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We remain embroiled in a debate over the nature and extent of our own government’s spying on us. The Foreign Intelligence Surveillance Act, which was enacted in 1978 as a response to the unlawful government spying of the Watergate era, was a lawful means for the government to engage in foreign surveillance on U.S. soil, but it has morphed into unchecked government spying on ordinary Americans.

The journey that domestic spying has taken in 40 years has been one long steady march of massive increase in size and scope. The federal government now employs more than 60,000 people to spy on all Americans, including the White House, the Pentagon, the federal courts and one another. As well, the National Security Agency and the intelligence arm of the FBI have 24/7 access to the computers of all telecoms and computer service providers in the U.S. And certain politicians have access to whatever the NSA and the FBI possess.

Last week, we witnessed a new turn as politicians engaged in cherry-picking snippets from classified raw intelligence data that support their political cases — pro-Trump and anti-Trump.

Raw intelligence data consists of digital versions of telephone conversations and copies of text messages, emails and other communications, as well as fiber-optic internet traffic (legal, medical and banking records, for example) and secret testimony and briefings intended only for the eyes and ears of those who possess a security clearance.

The surveillance state is now here.

The Republican members of the House Intelligence Committee fired the first salvo by releasing a memo derived from classified raw intelligence, which they claimed would show a conspiracy in the Obama Department of Justice, including the FBI, to spy on Donald Trump’s campaign and pass along the fruits of that spying to the Democrats. The issue they chose to highlight is the DOJ application to a Foreign Intelligence Surveillance Court judge for surveillance on Carter Page, a former foreign policy adviser to candidate Trump who once boasted that he also advised the Kremlin.

The memo’s authors wrote about intelligence data they did not personally see; they selectively extracted and purported to summarize raw intelligence data but quoted none of it verbatim; they intentionally sat on their conclusions that the feds regularly have abused FISA authorities throughout the congressional debate to expand FISA; and a principal drafter of the memo — Rep. Trey Gowdy — advises that the raw data he saw and the memo he wrote have nothing to do with special counsel Robert Mueller’s investigation of the president.

The Republican memo also reveals that former MI6 agent Christopher Steele, the author of the dossier that accuses Trump of pre-presidential money laundering and grossly inappropriate personal behavior but has many parts that have not been publicly verified, was a “longtime FBI source,” and a summary of his work was part of the DOJ’s application for continued surveillance of Page.


That quoted phrase is today a major headache for the DOJ, as the American and British governments, which regularly share intelligence and occasionally spy for each other, have agreed not to recruit the services of each other’s agents. But the FBI obviously recruited Steele. If Steele was an FBI asset while still a British spy — if he was spying for the FBI and MI6 at the same time — he may be exposed to a criminal prosecution in Britain.

The Democrats on the committee have written their own memo, which the committee voted unanimously to release. It will be up to the president to permit or bar its full or partial release. The Democrats claim that their memo will show that the DOJ was candid and truthful when it sought a FISA surveillance warrant on Page and that the application for the renewal included far more than Steele’s tainted work.

Why should anyone care about these political games?

The loss of liberty rarely comes about overnight or in one stroke. In a democracy, that loss is normally a slow process, often pushed along by well-intentioned folks who do not even realize until it is too late that they have created a monster. FISA is a monster. It began as a means of surveilling foreign agents in the U.S., and today it is used for surveilling any American at any time.

If you call a bookstore in Florence from a telephone in New Jersey, the government’s computers will be alerted. A federal agent will download the digital copy of your conversation, even though it was only about ordering a book. Then that communication may be used to justify surveillance of you whenever you talk to anyone else, in the U.S. or in any foreign country.

This is blatantly unconstitutional, and it is often fruitless. And we know it can happen to anyone.

The Supreme Court has ruled that electronic surveillance constitutes a search under the Fourth Amendment. That amendment prohibits warrantless searches and requires probable cause of crime as the sole trigger for judges to sign search warrants. FISA only requires probable cause relating to a foreign agent on one end of a phone call — a far lower standard — to trigger a warrant. The government has convinced the FISC that it should grant warrants based on probable cause of talking to someone who has ever spoken to a foreign person, whether an agent of a foreign government or an innocent foreign bookseller.

That judicially created standard is so far afield from the Fourth Amendment as to render it legally erroneous and profoundly unconstitutional. Yet the FISA expansion that the president signed into law last month — after the debate during which House Intelligence Committee Republicans intentionally remained mute about their allegations of FISA abuses — purports to make this Stasi-like level of surveillance lawful.

The political use of intelligence data makes the owner of the data a serious threat to personal liberty, and it renders his instruments monstrous.

Copyright 2018 Andrew P. Napolitano. Distributed by

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  1. anonymous • Disclaimer says:

    Once again, Mr. Napolitano tucks within a generally accurate explanation of governmental abuse some artful propaganda to demonize Russia and to protect his Establishment friends.

    “And certain politicians have access to whatever the NSA and the FBI possess.” Which certain politicians?

    “.. Carter Page, a former foreign policy adviser to candidate Trump who once boasted that he also advised the Kremlin.” Why no particulars about this boast, so that readers might examine it for themselves?

    “.. special counsel Robert Mueller’s investigation of the president.” Why this misstatement of Mr. Mueller’s official authorization?

    “.. the dossier that accuses Trump of pre-presidential money laundering ..” The dossier does not make any such accusation.

    “But the FBI obviously recruited Steele.” Why no mention of Fusion GPS, the DOJ’s Mr. Ohr, et al?

    “The government has convinced the FISC that it should grant warrants based on probable cause of talking to someone who has ever spoken to a foreign person, whether an agent of a foreign government or an innocent foreign bookseller.” Actually, based on the best reportage, this far overstates the scope of the program, both de jure and de facto. Mr. Napolitano is attempting to channel the discussion towards legislative amendments or judicial invalidations of FISA that would be prospective in their effect, and away from any criminal conduct of Establishment actors.

  2. The State has, and always will be the enemy of the people.

  3. “It can is happening here.”

    There, fixed it for ya.

    I hope they enjoy it when I call mom on the weekends. May as well watch the weather channel. But it’s comforting to know my crazy ex-girlfriend cares what I am up to.

    • Agree: Realist
  4. Why should anyone care about these political games?

    I think it’s the crime people care about. Judge.

  5. Renoman says:

    Been lied to by the Government my entire life [I’m 62] everything they touch turns to shit, they steal and lie and kill people it’s just crazy. I believe nothing they say and I have as little to do with them as possible. The Banks are a close second, the Mafia is far preferable.

  6. Realist says:

    The Deep State will not be denied.

  7. bartok says:

    The Judge is an open-borders libertarian, though he takes pains to conceal it.

    There’s little difference between his vision of the future, where mass immigration brings a flood of low-trust populations who have no tradition of individual liberty, and that of the ruling neolib elites.

    I guess in the Judge’s future, individual liberty and limitation of the surveillance state will be forced on these newcomers through constitutional restoration even though these people don’t want it? How’s individual liberty faring in Islamic Britain and Greater China (Australia, New Zealand and Canada? Free speech is no longer protected outside of the US. Only Whites care about free speech, and the Judge is cool with the ongoing White Genocide Worldwide (WGW).

    As always, thanks for nothing, Judge.

  8. The Judge completely lost my respect with this propaganda piece. Better people had a look at Mueller’s deep ties to crime & participating in/concealing crimes at DoJ prior to his ever becoming FBI Director.

    ^ I think the formerly-good-judge is making a cherry-picker of himself

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