Liberty Is Under Attack

Speaker Johnson's flip on amending FISA is an unmitigated error.

Photo by Tim Mossholder on Unsplash

As a person who loves her county, its history, and the Constitution, I’ve really been grappling with Federal Intelligence Surveillance Act (FISA) and the use of secretive FISA courts (FISC). First established in 1978 to surveil our foreign adversaries, over time like any other government entity, its reach grows and raises civil rights questions.

After the devastation of 9/11, fear gripped Americans.There had never been such a coordinated attack on the contiguous United States. The Patriot Act became of national importance, especially with the removal of the “wall” that separated information sharing between the intelligence communities. But, it also opened the door for Americans to be surveilled.

Oversteps were glaringly apparent in the 2016 election and illustrated in the Durham report that followed. The FBI did not play by the rules. FISC was lied to in order to receive authorization to investigate a presidential candidate. The basics of investigating Russian ties to Trump weren’t followed or the investigation wouldn’t have lasted a day. Going all the way up the chain of command, the CIA, the FBI, the NSA, Hillary Clinton, and Barack Obama were complicit in the fraudulent Crossfire Hurricane. Meanwhile, the investigation regarding Hillary Clinton’s use of private servers and investigations into the Clinton Foundation were done at a snail’s pace because all assumed she would become president.

It doesn’t matter what you think of Trump. What happened to him was treasonous behavior, yet no one involved got anything but a slap on the wrist. James Clapper works for CNN; Lisa Page and Peter Strzok sued for wrongful termination and Trump was deposed; John Brennan works for NBC; Andrew McCabe, who sued and won to get his pension, now works in academia; and we can see Hillary and Barack are living their best lives. Our intelligence communities who took an oath to uphold the Constitution became politically partisan under the Obama regime and were rewarded for their efforts.

This is why Speaker of the House Mike Johnson’s Simone Biles-inspired flip on an amendment to FISA that would have ended warrantless data collection of Americans in contact with surveilled foreigners overseas was a shock.

Johnson was staunchly against targeting Americans without a warrant until he was pulled aside for a private briefing and saw secret intelligence reports. It must have been quite a discussion. Think of our branches of government as a sort of mafia. Those with more power pressure those with less power. “Now as that card burns,” said Tony Soprano, “so will your soul burn in hell if you betray your friends in the family.”

That’s how our government is run. Backroom threats and deals regardless of the effect on Americans. Why? They say that they are avoiding another 9/11.

It’s true that we have enemies both foreign and domestic. However, it seems to me that 23 years is a long enough period of time to have improved security. Our intelligence agencies should no longer be allowed to bypass the supposed time consuming law of having to obtain a warrant from a FISC judge. Even CBS News had to admit, “In the past year, U.S. officials have revealed a series of abuses and mistakes by FBI analysts in improperly querying (a.k.a. searching) the intelligence repository for information about Americans or others in the U.S., including about a member of Congress and participants in the racial justice protests of 2020 and the Jan. 6, 2021, riot at the U.S. Capitol.”

Technology has improved since 2001, and with that advancement Americans’ data collection has become vast. Here was a chance for Republicans and many Democrats to stick together and stand for the 4th Amendment of the Constitution. But, in essence, Johnson’s knee caps were broken. Protection of the American people’s rights is of the utmost importance unless we can reuse the imagery of 9/11 to explain the need set the Constitution aflame.

Johnson gave a hypothetical while appearing on Sunday Morning Futures With Maria Bartiromo regarding his sudden reversal on the amendment to Section 702:

"If we're surveilling a terrorist in the Middle East and the terrorist sends an email to a guy named John Smith in any town in the U.S.A. and the email says that components will be delivered to your house this afternoon for further assembly and delivery to the high school stadium during the game, I think every American would want the analyst who saw that email from that foreign terrorist to do a query of the other communications between those two persons. That is not unlawful and that must continue. If that analyst had to get a warrant before that, it would add a huge time delay. The courts are not set up to be able to handle all that volume and Americans may die” (Newsweek).

I agree with this thought process. We want to catch anyone out to harm fellow Americans before they act. However, how many Americans’ emails, texts, and phone communications are they sifting through for FISC to be overwhelmed? How many Americans are having communications with foreigners about terrorism, killing others, or blowing something up? How much of our communications that have no bearing on terrorism are still in a repository instead of being destroyed? If Speaker Johnson truly believes that FISC would have too many warrants that would take too much time to wait for approval, then consider a streamlined FISC process.

After the partisan activities of our intelligence communities toward Trump, it is difficult to trust that those of us with differing political or societal sensibilities than the current regime aren’t going to be subject to unlawful searches and seizures. If they lied and got away with it once, it only stands to reason it will happen again. Remember the definition of extremist evolves.

And this is the quandary I find myself in. I want America and Americans safe, but I no longer have faith in the intelligence communities. Equally, we should all question a super secret group of rotating judges who have rubber stamped nearly every FISA warrant that has come across their desk. According to the Princeton Legal Journal, from 1979-2012, of 33,492 warrants only 12 were rejected.

Clearly the Republicans and many civil libertarian Democrats see a problem because this controversial Section 702 of FISA will only last for two years rather than five. Johnson is betting that Trump will win the presidential election, and the Republicans will take control of both houses. Thus during the mid-term, this issue will be front and center again. Just like the constant Band-Aids to avoid government shutdowns, the can is once again kicked down the road.

The games continue as politicians use these battles to their advantage when running for re-election while Americans and their Constitutional rights are mere pawns. One candidate and possible president cannot completely remove the deep state in four years. That’s the reason why we have three co-equal branches of government. But we have a part in all of this too. We need to use our critical thinking skills before allowing government encroachment on our rights by taking voting seriously.

In the meantime, just as businesses and schools provide professional development, it would be wise for our legislative branch to take annual refresher courses on the Constitution. Hillsdale College provides its online Constitution 101 course for free.