Both “sides” of the uniparty world do well to consider Judge Andrew Napolitano’s assessment of the greater tragedy of the situation (beyond Trump, FBI loyalty, or “Russia”). The players, knowing and not caring, will not. The supporters, largely neither knowing nor caring, wouldn’t even know how to consider. But they should. It has happened.
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.
The surveillance state is now here.
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.
Predictable misuse of a terrible standard attached to an unlawful act which replaced a similar illegal procedure. Banana. Republic.
And this incident involves the targeting of the President, both as a candidate and as actual, elected office holder. Take away all political affiliations (apologies to the binary thinkers) and the magnitude, the implication is staggering. If the President isn’t safe from baseless investigative abuse, then who is? No one.
Modern technology aside, this is how lesser nations have traditionally operated, everywhere and throughout history – the rule of men rather than the rule of law. Lights out in the shining city.
And where might all of this go next? Since we’re playing loose with the law, and what constitutes the law has changed so much so recently, just how extreme could the response to these particular FISA violations become?
To use Napolitano’s example: if you, an average nobody citizen, talks to a foreign book seller, are surveilled as a result, and find yourself afoul of the “authorities,” then you just take whatever treatment they see fit to dole out. End of story. You have no (respected) rights and no power. Not so for the subject of the Steele dossier.
Donald J. Trump has extreme power. I noted in a recent video that Trump could, if he wanted, “legally” – as defined by two previous Presidents (several more really), Congress, and the Supreme Court – simply declare all of his enemies and detractors enemy combatants. Indefinite detention. GITMO. Drone strikes.
So far it appears the Donald, for all his pomp and Tweeting, has a remarkably cool head. For that we should be grateful. But will it last? What about the next Chief Executive? Or the next one?
The FISA-FBI-Russiagate episode illustrates the utter failure of the federal government. At this point it’s safe to dispense with the pretense of the old Constitutional Republic.
That’s about all that’s safe.