Spying on the Wrong People: The Hypocrisy of the Nunes Memo & FISA

By Juan Cole | (Informed Comment) | – –

The frenzy over the Nunes memo, likely to be released later today by the Trump administration, contains a profound hypocrisy at its core, one that points to the rot at the core of the American government.

The Republican conspiracy theory promoted by Nunes is that the Federal government over-reached in spying on the Trump campaign.

That’s right, the GOP is complaining about government surveillance. But it isn’t complaining about the principle of the thing (surprise!). It is complaining that its guy got caught up in these surveillance practices.

On January 18, Republican-dominated the Senate passed a law extending National Security Agency and other agencies’ prerogative of warrantless spying on Americans for another six years. The unconstitutional and illegal practices of Federal agencies had been exposed by Ed Snowden, who may as well not have bothered. FISA section 702 lets Federal agents snoop on your Facebook posts even if you marked them as only for friends, and God forbid that you should email a friend in Sweden, since they can read that one too. In fact, since email traffic typically bounces around the world before being delivered, the law lets the government basically read all Americans’ correspondence all the time.

There is no evidence that this vast surveillance apparatus has thwarted any significant terrorist plot, since 320 million Americans are not terrorists. The surveillance is being used to advance the careers of government agents by illegally obtaining information about things like drug use, or it is used for economic espionage. The law turns Federal agents into criminals.

Who voted for warrantless surveillance of Americans? Devin Nunes and his whole committee. Almost the whole of the Republican majority in the House of Representatives and the Senate, with the exception of Libertarians like Rand Paul. Not to mention Democratic stalwarts Diane Feinstein, Mark Warner, and Claire McCaskill.

And Donald J. Trump signed it!

So you know what? If the Republican party thinks warrantless surveillance is constitutional and is a great idea, then they just have to STFU about the Nunes memo, which alleges… warrantless surveillance of Americans in contact with foreigners.

This law is unconstitutional on the face of it, but the Federal government cleverly avoids allowing it to come before a Federal judge by not telling the people whose rights are being violated who they are. Secretly, law enforcement is using the surveillance to bust petty marijuana distributors in Colorado and California and then lying to the judges about the evidence trail. The law is subverting the entire justice system. The GOP desperately wants it. But they don’t want their guys to get caught up in the surveillance.

So now they are squawking. Too bad.

The tendency of Democrats suddenly to lionize former FBI director James Comey because he was fired by Trump, and Comey’s own posturing as a civil libertarian, is part and parcel of the hypocrisy. Comey supports warrantless searches and tried to strong arm Apple into letting every 15 year old hacker in Eastern Europe get at your iPhone just so the FBI could, as well. But at least Comey is consistent.

Securing the Fourth Amendment of the US constitution was one of the reasons for which Americans made their revolution against the British monarchy.

When they defeated the red coats, they put the Fourth Amendment into the Constitution, which says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I wrote a few years ago, after the Snowden revelations,

“The most important 18th-century precedent in English law for our Fourth Amendment is Entick v. Carrington of 1765, in which Lord Halifax, acting for the king, sent agents into the home of John Entick on a fishing expedition for papers and documents that criticized the king. This Revolutionary War site notes:

“During the trial, Entick charged that the entire search and seizure had been unlawfully conducted, and the Court agreed. The Court said that Lord Halifax had no standing to issue the order to search the premises, that probable cause that a crime had been committed had not been demonstrated and that the warrant allowed a general confiscation of anything the officers found, not specifying exactly what they were to look for or could seize. In addition, there were no records kept of what the officers seized.”

In the New World, however, colonial authorities ignored this important case and began issuing what were called “writs of assistance,” a kind of blanket search warrant that allowed the crown’s tax authorities to try to combat smuggling by indiscriminate search and seizure. (We would now call them “National Security Letters.”) Attorney James Otis took the case of 50 merchants who sued the British crown over these overly broad warrantless searches, and his powerful speech condemning these practices was heard by John Adams, who considered it the spark that led to the American Revolution.

George Mason’s Virginia Declaration of Rights of 1776 forbade these writs of assistance. Thomas Jefferson depended heavily on that document when he authored the Declaration of Independence. When he talks about “Life, liberty and the pursuit of happiness,” one of the things he means by liberty is that the government shouldn’t be able to snoop at will through your private letters.

The sentiment against warrantless searches and overly broad writs of assistance was put into the constitution by James Madison, with what became the 4th Amendment.”

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Bonus video:

CNN: “Trump sees Nunes memo as way to discredit Russia investigation”

7 Responses

  1. From a UK perspective, we are all completely bemused by the extraordinary goings on in the American government and this includes news commentators as well as members of parliament. It seemssss to me that there is lying, spying and general debauchery by everyone, including the republicans, democrats, the secret services, the deep state and we must not forget the MSM. A poem from George Orwell’s great book, “1984!” comes to mind and it goes: ” where I sold you and you sold me, under the spreading chestnut tree”! They all seem to be selling each other down the drain. It seems to me that they should ALL stop squabbling like a pack of monkeys fighting over a bag of nuts and pull together to get the US out of the economic doldrums which it is surely mired in.

  2. Trump’s cult members like Sean Hannity and Trump’s Fox and Friends policy directors are gladly joining in the right wing frenzy to paint the FBI as a criminal “Secret Society” so that when the Mueller report is released they can point to, what I suspect will be damning evidence against our former game show host/ oligarch loving president, and claim….”Conspiracy! Fake News! See we told you they hate the president!” It really is evil genius that could only be accomplished with the help of evangelicals and those who pine for a return of white America.

    Unfortunately, W. Bush and Cheney laid the foundation for distrust in our “Slam Dunk” CIA and the bumbling FBI that allowed 9-11 to occur which led to two unnecessary wars and the relinquishing of our privacy.

  3. Kim, Not just the UK, most of what is called the developed world has similar reactions. But one should avoid imagining we observe the US floundering while we are on firm land, there are visible strains everywhere. Americans hold their Constitution to be sacrosanct although increasingly it seems to drift from practical reality towards abstraction. To survive, all nations need to adjust their Constitutions to accommodate changed circumstances. Rome survived as a republic 600 years, passing through monarchy, Decemviri , Tribunes, Consuls, and keeping in hand for dire days the role of Dictator. All surviving nations have passed through similar adjustments whether under pressure from without of erupting within. Look at them, Persia, Greece, China, Germany, France, Spain, you name it. England itself has changed its system over the centuries since Runnymede passing through absolute monarchy, early parliament, Commonwealth, limited monarchy, and so on. Do you think it’s possible what one takes to be the current US malaise is actually a call for the citizens to revisit their Constitution?

  4. No one can say that the Republicans are slow learners. They’ve taken up the Putin Playbook that sunk Hillary and are using it to try to save der Fuhrer. While the Democrats remain comatose in compliance, or worse.

  5. Trump, Nunes, Hannity, Fox and Friends, are trying to sabotage this investigation, with conspiracy theories, and most importantly trying to discredit an American institution, that right now, is led by a Trump appointee (Republican), who was appointed, and approved, by a Special Investigator (Republican). How low will Trump and his puppets go, to attack the FBI, and other Institutions, just to save Trump’s skin? It seems they are willing to bring the entire country, and our system down to do so.

    Sen. McCain is right, they are doing Putin’s dirty work.

  6. I was out of town most of the day , so I’ve only had a chance to see dissections of the memo and not yet read it myself. However, based on sections I have seen quoted, it is a total farce. I suspected as much as it dealt with a FISA warrant on Carter Page that had nothing to do with the Mueller investigation. Nunes and his minions at Fox News have tried to make out that the warrant was somehow biased, ignoring the fact that Page had actually dealt with Russian spies in the past, at least one of whom was arrested and sent to prison. They were heard on tape talking about using Page (no relation). There are so many things wrong with the memo and the whole right wing attack, it will take a long article to go into all of them. Here is just one vignette. The source material, on which the memo is supposedly based, wasn’t even read by Nunes and his staff wrote the memo. Only one Republican representative, Trey Gowdy, actually read the source material. Gowdy is the committee chairman who led the interminable Benghazi investigation, showing himself to be very partisan. And yet, the Nunes memo was apparently too much for him. The day the committee voted to release the memo, Gowdy announced his retirement (he’s only in his mid-50’s and comes from a safe district) and today he apparently tweeted that he supported the FBI and its agents and completely backed the Mueller investigation. I think that is rather telling when your own guy sabotages your effort.

  7. Professor, the memo itself notes that the Page surveillance order was issued on the basis of probable cause. There may have been lots of unconstitutional surveillance going on under FISA since it was supposed to stop in 2006 for all I know, but the surveillance of Page and others in this investigation seems entirely justified.

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