Congress Created a Monster (Judge Napolitano)

Those of us who believe that the Constitution means what it says have been arguing since the late 1970s that congressional efforts to strengthen national security by weakening personal liberty are unconstitutional, un-American and ineffective. The Foreign Intelligence Surveillance Act, which Congress passed in the aftermath of President Richard Nixon's use of the CIA and the FBI to spy on his political opponents, has unleashed demons that now seem beyond the government's control and are more pervasive than anything Nixon could have dreamed of.

This realization came to a boiling point last weekend when President Donald Trump accused former President Barack Obama of monitoring his telephone calls during the 2016 presidential election campaign. Can a U.S. president legally spy on a political opponent or any other person in America without any suspicion, probable cause or warrant from a judge? In a word, yes.

The president can order the National Security Agency to spy on anyone at any time for any reason, without a warrant. This is profoundly unconstitutional but absolutely lawful because it is expressly authorized by the FISA statute.

All electronic surveillance today, whether ordered by the president or authorized by a court, is done remotely by accessing the computers of every telephone and computer service provider in the United States. The NSA has 24/7/365 access to all the mainframe computers of all the telephone and computer service providers in America.

The service providers are required by law to permit this access and are prohibited by law from complaining about it publicly, challenging it in court or revealing any of its details. In passing these prohibitions, Congress violated the First Amendment, which prohibits it from infringing upon the freedom of speech.

The fruits of electronic surveillance cannot be used in criminal prosecutions but can be shared with the president. If they are revealed publicly, the revelation constitutes computer hacking, a federal crime. Nevertheless, some of what was overheard from telephone conversations between the Russian ambassador to the U.S. and former Lt. Gen. Michael Flynn, Trump's former national security adviser, was revealed to the public -- a revelation that profoundly disturbed the White House and many in the intelligence community and constituted a crime.

The original purpose of FISA was to place the judiciary as an intermediary between the nation's spies and the foreign agents we all know are among us. The theory was that the NSA would first need to demonstrate to a secret court probable cause that the target of the spying is an agent of a foreign power and this would restrain the NSA from spying on ordinary Americans. This probable cause of foreign agency was a dramatic congressional rejection of the constitutional standard -- namely, probable cause of crime -- for the issuance of warrants. Foreign agency is not a crime.

This congressional rejection of constitutional norms began the slippery slope in which the foreign agency standard has morphed by legislation and by secret interpretations of the Foreign Intelligence Surveillance Court to probable cause of foreign personhood to probable cause of talking to a foreign person to probable cause of being able to talk to a foreign person to -- dropping the probable cause standard altogether -- anyone who speaks to anyone else who could speak to a foreign person.

This Orwellian and absurd expansion was developed by spies and approved by judges on the FISA court. The NSA argued that it would be more efficient to spy on everyone in the United States than to isolate bad people, and the court bought that argument.

Hence, FISA warrants do not name particular people or places as their targets as the Constitution requires. Rather, they merely continue in place the previous warrants, which encompass everyone in the country. FISA warrants are general warrants, allowing intelligence agents to listen to whomever they wish and retain whatever they hear. General warrants are expressly prohibited by the Fourth Amendment, which requires that all warrants for all purposes be based on probable cause of crime and particularly describe the person or thing to be seized -- e.g., a conversation -- or the place to be searched.

Even though the NSA already has the legal, though unconstitutional, authority to capture any phone conversation or computer keystroke it wishes, its 60,000 agents lack the resources to listen to all conversations or read all electronic communications in real time. But it does capture the digital versions of all computer keystrokes made in or to the U.S. and all conversations had within the U.S. or involving someone in the U.S.; it has been doing so since 2005. And it can download any conversation or text or email at will.

That's why the recent argument that Obama ordered the NSA to obtain a FISA warrant for Trump's telephone calls and a judge issued a warrant for them is nonsense. The NSA already has a digital version of every call Trump has made or received since 2005. Because the NSA -- which now works for Trump -- is a part of the Defense Department, it is subject to the orders of the president in his capacity as commander in chief. So if the commander in chief wants something that a military custodian already has or can create -- such as a transcript of an opponent's conversations with political strategists during a presidential campaign -- why would he bother getting a warrant? He wouldn't.

All of this leads to information overload -- so much material that the communications of evil people are safely hidden in with the mountain of data from the rest of us. The NSA captures the digital equivalent -- if printed -- of 27 times the contents of the Library of Congress every year.

All of this also leads to the monstrous power of the NSA to manipulate, torment and control the president by selectively concealing and selectively revealing data to him. The Constitution does not entrust such power to anyone in government. But Congress has given it.

All of this also substantially impairs a fundamental personal liberty, the right to be left alone -- a right for which we seceded from Great Britain, a right guaranteed by the Fourth Amendment and a right for which we fought wars against tyrants who we feared would take it from us.

Yet after we won those wars, we permitted our elected representatives to crush that right. Those faithless representatives have created a monster that has now turned on us.

There have been and still are legal ways to monitor any American without a FISA or having the President, Att Gen, or FBI Director getting their hands dirty.

So did 0 have a foreign govt spy on President Elect Trump and then give the info if any to (0) ?

There are semi legal exceptions for spying from physical locations outside of the US.

The precedents were started with/by Harry Truman.

"This has been basically going on since Truman got rid of the OSS and formed the CIA and NSA. Part of their charters was not to spy on or monitor Americans."

So, we monitored Brits, Aussies, Kiwis and Canutes and they monitored our citizens to get around those bans re not monitoring your own citizens. America and the 4 countries mentioned above, formed the 5 Eyes.

So here is how this could have gone down. Obama asks Clapper privately to monitor Trump Tower and Trump. Or Obama asked Lynch to ask Clapper to monitor Trump Tower and Trump.

Then, Clapper could have asked Canada, the UK, Australia or New Zealand to spy on Trump and any American or Americans without ordering it to be done by the NSA or FBI. Leaving Obama able to say, “I didn’t order the spying on Trump Tower, or as Nixon said decades ago, “I am not a crook!”

This has been going on for decades starting with #1 through #3 below:

1. Project 5 eyes

2. Project Echelon

3. Project Prism

4. Muscular the current program run by the Brit’s GCHQ and probably financed by the CIA.

#1 and #2 go back to the early days after President Truman got rid of the OSS and established the CIA and the NSA.

As noted, neither agency, CIA/NSA were supposed to spy or monitor American citizens as per their charters.

With 5 eyes, we would/could spy on the UK/Brits, Australians, Kiwis and Canadians and let the mother countries know when they might have problems. Then, they would monitor American citizens like Trump, his people and you, for us and give the the data on those American Citizens and you

Supposedly the countries mentioned above can’t spy on their own people. Our NSA/CIA/? Could do that for our 5 EYE buddies and report back to the mother country if there was a problem with their citizens or you!

Echelon came about a little later. With the 5 eyes lateral spying agreement, Echelon became solidified and very functional for decades. We monitored their citizens, and they monitored our citizens like candidate Trump his people and you. ,

Prism supposedly replaced 5 eyes and Echelon, but the 5 Eyes/Echelon concept was/is still there.

Muscular is one of the current joint programs run by the Brit’s GCHQ and probably financed by the CIA.

So Obama would not had to ask NSA/FBI to spy on Trump. He could have had Clapper ask his counterpart in the UK or Canada or any of other 5 Eye countries to monitor Trump Towers and listen in to what was said. At this point, it was probably the Brits GCHQ and its MUSCULAR program.

The FBI may have put bugs in or set up electronic interceptions at Trump Towers for their Canadian intel counterparts to monitor all verbal and digital transmission to and from Trump Tower in October of last year until this year up to Trump becoming President. There is minimal need for bugs with today's state of electronic monitoring from afar.

So did GB/GCHQ monitor Trump, his people, and you in Trump Towers, in NYC, and then report back to Obama, NSA, FBI and ?. If so, Obama could deny that he ordered the spying?

Obama is playing a game by saying he didn’t order the FBI?NSA to spy on candidate Trump and his people. Obama probably had Clapper or ? ask his Brit/Canadian counterparts to spy on Trump and his people. Or he had Lynch ask Clapper. Then, Clapper asked Brits/GCHQ or one of other 5 Eye countries to monitor Trump Tower, Trump, his people and you!

Have fun with this data! Don’t try searching for this late at night to avoid getting insomnia. Take a baby aspirin to keep from stroking out.

Remember Clapper is probably somehow involved and is a first class liar.

Lynch may have gotten involved while exchanging pictures of grandkids with Bubba in her plane in Arizona.

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