 (2019)).

[17] Carpenter, 138 S. Ct. at 2222.

[18] See id. at 2214.

[19] Peter Swire & Richard Clarke, Reform Section 702 to Maintain Fourth Amendment Principles, Lawfare (Oct. 19, 2017, 2:02 PM), https://www.lawfareblog.com/reform-section-702-maintain-fourth-amendment-principles [https://perma.cc/WF4Q-EYMK]; see also Geoffrey Stone & Michael Morrell, The One Change We Need to Surveillance Law, Wash. Post. (Oct. 9, 2017), https://www.washingtonpost.com/opinions/the-one-change-we-need-to-surveillance-law/2017/10/09/53a40df0-a9ea-11e7-850e-2bdd1236be5d_story.html [https://perma.cc/R6SN-4C6K] (arguing “[t]he government should no longer be permitted to search the data collected under Section 702 without a warrant when seeking information about U.S. citizens and legal permanent residents.”).

[20] Charlie Savage, Fight Brews Over Push to Shield Americans in Warrantless Surveillance, N.Y. Times (May 6, 2017), https://www.nytimes.com/2017/05/06/us/politics/congress-surveillance-nsa-privacy.html [https://perma.cc/75U8-Q9NM].

[21] See Hasbajrami, 945 F.3d at 658.

[22] Id. at 647.

[23] See id.

[24] See id. at 645.

[25] Id.

[26] Id.

[27] Id. at 648.

[28] Id. at 648–49.

[29] United States v. Rosen, 447 F. Supp. 2d 538, 542–43 (E.D. Va. 2006).

[30] United States v. Mohamud, 843 F.3d at 437.

[31] See id.

[32] Id. (citing Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1144 (2013)).

[33] See 50 U.S.C. § 1881a(a).

[34] See Hasbajrami, 945 F.3d at  651–58.

[35] 50 U.S.C. § 1881a(b)(6).

[36] See Hasbajrami, 945 F.3d at 651 (citing 50 U.S.C. § 1881a(i)(1)(A)).

[37] See Off. of the Dir. of Nat’l Intel., Statistical Transparency Report Regarding the Use of National Security Authorities 13 (2019), https://www.dni.gov/files/CLPT/documents/2019_ASTR_for_CY2018.pdf [https://perma.cc/8HPD-TJJ4].

[38] See [Case Title Redacted], 2011 WL 10945618, at *9 (FISA Ct. Oct. 3, 2011).

[39] Stone & Morrell, supra note 19.

[40] Savage, supra note 20.

[41] Hasbajrami, 945 F.3d at 654.

[42] Id.

[43] See Robert Chesney, Unmasking: A Primer on the Issues, Rules, and Possible Reforms, Lawfare (Apr. 6, 2017, 1:58 PM), https://www.lawfareblog.com/unmasking-primer-issues-rules-and-possible-reforms [https://perma.cc/XDZ6-PTWR].

[44] See id.

[45] See Barton Gellman, Julie Tate & Ashkan Soltani, In NSA-Intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are, Wash. Post. (July 5, 2014), https://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those-not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4-8572-4b1b969b6322_story.html [https://perma.cc/3HSA-J9MX].

[46] See id.

[47] Hasbajrami, 945 F.3d at 656  (citing Minimization Procedures Used by the National Security Agency in Connection with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of 1978, As Amended § 3(b)(4) (2011), https://www.dni.gov/files/documents/Minimization%20Procedures%20used%20by%20NSA%20in%20Connection%20with%20FISA%20SECT%20702.pdf. [https://perma.cc/J3H3-47JJ].

[48] See id.

[49] Off. of the Dir. of Nat’l Intel., supra note 37, at 14–15.

[50] Chesney, supra note 43 (quoting Nat’l Sec. Agency et al., United States Signal Intelligence Directive SP0018: (U) Legal Compliance and U.S. Persons Minimization Procedures para. 7.2.c (Jan. 15, 2011), https://www.dni.gov/files/documents/1118/CLEANEDFinal%20USSID%20SP0018.pdf [https://perma.cc/ZLY4-VMHP].

[51] Hasbajrami, 945 F.3d at 658 (citing 50 U.S.C. § 1881a(f)(2)(A)).

[52] 50 U.S.C. § 1806(c).

[53] Patrick C. Toomey, Why Aren’t Criminal Defendants Getting Notice of Section 702 Surveillance—Again?, Just Sec. (Dec. 11, 2015), https://www.justsecurity.org/28256/arent-criminal-defendants-notice-section-702-surveillance-again / [https://perma.cc/QY32-5T6A].

[54] See id.

[55] Id.

[56] See id. This interpretation of the notice requirement may be unlawful according to the reasoning of United States v. Moalin, 973 F.3d 977 (9th Cir. 2020), a recent case about FISA’s now-expired telephony metadata program. According to the Ninth Circuit in Moalin, the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use information obtained or derived from surveillance conducted under FISA or the FISA Amendments Act. 973 F.3d at 1000–01; see also Orin Kerr, Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement for Surveillance Practices?, Lawfare (Sept. 9, 2020, 7:01 AM), https://www.lawfareblog.com/did-ninth-circuit-create-new-fourth-amendment-notice-requirement-surveillance-practices [https://perma.cc/LQ2R-2QHY].

[57] Rozenshtein, supra note 16, at 943.

[58] Carpenter, 138 S. Ct. at 2221.

[59] Id. at 2223.

[60] Rozenshtein, supra note 16, at 944.

[61] See Carpenter, 138 S. Ct. at 2218 (“[T]he Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention policies of the wireless carriers . . . .”).

[62] Mohamud, 843 F.3d at 440.

[63] See Hasbajrami, 945 F.3d at 672 (2d Cir. 2019).

[64] Id. at 660.

[65] Id. at 661.

[66] Id. at 662.

[67] U.S. Const. amend. IV.

[68] In re Sealed Case, 310 F.3d 717, 738 (FISA Ct. Rev. 2002) (citing Dalia v. United States, 441 U.S. 238, 255 (1979)).

[69] Katz v. United States, 389 U.S. 347, 357 (1967); see also Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) (“[I]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”).

[70] Katz, 389 U.S. at 358 n.23 (“Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.”); see also Carpenter, 138 S. Ct. at 2220 (“[O]ur opinion does not consider other collection techniques involving foreign affairs or national security.”).

[71] Hasbajrami, 945 F.3d at 662.

[72] Id.

[73] See id. (citing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)).

[74] Id. at 663 (citing In re Terrorist Bombings, 552 F.3d 157, 171 (2d Cir. 2008)).

[75] See id. at 664.

[76] Id. at 665. Accepting this proposition that the location of the surveillance is not important, it is not totally clear why then the U.S. citizen in In re Terrorist Bombings lost the protection of the warrant requirement because he was overseas. See 552 F.3d 157.

[77] See Mohamud, 843 F.3d at 441 (assuming that the defendant “had a Fourth Amendment right in the incidentally collected communications” (citing Orin S. Kerr, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 285, 313–14 (2015) (“Communicating with a person who lacks Fourth Amendment rights should not waive the rights of the person who has those rights. The Fourth Amendment should continue to fully protect the U.S. person who communicates with those lacking Fourth Amendment rights.”); also citing Privacy & Civil Liberties Oversight Bd. (“PCLOB”), Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act 94 (July 2, 2014) (“The government has acknowledged that the Fourth Amendment rights of U.S. persons are affected when their communications are acquired under Section 702 incidentally or otherwise[.]”))).

[78] 429 U.S. 413 (1977).

[79] Hasbajrami, 945 F.3d at 663.

[80] United States v. Kahn, 415 U.S. 143 (1974).

[81] See Elizabeth Goitein, Another Bite Out of Katz: Foreign Intelligence Surveillance and the “Incidental Overhear” Doctrine, 55 Am. Crim. L. Rev. 105, 115 (2018), https://www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2018/04/55-1-Another-Bite-out-of-Katz-Foreign-Intelligence-Surveillance-and-the-%E2%80%9CIncidental-Overhear%E2%80%9D-Doctrine.pdf [https://perma.cc/88P7-CGZU].

[82] Id. at 122.

[83] Id.

[84] Orin Kerr, The Surprisingly Weak Reasoning of Mohamud, Lawfare (Dec. 23, 2016, 7:30 AM), https://www.lawfareblog.com/surprisingly-weak-reasoning-mohamud [https://perma.cc/DN5G-EPNQ].

[85] Hasbajrami, 945 F.3d at 665.

[86] See Katz, 389 U.S. at 357 (calling searches without warrants “per se unreasonable” outside “a few specifically established and well-delineated exceptions”).

[87] See Mohamud, 843 F.3d at 440-41 (“[W]hen surveillance is lawful in the first place—whether it is the domestic surveillance of U.S. persons pursuant to a warrant, or the warrantless surveillance of non-U.S. persons who are abroad—the incidental interception of non-targeted U.S. persons’ communications with the targeted persons is also lawful.”) (citing United States v. Hasbajrami, No. 11-CR-623 (JG), 2016 WL 1029500, at *9, (E.D.N.Y. Mar. 8, 2016)).

[88] Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971).

[89] Johnson v. United States, 333 U.S. 10, 14 (1948).

[90] Carpenter, 138 S. Ct. at 2223.

[91] See United States v. Hasbajrami, 945 F.3d at 672.

[92] See U.S. Cts., Wiretap Report 2018, https://www.uscourts.gov/statistics-reports/wiretap-report-2018 [https://perma.cc/23W6-Q86A] (last updated Dec. 31, 2018).

[93] See Off. of the Dir. of Nat’l Intel., supra note 37, at 13.

[94] See [Case Title Redacted], 2011 WL 10945618, at *9.

[95] Carpenter, 138 S. Ct. at 2214 (citing Kyllo v. United States, 533 U.S. 27, 34 (2001)).

[96] Id. at 2217.

[97] Orin S. Kerr, Implementing Carpenter, in The Digital Fourth Amendment (forthcoming) (manuscript at 8), https://papers.ssrn.com/abstract_id=3301257 [https://perma.cc/ARK7-JYSW].

[98] See Mohamud, 843 F.3d at 441 n.25 (“Because the incidental collection excepts this search from the Fourth Amendment’s warrant requirement, we need not address any ‘foreign intelligence exception.’”); see also Muhtorov, 187 F. Supp. 3d at 1253–54) (“I find the special need/foreign intelligence exception argument somewhat academic and limiting, because the standard ultimately is one of reasonableness.”).

[99] See Privacy & Civil Liberties Oversight Bd., supra note 77, at 90 n.411 (distinguishing Section 702 from caselaw recognizing a foreign intelligence exception, but ultimately not taking a position on the existence or scope of such an exception).

[100] Hasbajrami, 945 F.3d at 666.

[101] See Carpenter, 138 S. Ct. at 2221 (“[I]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”).

[102] See Hasbajrami, 945 F.3d at 666.

[103] Paul Ohm, The Many Revolutions of Carpenter, 32 Harv. J.L. & Tech. 357, 398 (Spring 2019) (citing Carpenter, 138 S. Ct. at 2222; id. at 2230 (Kennedy, J., dissenting); id. at 2269 (Gorsuch, J., dissenting)).

[104] See Mohamud, 843 F.3d at 442; Mohammad, 339 F. Supp. 3d at 752; Muhtorov, 187 F. Supp. 3d at 1255.

[105] Kerr, supra note 84.

[106] Hasbajrami, 945 F.3d at 666–67.

[107] 50 U.S.C. § 1881a(a).

[108] United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 314 (1972) (“Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.”).

[109] Hasbajrami, 945 F.3d at 667.

[110] See United States v. Mohamud, 843 F.3d 420, 443 (9th Cir. 2016); Mohammad, 339 F. Supp. 3d at 753.

[111] Keith, 407 U.S. at 315.

[112] See Muhtorov, 187 F. Supp. 3d at 1256; see also United States v. Mohamud, No. 3:10-cr-475-KI-1, 2014 WL 2866749, at *26 (D. Or. June 24, 2014).

[113] Hasbajrami, 945 F.3d at 670–71.

[114] See id. at 672.

[115] See id. at 669–73 (comparing querying to collection and citing the Carpenter factors).

[116] See Toomey, supra note 53.

[117] U.S. Dist. Court (Keith), 407 U.S. at 320.

[118] See Steve Vladeck & Benjamin Wittes, DHS Authorizes Domestic Surveillance to Protect Statues and Monuments, Lawfare (July 20, 2020), https://www.lawfareblog.com/dhs-authorizes-domestic-surveillance-protect-statues-and-monuments [https://perma.cc/AYH3-USPT].

 

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Tulsi Gabbard labels Adam Schiff, John Brennan as ‘domestic enemies’ of the US

Former Rep. Tulsi Gabbard issued a dire warning to the American people on Tuesday, expressing concern that “domestic enemies” of the United States, in the national security community and Big Tech industry, are plotting to create a “police state” in America.

Gabbard, who served as the U.S. representative for Hawaii’s 2nd Congressional District from 2013 to 2021, posted a video to social media in which she spoke out against efforts to expand the federal government’s national security powers after the Jan. 6 riot at the U.S. Capitol. In the video, she called out former CIA Director John Brennan and Rep. Adam Schiff (D-Calif.), two leading proponents of expanding national security powers, labeling them “domestic enemies” of the country.

“The mob who stormed the Capitol on Jan. 6 to try to stop Congress from carrying out its constitutional responsibilities were behaving like domestic enemies of our country,” Gabbard said. “But let’s be clear, the John Brennans, Adam Schiffs and the oligarchs in Big Tech who are trying to undermine our constitutionally protected rights and turn our country into a police state with KGB-style surveillance are also domestic enemies — and much more powerful, and therefore dangerous, than the mob that stormed the Capitol.”

The video cuts to a clip from MSNBC of Brennan saying that members of the Biden administration “are now moving in laser-like fashion to try to uncover as much as they can about what looks very similar to insurgency movements that we see overseas.” Brennan was speaking of individuals and groups like those that formed the mob that laid siege to the Capitol.

The events of Jan. 6 have been compared in the media to the Sept. 11, 2001, terrorist attacks, a comparison some have used to call for a “Domestic War on Terror,” demanding that the U.S. employ strategies here at home akin to those used against ISIS and al-Qaeda abroad. Rep. Schiff in 2019 introduced legislation that would create a federal domestic terrorism criminal statute. A similar bill sponsored by Sen. Dick Durbin (D-Ill.) would establish new offices in the Department of Homeland Security, the Department of Justice, and the FBI to investigate domestic terrorism in the U.S.

Civil liberties advocates like Gabbard have spoken out against a war on terror here at home. A group of progressive representatives, led by Rep. Rashida Tlaib (D-Mich.), last week called on congressional leaders to reject efforts to pass Durbin’s Domestic Terrorism Prevention Act and oppose new legislation that would expand the national security state.

Gabbard is calling on President Joe Biden and the Congress to defend American civil liberties.

“President Biden, I call upon you & all of Congress from both parties to denounce efforts by Brennan & others to take away our civil liberties endowed to us by our Creator & guaranteed in our Constitution. If you don’t stand up to them now, then our country will be in great peril,” she said.

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Biden claims Trump appointees withholding information needed by his transition team: ‘We’ve encountered roadblocks’

President-elect Joe Biden on Monday accused officials appointed by President Donald Trump of withholding critical national security information from Biden’s transition team, claiming political appointees have put up “roadblocks” that might leave the U.S. more vulnerable during the transfer of power.

What are the details?

“Right now, as our nation is in a period of transition, we need to make sure that nothing is lost in the hand-off between administrations,” Biden said following a meeting with his national security advisers. “My team needs a clear picture of our force posture around the world and our operations to deter our enemies.”

He said, “We need full visibility into the budget planning underway at the Defense Department and other agencies in order to avoid any window of confusion or catch-up that our adversaries may try to exploit.”

Without naming names, Biden claimed, “We’ve encountered roadblocks from the political leadership at the Department of Defense and the Office of Management and Budget. Right now we just aren’t getting all of the information that we need from the outgoing administration in key national security areas. It’s nothing short, in my view, of irresponsibility.”

The Washington Post reported that Biden “was careful to distinguish between political appointees in the agencies and the career professionals who he said had cooperated fully.”

“They never stopped doing their job and continued to serve our country, day in and day out, to keep their fellow Americans safe,” Biden said of the career federal bureaucrats. “These agencies are filled with patriots who’ve earned our respect, and who should never be treated as political footballs.”


Biden Criticizes Trump Administration For ‘Roadblocks’ On National Security Issues | MSNBC

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Reuters noted that this is the second time this month that Biden’s team has complained that some Pentagon officials have refused to supply all of the information requested, but the Pentagon denied the claims.

The outlet reported:

The Pentagon pushed back. In a statement, acting Defense Secretary Christopher Miller said the Pentagon had conducted 164 interviews with over 400 officials and provided more than 5,000 pages of documents.

According to The Hill, during his news conference on Monday, “Biden did not expand further on what he described as ‘obstruction’ by outgoing Pentagon leadership, nor did he take questions following his brief remarks.”

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ready — COVID response doesn’t even rank in top 5 most important issues to voters. Economy stays No. 1: poll

If you consume only the mainstream media and follow only the social media posts Facebook and Twitter let you see, you probably think the sole issue impacting the 2020 presidential election is the government’s response to the coronavirus pandemic.

The networks, CNN, MSNBC, the New York Times, the Washington Post, and nearly every other liberal-leaning outlet want Americans to believe that the only things that matter this election are that President Donald Trump refuses to wear a mask, Vice President Mike Pence failed in his leadership of the White House Coronavirus Task Force (not to mention his reported opposition to having plexiglass at the vice presidential debate Wednesday night), and the White House is a COVID cesspool.

But it turns out the issues American voters consider most important in the election are the issues they’ve long considered the most important, a new Gallup poll revealed. And the No. 1 issue for voters hasn’t changed: “It’s the economy, stupid.”

That’s not to say the coronavirus response isn’t important to voters — it is — but it sure doesn’t rank where one might expect considering the level of coverage it has received.

What are the top 5 issues?

Of 16 issues Americans said were either “extremely important” or “very important” to their vote for president, the economy came in as the clear top issue at 89% (44% “extremely”; 45% “very). It was followed by terrorism and national security (83%), education (82%), health care (80%), and crime (79%).

Top 5 most important issues for 2020 election

No. 1: Economy — 89%
No. 2: Terrorism and National Security — 83%
No. 3: Education — 82%
No. 4: Health Care — 80%
No. 5: Crime — 79%

Where did the COVID response rank?

Don’t let the fact that the coronavirus response’s ranking is seemingly incongruous with the media coverage it has received fool you.

The fact that other topics were considered more important does not mean the coronavirus is not a concern for voters. In fact, more than three-quarters of Americans say it’s an issue important to their vote.

The response to the coronavirus came in sixth place on the most-important-issues ranking (77%), followed closely by race relations (76%).

Partisan breakdown

When broken down by political party, the results are not terribly surprising.

For Democrats, the five most important issues are health care (95%), coronavirus response (93%), relations (89%), climate change (88%), and the economy (85%)

Among Republicans, the top five issues are the economy (93%), terrorism and national security (93%), crime (85%), education (79%), and gun policy (76%).

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MSNBC contributor says ‘bipartsian commission’ needed to vet presidential candidates, stop another Trump from winning

An MSNBC contributor on Thursday called for a “bipartisan commission” to vet presidential candidates and prevent someone like President Donald Trump from winning the White House ever again.

NBC News National Security Contributor Frank Figliuzzi, the former assistant director of the FBI, said Trump’s tax returns as reported by the New York Times show he is “the most vulnerable president in our history” to compromise by foreign governments and is a national security threat. He believes the media and the 60 million people who voted for Trump in 2016 failed to properly vet him before he became president and the remedy is to have a bipartisan committee vet presidential candidates instead of the American people.

“He is the most vulnerable president in our history in terms of compromise and potential exposure to those who want to help him dig out of his financial pit in return for a price,” Figliuzzi said of Trump in a segment discussing the president’s tax returns.

Figliuzzi claimed the tax returns show how foreign governments could pressure Trump into making policy decisions that benefit their interests instead of the interests of the United States. He did not provide an example of a policy the president implemented that’s benefitted foreign governments and harmed the United States.
“There’s also another layer to this which is that when you’re this entangled with Russia and the former Soviet bloc you’re going to run smack into organized crime figures,” Figliuzzi added.

“So there’s too many gaps in the tax returns. There’s too many questions. Why is this president paying more to foreign nations in taxes than he is to the United States? How does he cover his debt? Who’s doing that for him? What’s the Deutsche Bank connection? Why are there so many golf courses losing so much money and why the continued purchase of those properties?”

But President Trump is not “paying more to foreign nations in taxes than he is to the United States.”

Berkeley professor Robert Reich recently made a similar claim, suggesting that the New York Times report on Trump’s taxes shows he only paid $750 in federal taxes in 2017 but nearly $300,000 in taxes to foreign governments that same year.

The New York Times report does not show that. The Times, in fact, reported that Trump paid the U.S. Treasury $1 million in 2016 and $4.2 million for income taxes that he might owe in 2017. This does not account for property taxes, payroll taxes, real estate taxes, or any other non-income taxes that Trump and his businesses paid to the United States in the years the New York Times reported.

On the basis of the unproven claim that Trump’s finances have made him vulnerable to foreign governments and a national security threat, Figluzzi suggested radical electoral reform is needed to make sure a candidate like Trump is never elected again.

“We’ve got to have a national discussion about how we vet a presidential candidate,” Figliuzzi said. “We screwed this up. Whether it’s the media not digging deeply enough, whether it’s a time to have a discussion about a bipartisan committee that demands tax returns, make that a requirement, or exposes financial pictures for candidates.”

“We got this wrong and this can’t happen again,” he concluded.

Watch:

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The Worst Is Yet to Come: Contact Tracing, Immunity Cards and Mass Testing

This article was originally published by  John W. Whitehead at The Rutherford Institute.

The things we were worried would happen are happening.”—Angus Johnston, professor at the City University of New York

No one is safe.

No one is immune.

No one gets spared the anguish, fear, and heartache of living under the shadow of an authoritarian police state.

That’s the message being broadcast 24/7 with every new piece of government propaganda, every new law that criminalizes otherwise lawful activity, every new policeman on the beat, every new surveillance camera casting a watchful eye, every sensationalist news story that titillates and distracts, every new prison or detention center built to house troublemakers and other undesirables, every new court ruling that gives government agents a green light to strip and steal and rape and ravage the citizenry, every school that opts to indoctrinate rather than educate, and every new justification for why Americans should comply with the government’s attempts to trample the Constitution underfoot.

Yes, COVID-19 has taken a significant toll on the nation emotionally, physically, and economically, but there are still greater dangers on the horizon.

As long as “we the people” continue to allow the government to trample our rights in the so-called name of national security, things will get worse, not better.

It’s already worse.

Now there’s talk of mass testing for COVID-19 antibodies, screening checkpoints, contact tracing, immunity passports to allow those who have recovered from the virus to move around more freely and snitch tip lines for reporting “rule breakers” to the authorities.

If you can’t read the writing on the wall, you need to pay better attention.

These may seem like small, necessary steps in the war against the COVID-19 virus, but they’re only necessary to the police state in its efforts to further undermine the Constitution, extend its control over the populace, and feed its insatiable appetite for ever-greater powers.

Nothing is ever as simple as the government claims it is.

Whatever dangerous practices you allow the government to carry out now—whether it’s in the name of national security or protecting America’s borders or making America healthy again—rest assured, these same practices can and will be used against you when the government decides to set its sights on you.

The war on drugs turned out to be a war on the American people, waged with SWAT teams and militarized police.

The war on terror turned out to be a war on the American people, waged with warrantless surveillance and indefinite detention.

The war on immigration turned out to be a war on the American people, waged with roving government agents demanding “papers, please.”

This war on COVID-19 will be yet another war on the American people, waged with all of the surveillance weaponry at the government’s disposal: thermal imaging cameras, drones, contact tracing, biometric databases, etc.

So you see, when you talk about empowering government agents to screen the populace in order to control and prevent the spread of this virus, what you’re really talking about is creating a society in which ID cards, roundups, checkpoints, and detention centers become routine weapons used by the government to control and suppress the populace, no matter the threat.

This is also how you pave the way for a national identification system of epic proportions.

Imagine it: a national classification system that not only categorizes you according to your health status but also allows the government to sort you in a hundred other ways: by gender, orientation, wealth, medical condition, religious beliefs, political viewpoint, legal status, etc.

Are you starting to get the bigger picture yet?

This is just another wolf in sheep’s clothing, a “show me your papers” scheme disguised as a means of fighting a virus.

Don’t fall for it.

The ramifications of such a “show me your papers” society in which government officials are empowered to stop individuals, demand they identify themselves, and subject them to patdowns, warrantless screenings, searches, and interrogations are beyond chilling.

By allowing government agents to establish a litmus test for individuals to be able to exit a state of lockdown and engage in commerce, movement and any other right that corresponds to life in a supposedly free society, it lays the groundwork for a society in which you are required to identify yourself at any time to any government worker who demands it for any reason.

Such tactics quickly lead one down a slippery slope that ends with government agents empowered to force anyone and everyone to prove they are in compliance with every statute and regulation on the books.

It used to be that unless police had a reasonable suspicion that a person was guilty of wrongdoing, they had no legal authority to stop the person and require identification. In other words, “we the people” had the right to come and go as we please without the fear of being questioned by police or forced to identify ourselves.

Unfortunately, in this age of COVID-19, the unrestricted right to move about freely is being pitted against the government’s power to lock down communities at a moment’s notice. And in this tug-of-war between individual freedoms and government power, “we the people” have been on the losing end of the deal.

Curiously enough, these COVID-19 restrictions dovetail conveniently with a national timeline for states to comply with the Real ID Act, which imposes federal standards on identity documents such as state drivers’ licenses, a prelude to this national identification system.

Talk about a perfect storm for bringing about a national ID card, the ultimate human tracking device.

Granted, in the absence of a national ID card, which would make the police state’s task of monitoring, tracking and singling out individual suspects far simpler, “we the people” are already tracked in a myriad of ways: through our state driver’s licenses, Social Security numbers, bank accounts, purchases, and electronic transactions; by way of our correspondence and communication devices—email, phone calls, and mobile phones; through chips implanted in our vehicles, identification documents, even our clothing.

Add to this the fact that businesses, schools, and other facilities are relying more and more on fingerprints and facial recognition to identify us. All the while, data companies such as Acxiom are capturing vast caches of personal information to help airports, retailers, police, and other government authorities instantly determine whether someone is the person he or she claims to be.

This informational glut—used to great advantage by both the government and corporate sectors—has converged into a mandate for “an internal passport,” a.k.a., a national ID card that would store information as basic as a person’s name, birth date, and place of birth, as well as private information, including a Social Security number, fingerprint, retinal scan, and personal, criminal and financial records.

A federalized, computerized, cross-referenced, databased system of identification policed by government agents would be the final nail in the coffin for privacy (not to mention a logistical security nightmare that would leave Americans even more vulnerable to every hacker in the cybersphere).

Americans have always resisted adopting a national ID card for good reason: it gives the government and its agents the ultimate power to target, track and terrorize the populace according to the government’s own nefarious purposes.

National ID card systems have been used before, by other oppressive governments, in the name of national security, invariably with horrifying results.

For instance, in Germany, the Nazis required all Jews to carry special stamped ID cards for travel within the country. A prelude to the yellow Star of David badges, these stamped cards were instrumental in identifying Jews for deportation to death camps in Poland.

Author Raul Hilberg summarizes the impact that such a system had on the Jews:

The whole identification system, with its personal documents, specially assigned names, and conspicuous tagging in public, was a powerful weapon in the hands of the police. First, the system was an auxiliary device that facilitated the enforcement of residence and movement restrictions. Second, it was an independent control measure in that it enabled the police to pick up any Jew, anywhere, anytime. Third, and perhaps most important, identification had a paralyzing effect on its victims.

In South Africa during apartheid, pass books were used to regulate the movement of black citizens and segregate the population. The Pass Laws Act of 1952 stipulated where, when, and for how long a black African could remain in certain areas. Any government employee could strike out entries, which canceled the permission to remain in an area. A passbook that did not have a valid entry resulted in the arrest and imprisonment of the bearer.

Identity cards played a crucial role in the genocide of the Tutsis in the central African country of Rwanda. The assault, carried out by extremist Hutu militia groups, lasted around 100 days and resulted in close to a million deaths. While the ID cards were not a precondition to the genocide, they were a facilitating factor. Once the genocide began, the production of an identity card with the designation “Tutsi” spelled a death sentence at any roadblock.

Identity cards have also helped oppressive regimes carry out eliminationist policies such as mass expulsion, forced relocation, and group denationalization. Through the use of identity cards, Ethiopian authorities were able to identify people with Eritrean affiliation during the mass expulsion of 1998. The Vietnamese government was able to locate ethnic Chinese more easily during their 1978-79 expulsion. The USSR used identity cards to force the relocation of ethnic Koreans (1937), Volga Germans (1941), Kamyks and Karachai (1943), Crimean Tartars, Meshkhetian Turks, Chechens, Ingush and Balkars (1944) and ethnic Greeks (1949). And ethnic Vietnamese were identified for group denationalization through identity cards in Cambodia in 1993, as were the Kurds in Syria in 1962.

And in the United States, post-9/11, more than 750 Muslim men were rounded up on the basis of their religion and ethnicity and detained for up to eight months. Their experiences echo those of 120,000 Japanese-Americans who were similarly detained 75 years ago following the attack on Pearl Harbor.

Despite a belated apology and monetary issuance by the U.S. government, the U.S. Supreme Court has yet to declare such a practice illegal. Moreover, laws such as the National Defense Authorization Act (NDAA) empower the government to arrest and detain indefinitely anyone they “suspect” of being an enemy of the state.

You see, you may be innocent of wrongdoing now, but when the standard for innocence is set by the government, no one is safe.

Everyone is a suspect.

And anyone can be a criminal when it’s the government determining what is a crime.

It’s no longer a matter of if, but when.

Remember, the police state does not discriminate.

At some point, it will not matter whether your skin is black or yellow or brown or white. It will not matter whether you’re an immigrant or a citizen. It will not matter whether you’re rich or poor. It won’t even matter whether you’re driving, flying or walking.

After all, government-issued bullets will kill you just as easily whether you’re a law-abiding citizen or a hardened criminal. Government jails will hold you just as easily whether you’ve obeyed every law or broken a dozen. And whether or not you’ve done anything wrong, government agents will treat you like a suspect simply because they have been trained to view and treat everyone like potential criminals.

Eventually, when the police state has turned that final screw and slammed that final door, all that will matter is whether some government agent—poorly trained, utterly ignorant and dismissive of the Constitution, way too hyped up on the power of their badges, and authorized to detain, search, interrogate, threaten and generally harass anyone they see fit—chooses to single you out for special treatment.

We’ve been having this same debate about the perils of government overreach for the past 50-plus years, and still, we don’t seem to learn, or if we learn, we learn too late.

All of the excessive, abusive tactics employed by the government today—warrantless surveillance, stop and frisk searches, SWAT team raids, roadside strip searches, asset forfeiture schemes, private prisons, indefinite detention, militarized police, etc.—started out as a seemingly well-meaning plan to address some problem in society that needed a little extra help.

Be careful what you wish for: you will get more than you bargained for, especially when the government’s involved.

In the case of a national identification system, it might start off as a means of tracking COVID-19 cases in order to “safely” re-open the nation, but it will end up as a means of controlling the American people.

For those tempted to justify these draconian measures for whatever reason—for the sake of their health, the economy, or national security—remember, you can’t have it both ways.

You can’t live in a constitutional republic if you allow the government to act like a police state.

You can’t claim to value freedom if you allow the government to operate like a dictatorship.

You can’t expect to have your rights respected if you allow the government to treat whomever it pleases with disrespect and an utter disregard for the rule of law.

As I make clear in my book Battlefield America: The War on the American People, if you’re inclined to advance this double standard because you believe you have done nothing wrong and have nothing to hide, beware: there’s always a boomerang effect.

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The Worst Is Yet to Come: Contact Tracing, Immunity Cards and Mass Testing

This article was originally published by  John W. Whitehead at The Rutherford Institute.

The things we were worried would happen are happening.”—Angus Johnston, professor at the City University of New York

No one is safe.

No one is immune.

No one gets spared the anguish, fear, and heartache of living under the shadow of an authoritarian police state.

That’s the message being broadcast 24/7 with every new piece of government propaganda, every new law that criminalizes otherwise lawful activity, every new policeman on the beat, every new surveillance camera casting a watchful eye, every sensationalist news story that titillates and distracts, every new prison or detention center built to house troublemakers and other undesirables, every new court ruling that gives government agents a green light to strip and steal and rape and ravage the citizenry, every school that opts to indoctrinate rather than educate, and every new justification for why Americans should comply with the government’s attempts to trample the Constitution underfoot.

Yes, COVID-19 has taken a significant toll on the nation emotionally, physically, and economically, but there are still greater dangers on the horizon.

As long as “we the people” continue to allow the government to trample our rights in the so-called name of national security, things will get worse, not better.

It’s already worse.

Now there’s talk of mass testing for COVID-19 antibodies, screening checkpoints, contact tracing, immunity passports to allow those who have recovered from the virus to move around more freely and snitch tip lines for reporting “rule breakers” to the authorities.

If you can’t read the writing on the wall, you need to pay better attention.

These may seem like small, necessary steps in the war against the COVID-19 virus, but they’re only necessary to the police state in its efforts to further undermine the Constitution, extend its control over the populace, and feed its insatiable appetite for ever-greater powers.

Nothing is ever as simple as the government claims it is.

Whatever dangerous practices you allow the government to carry out now—whether it’s in the name of national security or protecting America’s borders or making America healthy again—rest assured, these same practices can and will be used against you when the government decides to set its sights on you.

The war on drugs turned out to be a war on the American people, waged with SWAT teams and militarized police.

The war on terror turned out to be a war on the American people, waged with warrantless surveillance and indefinite detention.

The war on immigration turned out to be a war on the American people, waged with roving government agents demanding “papers, please.”

This war on COVID-19 will be yet another war on the American people, waged with all of the surveillance weaponry at the government’s disposal: thermal imaging cameras, drones, contact tracing, biometric databases, etc.

So you see, when you talk about empowering government agents to screen the populace in order to control and prevent the spread of this virus, what you’re really talking about is creating a society in which ID cards, roundups, checkpoints, and detention centers become routine weapons used by the government to control and suppress the populace, no matter the threat.

This is also how you pave the way for a national identification system of epic proportions.

Imagine it: a national classification system that not only categorizes you according to your health status but also allows the government to sort you in a hundred other ways: by gender, orientation, wealth, medical condition, religious beliefs, political viewpoint, legal status, etc.

Are you starting to get the bigger picture yet?

This is just another wolf in sheep’s clothing, a “show me your papers” scheme disguised as a means of fighting a virus.

Don’t fall for it.

The ramifications of such a “show me your papers” society in which government officials are empowered to stop individuals, demand they identify themselves, and subject them to patdowns, warrantless screenings, searches, and interrogations are beyond chilling.

By allowing government agents to establish a litmus test for individuals to be able to exit a state of lockdown and engage in commerce, movement and any other right that corresponds to life in a supposedly free society, it lays the groundwork for a society in which you are required to identify yourself at any time to any government worker who demands it for any reason.

Such tactics quickly lead one down a slippery slope that ends with government agents empowered to force anyone and everyone to prove they are in compliance with every statute and regulation on the books.

It used to be that unless police had a reasonable suspicion that a person was guilty of wrongdoing, they had no legal authority to stop the person and require identification. In other words, “we the people” had the right to come and go as we please without the fear of being questioned by police or forced to identify ourselves.

Unfortunately, in this age of COVID-19, the unrestricted right to move about freely is being pitted against the government’s power to lock down communities at a moment’s notice. And in this tug-of-war between individual freedoms and government power, “we the people” have been on the losing end of the deal.

Curiously enough, these COVID-19 restrictions dovetail conveniently with a national timeline for states to comply with the Real ID Act, which imposes federal standards on identity documents such as state drivers’ licenses, a prelude to this national identification system.

Talk about a perfect storm for bringing about a national ID card, the ultimate human tracking device.

Granted, in the absence of a national ID card, which would make the police state’s task of monitoring, tracking and singling out individual suspects far simpler, “we the people” are already tracked in a myriad of ways: through our state driver’s licenses, Social Security numbers, bank accounts, purchases, and electronic transactions; by way of our correspondence and communication devices—email, phone calls, and mobile phones; through chips implanted in our vehicles, identification documents, even our clothing.

Add to this the fact that businesses, schools, and other facilities are relying more and more on fingerprints and facial recognition to identify us. All the while, data companies such as Acxiom are capturing vast caches of personal information to help airports, retailers, police, and other government authorities instantly determine whether someone is the person he or she claims to be.

This informational glut—used to great advantage by both the government and corporate sectors—has converged into a mandate for “an internal passport,” a.k.a., a national ID card that would store information as basic as a person’s name, birth date, and place of birth, as well as private information, including a Social Security number, fingerprint, retinal scan, and personal, criminal and financial records.

A federalized, computerized, cross-referenced, databased system of identification policed by government agents would be the final nail in the coffin for privacy (not to mention a logistical security nightmare that would leave Americans even more vulnerable to every hacker in the cybersphere).

Americans have always resisted adopting a national ID card for good reason: it gives the government and its agents the ultimate power to target, track and terrorize the populace according to the government’s own nefarious purposes.

National ID card systems have been used before, by other oppressive governments, in the name of national security, invariably with horrifying results.

For instance, in Germany, the Nazis required all Jews to carry special stamped ID cards for travel within the country. A prelude to the yellow Star of David badges, these stamped cards were instrumental in identifying Jews for deportation to death camps in Poland.

Author Raul Hilberg summarizes the impact that such a system had on the Jews:

The whole identification system, with its personal documents, specially assigned names, and conspicuous tagging in public, was a powerful weapon in the hands of the police. First, the system was an auxiliary device that facilitated the enforcement of residence and movement restrictions. Second, it was an independent control measure in that it enabled the police to pick up any Jew, anywhere, anytime. Third, and perhaps most important, identification had a paralyzing effect on its victims.

In South Africa during apartheid, pass books were used to regulate the movement of black citizens and segregate the population. The Pass Laws Act of 1952 stipulated where, when, and for how long a black African could remain in certain areas. Any government employee could strike out entries, which canceled the permission to remain in an area. A passbook that did not have a valid entry resulted in the arrest and imprisonment of the bearer.

Identity cards played a crucial role in the genocide of the Tutsis in the central African country of Rwanda. The assault, carried out by extremist Hutu militia groups, lasted around 100 days and resulted in close to a million deaths. While the ID cards were not a precondition to the genocide, they were a facilitating factor. Once the genocide began, the production of an identity card with the designation “Tutsi” spelled a death sentence at any roadblock.

Identity cards have also helped oppressive regimes carry out eliminationist policies such as mass expulsion, forced relocation, and group denationalization. Through the use of identity cards, Ethiopian authorities were able to identify people with Eritrean affiliation during the mass expulsion of 1998. The Vietnamese government was able to locate ethnic Chinese more easily during their 1978-79 expulsion. The USSR used identity cards to force the relocation of ethnic Koreans (1937), Volga Germans (1941), Kamyks and Karachai (1943), Crimean Tartars, Meshkhetian Turks, Chechens, Ingush and Balkars (1944) and ethnic Greeks (1949). And ethnic Vietnamese were identified for group denationalization through identity cards in Cambodia in 1993, as were the Kurds in Syria in 1962.

And in the United States, post-9/11, more than 750 Muslim men were rounded up on the basis of their religion and ethnicity and detained for up to eight months. Their experiences echo those of 120,000 Japanese-Americans who were similarly detained 75 years ago following the attack on Pearl Harbor.

Despite a belated apology and monetary issuance by the U.S. government, the U.S. Supreme Court has yet to declare such a practice illegal. Moreover, laws such as the National Defense Authorization Act (NDAA) empower the government to arrest and detain indefinitely anyone they “suspect” of being an enemy of the state.

You see, you may be innocent of wrongdoing now, but when the standard for innocence is set by the government, no one is safe.

Everyone is a suspect.

And anyone can be a criminal when it’s the government determining what is a crime.

It’s no longer a matter of if, but when.

Remember, the police state does not discriminate.

At some point, it will not matter whether your skin is black or yellow or brown or white. It will not matter whether you’re an immigrant or a citizen. It will not matter whether you’re rich or poor. It won’t even matter whether you’re driving, flying or walking.

After all, government-issued bullets will kill you just as easily whether you’re a law-abiding citizen or a hardened criminal. Government jails will hold you just as easily whether you’ve obeyed every law or broken a dozen. And whether or not you’ve done anything wrong, government agents will treat you like a suspect simply because they have been trained to view and treat everyone like potential criminals.

Eventually, when the police state has turned that final screw and slammed that final door, all that will matter is whether some government agent—poorly trained, utterly ignorant and dismissive of the Constitution, way too hyped up on the power of their badges, and authorized to detain, search, interrogate, threaten and generally harass anyone they see fit—chooses to single you out for special treatment.

We’ve been having this same debate about the perils of government overreach for the past 50-plus years, and still, we don’t seem to learn, or if we learn, we learn too late.

All of the excessive, abusive tactics employed by the government today—warrantless surveillance, stop and frisk searches, SWAT team raids, roadside strip searches, asset forfeiture schemes, private prisons, indefinite detention, militarized police, etc.—started out as a seemingly well-meaning plan to address some problem in society that needed a little extra help.

Be careful what you wish for: you will get more than you bargained for, especially when the government’s involved.

In the case of a national identification system, it might start off as a means of tracking COVID-19 cases in order to “safely” re-open the nation, but it will end up as a means of controlling the American people.

For those tempted to justify these draconian measures for whatever reason—for the sake of their health, the economy, or national security—remember, you can’t have it both ways.

You can’t live in a constitutional republic if you allow the government to act like a police state.

You can’t claim to value freedom if you allow the government to operate like a dictatorship.

You can’t expect to have your rights respected if you allow the government to treat whomever it pleases with disrespect and an utter disregard for the rule of law.

As I make clear in my book Battlefield America: The War on the American People, if you’re inclined to advance this double standard because you believe you have done nothing wrong and have nothing to hide, beware: there’s always a boomerang effect.

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Department of Justice FBI Inspector General Intelwars Michael horowitz national security terror Terrorism

DOJ watchdog finds serious flaws in FBI’s past handling of potential terror threats

The Department of Justice’s government watchdog has released a report faulting the Federal Bureau of Investigation for how it has handled information on potential homegrown terror threats.

The report, released Wednesday by Inspector General Michael Horowitz, focused on the bureau’s efforts to investigate and identify homegrown violent extremists, or HVEs, which it defined as “global jihad-inspired individuals who are in the United States, have been radicalized primarily in the United States, and are not receiving individualized direction from a foreign terrorist organization (FTO).”

Among the problems that the investigation found were that some of those designated extremists went on to conduct terror attacks after they had already been on the FBI’s radar.

“Since September 11, 2001, HVEs have carried out over 20 attacks in the United States, some of which occurred after the FBI closed a counterterrorism assessment or investigation on the individual,” the report explained. “During our audit, we found at least six attacks committed in the United States by individuals who the FBI had previously assessed or investigated and who were subsequently categorized as HVEs.”

Among such attacks listed in the inspector general’s report are the 2013 Boston Marathon Bombing, the 2009 Fort Hood Massacre, and the 2016 Pulse Nightclub shooting.

Furthermore, while the bureau conducted reviews in the wake of attacks by people previously designated as HVEs in order to figure out what went wrong in the investigation process, a related news release explained, “FBI did not ensure that all field offices and headquarters implemented recommended improvements and subsequent policy requirements.”

Therefore, it added, “FBI field offices continued to conduct some counterterrorism assessments that did not meet FBI requirements or standards.”

But the report also noted other follow-through problems associated with a widespread review of previously closed counterterrorism assessments that the FBI conducted in 2017. The review found that 6% of the cases it looked over didn’t properly assess potential threats and needed further investigation, the reports notes.

However, “nearly 40 percent” of those flagged assessments “went unaddressed for 18 months after deficiencies were known,” the report said. “As a result, potential terrorist threats were not mitigated for more than 1 year.”

In a Wednesday video address describing the investigation’s findings, Horowitz acknowledged, “This is a particularly challenging area for the FBI because of the need to preserve constitutional protections while maintaining national security.”

He added that his office has made seven recommendations for the FBI to address the listed problems, “and the FBI has agreed with all of them.”

Horowitz was also the inspector general behind the December report on the origins of the FBI’s Trump-Russia probe that found “at least 17 significant errors or omissions in the Carter Page FISA applications.”

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A Limited-Government Republic versus a National-Security State

The worst mistake that the American people have made in the entire history of the United States was to permit the conversion of the federal government to a national-security state. That conversion has played a major role in the destruction of our liberty, privacy, and economic well-being.

What is a national-security state? It is a totalitarian-like governmental structure that consists of an enormous military-intelligence establishment with extraordinary powers, such as indefinite detention, torture, secret surveillance, and even assassination of both citizens and foreigners.

To put the matter into a larger context, North Korea is a national-security state. So are Egypt, China, Cuba, and Russia. And the United States. All of the regimes in those countries wield totalitarian-like powers.

It wasn’t always that way in the United States. Our nation was founded as a limited-government republic and remained that way for nearly 150 years. No Pentagon, no CIA, and no NSA. There was an army but it was relatively small — big enough to win battles against Indian tribes or a neighboring weak and impoverished country such as Mexico, but nowhere big enough to engage in wars around the world.

That was how our American ancestors wanted it. The last thing they wanted was a federal government that possessed a large permanent military-intelligence establishment. That’s because they believed that that type of governmental system would inevitably destroy their liberty and their well-being.

When the delegates met at the Constitutional Convention, their assigned task was simply to modify the Articles of Confederation, which formed a third kind of governmental structure, one under which the states had been operating for more than a decade. Under the Articles, the federal government’s powers were so weak that — get this — it didn’t even have the power to tax. Imagine: For more than ten years, Americans lived under a government that was prohibited from levying any taxes whatsoever.

But there were problems with the Articles, and the purpose of Constitutional Convention was to come up with solutions to those problems through modifications to the Articles of Confederation. Instead, the delegates to the convention, who met in secret, came up with an entirely different proposal, one that called for a different type of governmental system — a limited-government republic, one where the federal government would have more powers, including the power to tax.

Americans were extremely leery. They believed that the greatest threat to the freedom and well-being of a citizenry lay not with some foreign regime but rather with their own government. They also understood that the way that governments throughout history had destroyed the freedom of their citizens was, in large part, through the power of their military forces. If people dissented or rebelled against what the government was doing, officials could employ military force to quell the rebellion. But if they didn’t possess a powerful military, they lacked the means to do that, which would inhibit them from doing bad things to the citizenry.

Suppose the proponents of the Constitution had said to the American people,

The Constitution will bring into existence a federal government that will include a vast, permanent, and ever-growing military-intelligence establishment, with military and intelligence bases all over the United States and the world. Together with the president, the military will have the power to embroil the nation in war anywhere in the world without congressional consent. It will possess the power to spy on and keep files on the American people, in order to keep them safe. It will have the power to take Americans into custody and place them in military dungeons or secret intelligence prison camps, where they can be tortured. It will also have the power to assassinate Americans.

If the American people had heard that from the delegates at the Constitutional Convention, they would have died laughing. They would have thought it was a joke. When they later learned that the delegates were totally serious, the American people would have summarily rejected the deal and instead would have continued operating under the Articles of Confederation.

In fact, the reason Americans were so leery of the proposal offered by the proponents of the Constitution was that they were concerned that they might be bringing into existence a government that wielded those types of omnipotent powers. That’s why they were so opposed to what they called a “standing army,” which was their term for a large, permanent military-intelligence establishment.

The proponents of the Constitution assured Americans that that could never happen. The reason was that the charter that was bringing the federal government into existence also, at the same time, delineated its powers. If a power wasn’t listed in the Constitution, then it simply didn’t exist, which meant it couldn’t be exercised against the citizenry.

On the basis of that assurance but still leery, the American people approved the deal, but only on the condition that the Constitution would be amended immediately after being approved. The amendments would provide express restrictions on the powers of federal officials to destroy the liberty and well-being of the people.

Some proponents of the Constitution responded that such restrictions were unnecessary because if a power to destroy people’s liberty and well-being wasn’t listed in the Constitution, it couldn’t be exercised. A bill of rights, such proponents said, would be superfluous.

But Americans were not willing to settle for that principle. Knowing that people who are attracted to political power inevitably come up with good excuses for destroying people’s liberty, Americans wanted to make it doubly clear that federal officials lacked the power to do tyrannical things to them. That’s why they expressly prohibited them from destroying people’s freedom of speech, freedom of the press, freedom of religion, the right of assembly, the right to keep and bear arms, and others.

That wasn’t all, however. The Fourth, Fifth, Sixth, and Eighth Amendments expressly restricted the power of federal officials to kill both Americans and foreigners. The government couldn’t kill anyone or deprive anyone of liberty or property without “due process of law,” a term that stretched back to Magna Carta in 1215, when the barons of England forced their king to acknowledge that his powers over them were limited.

Due process required formal notice of charges and a trial before the government could kill someone or take away his liberty or his property. If a person was targeted, the Bill of Rights guaranteed that he could elect to be tried by a jury of ordinary citizens rather than by a judge or a tribunal. Recognizing the inherent power of government, the amendments also guaranteed that a person being targeted could have an attorney represent him. The government was also prohibited from conducting searches without judicially issued warrants based on probable cause that a crime had been committed. They also prohibited federal officials from inflicting what they called “cruel and unusual” punishments on people.

Monsters

Our American ancestors had brought into existence a limited-government republic, a type of political system in which the government was delegated very few powers and then expressly forbidden by the Bill of Rights to exercise totalitarian-like powers. While there were backroom political deals that would be made, the overall operations of the government were open and transparent. That was the governmental system under which Americans lived for nearly 150 years.

At the same time, America adopted a noninterventionist foreign policy, one in which the federal government would not embroil the nation in foreign conflicts, wars, disputes, revolutions, or coups. This foreign policy was summed up in a speech that U.S. Secretary of State John Quincy Adams delivered to Congress on the Fourth of July, 1821. Entitled “In Search of Monsters to Destroy,” the speech pointed out that America’s founding foreign policy was not to send military forces abroad to save foreigners from the monstrous conditions in their countries, including dictatorships, famines, wars, and revolutions. If America were ever to abandon that noninterventionist foreign policy, Adams warned, U.S. officials would start behaving like dictators.

Does that mean that Americans were indifferent to the plights of foreigners? On the contrary. It just meant that they wouldn’t help them by bringing death and destruction through military force to their lands. Instead, America would open its borders to anyone who managed to escape his conditions, with no possibility that he would be rejected and forcibly returned to his homeland.

The shift toward empire and intervention began in 1898 in the Spanish-American War. Certain Spanish colonies were waging a war of independence against Spain. The U.S. government intervened in their behalf. As soon as Spain was defeated, however, the U.S. government assumed control over some of its former colonies. That’s how the United States acquired Puerto Rico, control over Cuba, the U.S. military base at Guantanamo Bay, Guam, and the Philippines. In the Philippines, U.S. forces killed hundreds of thousands of Filipinos who continued to fight for their independence, this time from the United States. The notion was that in order for the United States to become a great nation, it needed to become an empire and acquire colonies, just like the Spanish and British empires.

After that came U.S. intervention into World War I. Woodrow Wilson maintained that U.S. intervention would bring about an end to all war and make the world “safe for democracy” by totally and completely defeating Germany. Despite the loss of tens of thousands of American men, Adolf Hitler, Benito Mussolini, and Joseph Stalin rose to power in Germany, Italy, and Russia.

Once World War II broke out, Americans were overwhelmingly opposed to intervening again. But Franklin Roosevelt succeeded in provoking Japan into “firing the first shot” with its attack on Pearl Harbor, which brought about U.S. entry into the deadliest and most destructive war the world has ever seen.

The CIA

When the war was finally over in 1945, Americans were ecstatic that the Nazi regime and the Japanese Empire had been defeated and that their lives could return to normal. Not so fast, U.S. officials told Americans. They said that even though the Axis Powers had been defeated, the United States now faced another enemy, one that was arguably more dangerous than the Axis. That enemy was communism or, to be more exact, an international communist conspiracy to take over the world that was based in Moscow, Russia. The communists were coming to get us, U.S. officials said, and take over the U.S. government and the nation.

Therefore, they maintained, it would be necessary to intervene in hot wars to stop the Reds from advancing toward America and to wage a “cold war” against the Soviet Union. That’s how tens of thousands of U.S. soldiers got sacrificed in civil wars in Korea and Vietnam. U.S. officials said that if the United States failed to intervene in those conflicts, the Reds would be at our doorstep before too long.

That cold war is what brought about the conversion of the federal government from a limited-government republic to a national-security state, which was what the Soviet Union was. U.S. officials maintained that a limited-government republic-type of governmental system would be no match for a national-security-state type of governmental system, given that the latter placed no constraints on agents to do whatever they needed to do to win. In order to prevent a communist takeover of the United States, it would be necessary to convert the federal government to the same type of governmental system the Soviet Union had. The implication, of course, was that as soon as the United States won the Cold War, Americans could have their limited-government republic back.

Soon after the CIA was established in 1947, ostensibly as an “intelligence-gathering” agency to provide secret information to the president, it began specializing in the art of assassination, including the preparation of a top-secret “assassination manual” that explained various methods of assassination and, equally important, how to keep people from discovering that it was a state-sponsored assassination. The Fifth Amendment was eviscerated. In the name of protecting national security, the federal government, through the CIA, now wielded the power, to secretly deprive anyone of life it wanted.

In 1953, the CIA secretly initiated a coup in Iran that ousted the democratically elected prime minister of the country, Mohammad Mossadegh, from power and replaced him with the shah of Iran, one of the world’s most brutal dictators. The notion was that Mossadegh was leaning communist. In 1979, fed up with the U.S.-supported tyranny under which they had suffered for 25 years, the Iranian people revolted and ousted the shah from power. Unfortunately, they were unsuccessful in restoring the democratic system that the CIA had destroyed, leaving them suffering under a different type of dictatorship. The CIA’s coup is the root of the bad relations between Iran and the United States today.

One year later, 1954, the CIA secretly initiated a coup in Guatemala, which succeeded in ousting the democratically elected president of that country, Jacobo Arbenz, who was a socialist, and replacing him with a pro-U.S. military dictator. Arbenz was lucky that he was able to escape the country because the CIA had prepared an assassination list that undoubtedly had him at the top. That coup incited a 30-year-long civil war that killed more than a million Guatemalans.

After the 1959 Cuban revolution brought a communist regime into power, the Pentagon and the CIA, along with other U.S. officials, went apoplectic. America couldn’t survive with a “communist dagger” pointed at its throat from only 90 miles away, they said. Thus, the CIA launched an unsuccessful invasion of the island, several unsuccessful assassination attempts against Cuban president Fidel Castro, and a brutal economic embargo that, in combination with Castro’s socialist system, has squeezed the economic lifeblood out the Cuban people.
The national-security establishment’s incessant quest to effect regime change in Cuba also brought the United States and the Soviet Union to the brink of nuclear war.

The fact is that there was never any possibility that the communists were coming to get us and take over the federal government and the country. The Cold War was one great big racket, one that enriched countless people, including an army of “defense” contractors and subcontractors who got rich feeding at the public trough. Most important, the Cold War and the national-security-state form of governmental structure that came with it succeeded in destroying the rights and liberties of the Americans people.

The Middle East

Suddenly and unexpectedly, the Cold War ended in 1989, when the Soviet Union, which had gone bankrupt, called it quits. The Berlin Wall came down and Russian troops exited Eastern Europe.

Needless to say, the national-security establishment was concerned about its future. No more Cold War obviously meant that Americans were entitled to have their limited-government republic back. But the Pentagon, the CIA, and the NSA were not eager to be dismantled. Soon after the end of the Cold War, they intervened in the Persian Gulf War against their former partner and ally, Saddam Hussein, which began a 30-year campaign of U.S. death, destruction, and humiliation against people in the Middle East.

It was no surprise that that campaign engendered deep anger and rage among the people who were targeted for death and destruction. That’s when the anti-American terrorist blowback began. It started with the 1993 attack on the World Trade Center, which was followed by the attacks on the USS Cole, the attacks on the U.S. embassies in East Africa, and the 9/11 attacks.

The 9/11 attacks gave the federal government what our American ancestors had feared when the Constitution was being proposed to them — a government consisting of a massive, ever-growing military-intelligence establishment with omnipotent, totalitarian powers to keep the nation “safe” from the terrorist blowback that U.S. officials had produced with their interventionism.

That’s how Americans have ended up with a government that wields the power to take them into custody and throw them indefinitely into a military dungeon and torture them to any extent whatsoever. It is how Americans have ended up with a government that wields the power to conduct secret surveillance on them, just like government officials do in China, North Korea, and Cuba. It is how Americans have ended up with a government that wields the power to assassinate them.

Anyone who lives under a national-security-state governmental system cannot possibly be considered free. Our ancestors understood that principle. Their successors living today have yet to figure that out. Or if they have figured it out, they have chosen to trade liberty for the pretense of safety and security.

For Americans who want freedom, a necessary prerequisite is the restoration of a limited-government republic and a noninterventionist foreign policy, which necessarily entails the dismantling, not the reform, of the Pentagon, the military-industrial complex, the CIA, and the NSA.

This article was originally published in the November 2019 edition of Future of Freedom.

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