On Jan. 3, outgoing Attorney General Loretta Lynch secretly signed an order
directing the National Security Agency – America’s 60,000-person-strong domestic
spying apparatus – to make available raw spying data to all other federal intelligence
agencies, which then can pass it on to their counterparts in foreign countries
and in the 50 states upon request. She did so, she claimed, for administrative
convenience. Yet in doing this, she violated basic constitutional principles
that were erected centuries ago to prevent just what she did.
Here is the back story.
In the aftermath of former President Richard Nixon’s abusive utilization of
the FBI and CIA to spy on his domestic political opponents in the 1960s and
’70s – and after Nixon had resigned from office in the wake of all that –
Congress passed the Foreign Intelligence Surveillance Act, which created a secret
court that was charged with being the sole authority in America that can authorize
domestic spying for non-law enforcement purposes.
The standard for a FISA court authorization was that the subject of the spying
needed to be a foreign person in the United States who was an agent of a foreign
power. It could be a foreign janitor in a foreign embassy, a foreign spy masquerading
as a diplomat, even a foreign journalist working for a media outlet owned by
a foreign government.
The American spies needed a search warrant from the FISA court. Contrary to
the Constitution, the search warrant was given based not on probable cause of
crime but rather on probable cause of the status of the person as an agent of
a foreign power. This slight change from “probable cause of crime”
to “probable cause of foreign agency” began the slippery slope that
brought us to Lynch’s terrible order of Jan. 3.
After the Foreign Intelligence Surveillance Act, numerous other statutes were
enacted that made spying easier and that continued to erode the right to be
left alone guaranteed by the Fourth Amendment. The Patriot Act permitted FBI
agents to write their own search warrants for business records (including medical,
legal, postal and banking records), and amendments to FISA itself changed the
wording from probable cause “of foreign agency” to probable cause
of being “a foreign person” to all Americans who may “communicate
with a foreign person.”
As if Americans were children, Congress made those sleight-of-hand changes
with no hoopla and little serious debate. Our very elected representatives –
who took an oath to preserve, protect and defend the Constitution – instead
It gets worse.
The recent USA Freedom Act permits the NSA to ask the FISA court for a search
warrant for any person – named or unnamed – based on the standard of “governmental
need.” One FISA court-issued warrant I saw authorized the surveillance
of all 115 million domestic customers of Verizon. The governmental need standard
is no standard at all, as the government will always claim that what it wants,
All these statutes and unauthorized spying practices have brought us to where
we were on Jan. 2 – namely, with the NSA having a standard operating procedure
of capturing every keystroke on every computer and mobile device, every telephone
conversation on every landline and cellphone, and all domestic electronic traffic
– including medical, legal and banking records – of every person in America
24/7, without knowing of or showing any wrongdoing on the part of those spied
The NSA can use data from your cellphone to learn where you are, and it can
utilize your cellphone as a listening device to hear your in-person conversations,
even if you have turned it off – that is, if you still have one of the older
phones that can be turned off.
Notwithstanding all of the above gross violations of personal liberty and constitutional
norms, the NSA traditionally kept its data – if printed, enough to fill the
Library of Congress every year – to itself. So if an agency such as the FBI
or the DEA or the New Jersey State Police, for example, wanted any of the data
acquired by the NSA for law enforcement purposes, it needed to get a search
warrant from a federal judge based on the constitutional standard of “probable
cause of crime.”
Now, because of the Lynch secret order, revealed by The New York Times late
last week, the NSA may share any of its data with any other intelligence agency
or law enforcement agency that has an intelligence arm based on – you guessed
it – the non-standard of governmental need.
So President Barack Obama, in the death throes of his time in the White House,
has delivered perhaps his harshest blow to constitutional freedom by permitting
his attorney general to circumvent the Fourth Amendment, thereby enabling people
in law enforcement to get whatever they want about whomever they wish without
a showing of probable cause of crime as the Fourth Amendment requires. That
amendment expressly forbids the use of general warrants – search where you
wish and seize what you find – and they had never been a lawful tool of law
enforcement until Lynch’s order.
Down the slope we have come, with the destruction of liberty in the name of
safety by elected and appointed government officials. At a time when the constitutionally
recognized right to privacy was in its infancy, Justice Louis Brandeis warned
all who love freedom about its slow demise. He wrote: “Experience should
teach us to be most on our guard to protect liberty when the Government’s purposes
are beneficent. Men born to freedom are naturally alert to repel invasion of
their liberty by evil-minded rulers. The greatest dangers to liberty lurk in
insidious encroachment by men of zeal, well meaning but without understanding.”
Someday we will learn why Obama did this. I hope that when we do, it is at
a time when we still have personal liberty in a free society.