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A federal judge sentenced a former Starr County gangster to 10 years in prison Monday.

U.S. District Judge John D. Rainey sentenced Hector Pelon Guerra, 41, of La Rosita a former ranking member of the Texas Chicano Brotherhood in Starr County during a hearing Monday afternoon in Victoria.

Guerra pleaded guilty to conspiracy to possess with intent to distribute more than 2,200 pounds of marijuana. As part of the plea agreement, prosecutors dropped a gun charge against him and recommended 10 years in prison.

I do accept my responsibility, your honor, Guerra said.

The case brought together Homeland Security Investigations, which is part of U.S. Immigration and Customs Enforcement; the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Criminal Investigations Division of the Texas Department of Public Safety.

They identified more than 70 people affiliated with the Texas Chicano Brotherhood.

The McAllen investigation revealed that Ricardo GARCIA, Rafael DIAZ, and Hector GUERRA were ranking members within the Starr County faction of the TxCB organization, according to a summary of the case against Guerra filed by federal prosecutors. These ranking members thus became targets of an electronic surveillance (wiretap) investigation.

The Gulf Cartel paid members of the Texas Chicano Brotherhood to transport marijuana throughout the Rio Grande Valley, according to federal court records. The gang also robbed stash houses and sold the stolen marijuana to other smugglers.

Guerra and other members of the gang moved about 330 pounds of marijuana a week, according to information provided to the government by an informant. The gang also participated in kidnappings and murders.

After a grand jury indicted Guerra, agents tracked him to a trailer home in La Rosita. A regional SWAT team from San Juan ripped off the door with a battering ram, set off two stun grenades and arrested him on Nov. 21, 2018.

And that is how the SWAT team in San Juan knocks on the door, said Bill Weir, the host of a short-lived television show called Border Live, which filmed the arrest. Weir said agents had both a federal arrest warrant and a search warrant.

The search warrant had been written by Arturo David Ibarra Jr., an investigator with the Starr County District Attorneys Office.

Ibarra told a judge that investigators believed Guerra was an enforcer in the Texas Chicano Brotherhood.

In early 2018 the suspected party was arrested for the possession of marihuana. During the scope of that investigation intelligence revealed that the suspected party was smuggling narcotics, specifically marihuana, in large quantities and has direct contact to the Gulf Cartel, read the affidavit, according to federal court records. It is my belief that the suspected party has evidence in his possession which can be beneficial to the investigation into the Texas Chicano Brotherhood gang.

Ibarra requested a no-knock warrant based on information provided by an informant.

During the investigation Investigator Ibarra learned that the suspected party attended a Texas Chicano Brotherhood meeting on November 18, 2018 and the suspected party was in the possession of a AK-47 and a handgun, read the affidavit, according to federal court records.

When agents searched the trailer, they didnt find an AK-47. They did, however, find a pistol hidden in an air-conditioning vent.

Attorney Micah Wayne Hatley of Victoria, who represented Guerra, challenged the search warrant.

Information about a months-old marijuana bust simply wasnt enough to justify a search, Hatley argued in a motion to suppress. The warrant also failed to include any information that linked the marijuana bust to Guerras house.

Statements that Guerra made after his arrest should be suppressed too, Hatley argued, because a federal agent questioned Guerra after he invoked his right to remain silent.

Rainey, the federal judge, agreed.

Hector Guerra, 41, of La Rosita was a ranking member of the Texas Chicano Brotherhood. (Photo courtesy of the Starr County Sheriffs Office.)

The Court finds that the search warrant was not supported by probable cause and that the good-faith exception to the exclusionary rule does not apply, Rainey wrote in an opinion filed in February. The search of Defendants home after the initial protective sweep incident to his arrest therefore violated his Fourth Amendment rights.

Rainey also suppressed all statements Guerra made to agents.

There is no question Defendant explicitly invoked his right to remain silent. Under Miranda and its progeny, the agents should have immediately terminated the interrogation at that point, Rainey wrote. Instead of ensuring that Defendants right to remain silent was scrupulously honored, they continued, in the Governments own words, trying to encourage him to cooperate with the government.

The Texas Chicano Brotherhood green-lighted Guerra after his arrest, according to a transcript of a court hearing in August 2020. Concerned about his safety, the U.S. Marshals Service kept Guerra in solitary confinement and transferred him at least three times.

Guerra agreed to plead guilty in May.

We made the deal for 120 months, your honor, said Assistant U.S. Attorney Patricia Hubert Booth, who prosecuted the case.

Guerra said he wanted to take classes in prison and become a different person.

The first few times you came into this court, that wasnt your attitude, Rainey said.

Guerra agreed.

I know, Guerra said. And I apologize.

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Texas Chicano Brotherhood 'enforcer' sentenced to 10 years in prison - Progresstimes

ANALYSIS/OPINION:

Sadly, we are approaching a time in America when our elected public officials will assault the liberties we have hired them to protect. Whatever the cause, the government will soon blame its failures to contain a virus on a small portion of the population and then impose restrictions on the inalienable rights of all of us.

We cannot permit this to happen again.

During the Civil War, when President Abraham Lincoln thought it expedient to silence those in the northern states who challenged his wartime decisions by incarcerating them in military prisons, he was rebuked afterward by a unanimous Supreme Court. The essence of the rebuke was that no matter the state of difficulties whether war or pestilence the Constitution protects our natural rights, and its provisions are to be upheld when they pinch as well as when they comfort, in good times and in bad.

Whether COVID-19 is coming back or not, our central planners have panicked. We do not have a free market in the U.S. in the delivery of health care; rather, we have thousands of pages of statutes, regulations, and controls at the federal, state, and local levels.

Those controls were revealed as manifestly deficient the last time around. The feds were so protective of their control of health care an area of governance that the Supreme Court has ruled is nowhere delegated to them in the Constitution and, but for their power to tax those who defy them, is nonexistent that they insisted that only the Centers for Disease Control and Prevention in Atlanta could be trusted to test for the virus.

It took weeks of begging by governors and mayors, and health care professionals for the feds to relent. Of course, once they acknowledged that labs throughout the country were as competent as theirs, they realized that their incompetence had deprived all physicians as well as most private sector and state government-owned labs of the test kits themselves.

We all know how central economic planning diminishes freedom, produces scarcity, and adds to the cost of products. Now we know that central micromanagement of health care kills people.

But these mayors and governors were not to be outdone by the feds in their totalitarian impulses. Many of them issued decrees that are as profoundly unconstitutional as Lincolns efforts to silence dissent.

They ordered the closing of most businesses and nearly all retail establishments. They acted as if they, and not we, owned our faces. They shuttered religious institutions. It took a year for the courts to interfere partially with this madness.

The fulfillment of these totalitarian impulses put millions out of work, closed and destroyed thousands of businesses, and impaired the fundamental rights of tens of millions all in violation of numerous sections of the Constitution that the totalitarians swore to uphold.

And now they are threatening to do this again.

The Contracts Clause of the Constitution prohibits the states from interfering with lawful contracts, such as leases and employment agreements. The Due Process Clause of the 14th Amendment prohibits the states from interfering with life, liberty, or property without a trial at which the state must prove fault. The Takings Clause of the Fifth Amendment requires just compensation when the state meaningfully interferes with an owners chosen lawful use of his property.

Taken together, these clauses reveal significant protections of private property in the Constitution. Add to this the threat of punishment that accompanied these decrees and the fact that they were executive decrees, not legislation, and one can see the paramount rejection of basic democratic and constitutional principles in the minds and words and deeds of those who have perpetrated them.

Add to all this the protection in the First Amendment of the rights to worship and associate, and elsewhere the judicially recognized right to travel, and it is clear that these nanny state rules were profoundly unconstitutional, indisputably unlawful, and utterly unworthy of respect or compliance.

Why is this happening again?

Throughout history, free people have been willing to accept the devils bargain of trading liberty for safety when they are fearful. We supinely accept the shallow and hollow offers of government that somehow less liberty equals more safety. It doesnt. This is the governments dream dominance without resistance.

This happened here with the Alien and Sedition Acts in the 1790s when the Federalists feared a second revolution and punished speech critical of them, during the Civil War when Lincoln feared dissent and Congress feared defeat. They locked up innocents during World War I when President Woodrow Wilson punished the speech he hated and feared, and during the Great Depression when President Franklin D. Roosevelt feared economic calamity and seized property without compensation. And, after 9/11, fearing another attack, Congress secretly crafted the Patriot Acts circumvention of the Fourth Amendment and authorized the creation of the total surveillance state.

Of course, just one year ago, we free people were all in lockdown a word used to describe confining prisoners to their cells.

This sordid history came about when the public was fearful of the unknown and trustful of the governments bargain. But the liberty that was sacrificed for the safety that was promised is being taken away again.

Liberty is natural and personal. You can sacrifice yours, but you cannot sacrifice mine. Thus, personal liberty the Declaration of Independence calls our rights inalienable, and the Ninth Amendment reflects freedoms nature as limitless is insulated from totalitarian and even majoritarian interference.

Today, the fear of contagion again gives government cover for its assaults on freedom and poses a question the government does not want to answer: If liberty can be taken away in times of crisis, is it really liberty; or is it just a license, via a temporary government permission slip, subject to the whims of the politicians in power?

We cannot permit this to happen again.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.

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Freedom in the time of COVID-19 madness - Washington Times

WASHINGTON For months,the Supreme Court appeared to rise above partisan strife becoming a place where rancor could be quieted by compromise. But as is often the case at the nation's highest court, the justices saved their fireworks for the end.

With a string of unanimous or near-unanimous decisions, often decided on narrow grounds, the court's nine-month term that wrapped up last week initially upended expectations about how its new 6-3 conservative majority would handle pressing disputes about religious freedom,the Fourth Amendment and the Affordable Care Act.

Then, in its final two opinions, the court's six conservatives held together against its three liberals to impose curbs on the 1965 Voting Rights Act when voting access has become a political flashpointand opened a debate about whether campaign disclosure requirementscould be subjected tolegal challenges.

"The court managed to rise above the partisan divide this term until the last day," tweeted David Cole, national legal director at the American Civil Liberties Union.

As the U.S. Capitol remained surrounded by fences erected in response to the riot in January, the Supreme Court appeared to be going out of its way to avoid the kind of conservative-liberal, 6-3 splits liberals had warned about for monthsin fundraising emails. Forty-three percent ofthe term's cases were decided unanimously, according to statistics compiled by the SCOTUSblog website lower than the average over the past decade but higher than the past three years.

Before the rulings onvoting rights and charitable donordisclosureThursday, Chief Justice John Roberts "seems to have decided to try to keep the temperature down,"said Georgetown University law professor Paul Smith. "There does seem to be a divergence within the conservative six about how aggressively to rule on a number of issues."

Three liberals and four conservative justicesjoined together to thwart the latest challenge to the Affordable Care Act,deciding that the plaintiffs did not have standing to sue because they were not harmed by the law's requirements.A unanimous court allowed a Catholic foster care agency in Philadelphia to decline to screen same-sex foster parents on religious grounds.

Third time: Supreme Court turns back Obamacare challenge

Looking ahead: Supreme Court foster care ruling likely to prompt more tests

Sports: Supreme Court rules against NCAA in antitrust case in unanimous decision

Other opinionsdefiedconventional wisdom about the court as conservatives and liberals teamed up in unusual splits. Associate Justice Amy ConeyBarrett wrote the majority opinion absolving a police officer from violating a 1986 anti-hacking law when he ran a license plate in exchange for cash an outcome that meant Americans wouldnt face federal criminal charges for fudging their profile on dating apps such as Tinder.

Barrett was joined by thethree liberals and two conservatives, Associate Justices Neil Gorsuch and Brett Kavanaugh.

The court reached many of its larger-than-expected majorities by crafting narrower-than-expected rulings at least on first blush.In the Philadelphia foster care decision, the court declined to give what many conservatives had sought: overturninga 1990 precedent that controls analysis ofmany religious freedom claims.

In a case involving a Pennsylvania high school cheerleader who sued over her punishment for a vulgar social media post, an 8-1 majority ruled that her school violated her First Amendment rights. But they punted on a much broader question about when and how far schools may go generally to regulate a students' off-campus speech.

That slow-go approachmay have been a result of Roberts' influence, Smith speculated, and a "desire not to have the court suddenly and immediately appear extreme" so soon after Barretts rapidconfirmation beforelast fall's election.

The dynamic changed last week when Associate Justice Samuel Alito, writing for a 6-3 majority, upheld an Arizona law that prohibited the third-party collection of mailed ballots, a practice critics call "ballot harvesting." Writing a dissent for the courts liberals, Associate Justice Elena Kagan called the outcome "tragic" and warned that it "lessens" the Voting Rights Act.

An amendment to the act approved by Congress and signed by President Ronald Reagan in 1982 allowed groups to challenge state election laws if they affect minority voters more than non-minorities. In Arizona, that impact was small too small, Alito wrote, to outweigh the states interest in preventing fraud at the polls. The Voting Rights Act provision at issue still stands, but the courts decision narrowed the circumstances under which voting rights groups may use it to sue.

Ballots: Supreme Court upholds Arizona ban on ballot collection

Donors: Supreme Court rules for charities in challenge to donor disclosure

Alitos opinion thrust the court into a tense national debate over the issue of voting rights. After baseless claims that President Donald Trump lost last years election because of fraud, conservative states are tightening their voting laws, a shift that critics said is designed to suppress turnout among minorities who tend to vote for Democrats.

Earlier: Dissent by Justice Thomas in election case draws fire for revisiting baseless Trump fraud claims

In another opinion with potentially far-reaching implications, the courts six conservatives invalidated a California requirement that charities disclose their largest donors to state regulators. Though the circumstances are limited, the decision appeared to invite challenges to other disclosure requirements, including for political campaigns.

"This term was remarkably devoid of the sort of liberal activism that has characterized many recent terms," said Carrie Severino,president of the conservative Judicial Crisis Network. The court's rulings in the voting rights and disclosure cases, she said, "were capstones to a term that was characterized by adherence to the law and Constitution, thanks in part to the addition of Justice Barrett."

When Barrett joined the court in October after thedeath of Associate Justice Ruth Bader Ginsburg, many Democrats predicted she would drive the court to the right. But the formerappeals court judge and Notre Dame Law School professor's influence has so far proved more nuanced than some of those forecasts.

Barrett'sarrival changed the course of a series of emergency cases in which churches and synagogues challenged government COVID-19 restrictions, arguing that they violated the First Amendment by limiting the size of in-persongatheringspermitted to worship. When Ginsburg was on the court, those kind of decisions tended to side with public health officials. By the fall, they went instead for preachers and rabbis.

In other areas, Barrett joined Roberts and Kavanaugh inan alliance with liberals, drawing dissentfrom more conservative justices. In the Philadelphia foster care case, she urged a more middle-ground approach than Alito, Gorsuch and Associate Justice Clarence Thomas.

"She, too, seems to be trying avoid appearing aggressive and ultra-conservative," Smith said. "But, again, that may just be temporary."

Barrett, Kavanaugh and Roberts were the three justices in the majority the most during the term, according to the SCOTUSblog statistics. Barrett sided with Roberts in 76% of the term's decisions, according to the website. By comparison, she sided with liberal Associate Justice Sonia Sotomayor less than half the time.

Despite predictions that the new conservative super majority would undermine Roberts' power on the court,his influence throughout the term was clear.

"The chief justice remains successful atpushing for broaderunanimity and narrower opinions than people expect, as Fulton and the health care case show," saidJonathan Adler,a professor at Case Western Reserve School of Law.

Some have questioned how narrow the decisions have actually been.

In the Philadelphia case, the court declined to overturn its 1990 decision in Employment Division v.Smith, but itsostensibly narrow ruling left a lot of room for lawsuits that could underminethatprecedent in the long run.

Aziz Huq, a University of Chicago law professor, said that before the two big rulings last week, the term could be summed up as a period of consolidation and seed sowing, rather than a period of dramatic change. Instead of viewing the Philadelphia case as limited, Huq said he sees it as potentially a quite fruitful victory for religious liberty.

The court concluded that whenever there is a secular exception to a nondiscrimination law even if that exception isnt exercised it has to beanalyzedwith the highest level of constitutionalscrutiny. That could have huge implications for issues beyond the conflicts that arise between religious freedomand gay rights.

While it's true that nondiscrimination laws that protect LGBTQ individuals often don't have a discretionary element in them, thats just not true for many other laws, Huq said.

More: Supreme Court declines to hear Virginia school board's transgender bathroom case

In another example, the justices invalidated a California law that permitted labor unions limited time to organize workers on private farms. Roberts, leading the courts conservatives, said the law amounted to a taking that violated the Fifth Amendments prohibition on the government seizing property "without just compensation."

Writing for a 6-3 majority, Roberts insisted the opinion wouldnt have broader implications such as for government inspections at restaurants or power plants.Huq and others are skepticalRoberts' assurances will be the final word. They predict challenges will question whether similar situations amount to takings.

"The court has a section of the opinion where it says, Don't worry, this is not a slippery slope, and the world's not coming to an end, Huq said. It says, Heres all this stuff that's not covered, and you read it and think, but why?

Speculation about Associate Justice Stephen Breyer's retirement hung over the final weeks of the termas liberal groups ramped uppressure on the 82-year-old to step down so President Joe Biden canreplace him.

Senate Democrats have a tenuous majority in the Senate, which may prove hard to keep when next year's midterms roll around.

The final day of the term, when justicessometimes make their retirement plans known, came and went Thursday with no definitive word from the court. Breyer could announce his retirement whenever he pleases. Or he could decide to stay on.

'Apex of his career': Breyer exertshis influence despite retirement calls

As the most senior justice of the court's liberal wing,Breyer took the lead on some notable opinions this year. Breyer wrote for the majority turning away the latest challenge to the Affordable Care Act.Days later, he wrote the majority opinion siding with the cheerleader over her school in the First Amendment case.

Artemus Ward, a political scientist at Northern Illinois University, noted that Breyer appears to be at the apex of his influence and power. Maybe, Wardspeculated, Breyer is just not ready to retire.

SCOTUS upholds Affordable Care Act, rules against NCAA

The Supreme Court ruled on some big topics in 2021, including Obamacare, NCAA antitrust cases and religious adoption agencies denying LGBTQ parents.

Staff video, USA TODAY

When the court reconvenes in October, its docket hassome potential blockbuster cases.

The justices agreedto hear a challenge to New York'sgun licensing requirements that could expandprotections for carryingconcealedweapons in public, putting a major Second Amendment disputein front of the justices.

In May, the court announced it would take up a lawsuit againstMississippi's ban onmost abortions after 15 weeks of pregnancy,giving the court's conservative majority the chance to consider a direct test of the landmark Roe v. Wade decision.

And the high court decided Friday to hear a case from parents who want to use a state tuition program in Maine to pay for religious schools, the latest to question the extent to which a governmentmay impose restrictions that may conflict withreligious freedom.

Those polarizing issues, which will be decided months before the2022 midterm election, will probably offer far more insight into Barrett's influenceand the direction in which the court's bolstered conservative majority intends to go.

"If we ever start seeing split rulings from this court that definitively affirm the right to abortion, then it might be time to consider whether there is a moderate wing of this six-justice conservative majority. We are definitely not there," said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.

"Thereal test," she said, "will likely come next term."

More:
Steady term of the Supreme Court ends with politically fraught cases that reveal divisions - USA TODAY

Last week, a major federal court ruling on privacy rights highlighted the flawed, police-centric way that we typically talk about public safety. In a divided decision, the Fourth Circuit Court of Appeals barred Baltimore police from using a new aerial surveillance program to indiscriminately target and track peoples movements. Analyzing data collected through the so-called spy plane program, the court said, counts as a search under the Fourth Amendment, and therefore requires police to obtain a warrant, just as when searching a home. Its a cutting-edge decision that comes as courts increasingly grapple with how the Fourth Amendments protections against police intrusions apply to new surveillance technology.

But the case is also important for the debate it sparked among the courts judges. In dissent, Judge J. Harvey Wilkinson III, a Reagan appointee, said that restricting police surveillance will tie the citys hands against a serious public safety crisis. He accused the majority of ignoring Baltimores high murder rate and said the ruling leaves only hopelessness for the good people of Baltimore, especially our dispossessed communities where rates of gun violence are highest.

Judge Roger Gregory, the first Black judge to ever serve on the Fourth Circuit, was having none of it. In response, he explained how this critique depends upon a certain premise: Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing. Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons.

The dissents rhetoric matches that of police chiefs clamoring for bigger budgets, particularly amid a one-year national jump in shootings. But the same assumptions are standard fare in reporting on crime and politics. Last week, for example, the New York Times equated calls for funding the police with treating public safety as a central political concern and adopting themes of public safety. The framing both reduces the concept of safety to narrow criminogenic terms (safety depends entirely on crime rates) and elevates punitive responses to crime and violence (more police, more arrests, and more incarceration) over policies that would invest in communities and promote overall health.

In his concurrence, Judge Gregory emphasized that such a blinkered view misunderstands the structural causes of violence and the futility of policing in addressing them. I am skeptical that [the dissents] logic genuinely respects and represents the humanity, dignity, and lived experience of those the dissent ventures to speak for, he wrote. Segregation effectively plundered Baltimores Black neighborhoodstransferring wealth, public resources, and investment to their white counterpartsand the consequences persist today. . . . So it is no coincidence that gun violence mostly occurs in the portions of the city that never recovered from state-sanctioned expropriation. Absent reinvestment, cycles of poverty and crime have proliferated.

Rather than reinvesting in dispossessed communities, Gregory wrote, the city over-polices them: Baltimore spends more on policing, per capita, than virtually any other comparable city in America, and in 2017, for example, a greater proportion of its general operating fund spending was allocated to policing than to education, transportation, and housing combined.

Gregorys opinion aligns with public health experts who have been calling for a more accurate and equitable conception of public safety, one that includes overall health and well-being and considers the damage that our systems of punishment inflict. Last month, anthropologist and physician Eric Reinhart argued in Health Affairs that redefining public safety to account for the harms of policing and incarceration rather than continuing to cede this influential discourse to reductive criminological terms is key for ensuring health, security, equality, and positive freedom for all U.S. residents.

As law professor John Pfaff wrote in The New Republic last week, our criminal legal system produces tremendous harm and immiseration, even death, not just for [incarcerated people] but for their families and communities. In a damning indictment of our fundamental indifference to the lives of the millions who come in contact with this system, we have no idea what the criminal legal systems actual humanitarian costs are, but they are surely staggering.

Even with incomplete information, we know that police killings are a leading cause of death for young Black men, and that police violence sends tens of thousands of people to the emergency room every year. We also know, as Reinhart writes, that jails and prisons inflict increased rates of chronic diseases that impose long-term medical needs and cost and reduce life expectancy. Even pretrial detention without a conviction, enforces persistent economic hardships and drives high rates of unemployment, homelessness, and food insecurity.

Beyond that, a growing body of researchwhat Reinhart calls carceral-community epidemiologyshows that incarceration spreads disease and increases mortality rates in surrounding communities, that our world-leading proclivity for incarceration, while disproportionately harmful to nonwhite people and dispossessed communities, is killing us all. Given their often poor conditions and porous nature, with high turnover and the constant churn of staff and visitors, jails and prisons are not like Vegas: What happens there does not stay there. Carceral institutions worldwide have long functioned as disease multipliers and epidemiological pumps for surrounding communities in relation to HIV, tuberculosis, hepatitis C, influenza, and other infectious diseases, Reinhart wrote.

This reality has been of acute importance throughout the pandemic. In May, Reinhart co-authored a study concluding that cycling individuals through Cook County Jail in March 2020 alone accounted for 13 percent of all COVID-19 cases and 21 percent of racial COVID-19 disparities in Chicago as of early August. Their analysis also showed that jail cycling is the strongest predictor of COVID-19 rates, considerably exceeding poverty, race, and population density.

Other research shows that sending more people to county jails leads to higher rates of premature community death. In February, a retrospective, longitudinal study in The Lancet examined cause-specific mortality at the county level in the U.S. over a 30-year period. It found a short-term association between county jail incarceration and mortality, with mortality due to infectious disease, chronic lower respiratory disease, substance use, and suicide as the strongest drivers. The study put the problem explicitly in public health terms, noting the risks of community-level exposure to high incarceration rates, as though the county jail was polluted water or a toxic waste site.

One of the studys authors, Sandhya Kajeepeta, a doctoral student in the Department of Epidemiology at Columbia University, told me that research framing public safety more broadly to include public health and long-term well-being really challenges our reliance on jails and prisons to keep people safe.

For Reinhart, the effort to reclaim and redefine the influential rhetoric of public safety must make clear that collective safety is best improved not by policing and prisons but rather by building robust public systems of carethat is, of economic security, environmental protections, labor rights, and housing.

Thats also the view of Leaders of a Beautiful Struggle, the grassroots advocacy organization that challenged the Baltimore surveillance program. Lawrence Grandpre, the groups director of research, wrote that their opposition to more surveillance was neither anti-police, nor born of indifference to gun violence. Instead, he wrote, we believe that safety is not simply the absence of violence, but the creation of conditions for human flourishing. Thus, we refuse the false . . . choice between community instability created by violent crime, with the community instability caused by mass incarceration, unaccountable policing, and the slow starving of our community institutions to feed a [half] billion-dollar police budget deemed to be the only investment our community needs.

Policing Is Not Public Safety

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Policing Is Not 'Public Safety' - The Appeal

Earlier this month, Adam Klein, the outgoing chair of the Privacy and Civil Liberties Oversight Board, took the unusual step of issuing a unilateral Chairmans White Paper on oversight of the Foreign Intelligence Surveillance Act, based on PCLOBs review of 19 FISA applications for electronic surveillance of U.S. persons in counterterrorism investigations. This is in itself notable, given how tightly restricted access to the applications underlying FISA surveillance has historically been. Until 2018, when a redacted version of the applications to monitor former Trump advisor Carter Page was declassified, the general public had never seen one. When an unprecedented deep-dive review of the Page applications by the Justice Departments Inspector General uncovered serious deficiencies in that process, this fact took on sudden salience: Nobody could be certain whether the problems were sui generis of a larger pattern of errors and omissions. Predictably, alas, Kleins discussion of the substantive contents of the applications PCLOB reviewed is largely redacted, but the report does offer some helpful procedural analysis and some welcome, but ultimately rather conservative, proposals for reform.

The Inspector Generals report on the Page FISA process had found fault with the Justice Departments vaunted Woods Procedures, designed to ensure that each factual claim in an application submitted to the Foreign Intelligence Surveillance Court has documentary support in the FBIs case file. The IG found not only mismatches between the applications and case file, or claims without documentary support butfar more troublingmaterial omissions of facts that weighed against the FBIs assessment that Page had acted as an agent of a foreign power. The most egregious of these occurred in the later renewal applications. Having satisfied the FISC that it had met its probable cause burden on this question in the initial application, the FBI seems to have shown little interest in revisiting whether that assessment remained tenable on the totality of the evidence as new information came in that contradicted or complicated its earlier understanding.

In response, as Klein notes, the Justice Department in mid-2020 began supplementing its accuracy reviews of a sample of applications with completeness reviewsof which it had completed 95 as of March 2021. While this represents only a fraction of the hundreds or (more often) thousands of FISA orders sought each year, it is nevertheless a nontrivial sample, and Klein observes that both the accuracy and completeness reviews absorb significant resources and person-hours. He reasonably suggests prioritizing for review applications targeting U.S. persons, and above those sought in cases designated as Sensitive Investigative Matters because they raise heightened civil liberties or separation of powers concernsbecause, for instance, they involve political actors, religious organizations, or the press. While this is hard to dispute as a general heuristic for allocating scarce resources, it does merit an asterisk: While much of the public discourse around FISA treats collection on U.S. person targets as the sole subject of concern, non-U.S. person FISA targets often communicate with U.S. persons, and the extent to which those communications have broader implications for domestic liberties or politics may not be readily apparent in advance of collection. One reason electronic surveillance is such a singularly intrusive tactic is that it inherently involves searching the communications of hundreds or thousands of (ex ante unknown) parties other than the specific target. Even if we are exclusively concerned about the privacy rights of U.S. citizens and permanent residentsitself a mistake if we understand privacy as a human rightthe status of the target is at best imperfectly correlated with those equities.

Klein also notes a gulf between the Inspector Generals assessment of the overall accuracy of FISA applications and that of the Justice Department. An audit by the IGs officeissued in March 2020 found some form of error in every application it reviewedand in some cases dozensconcluding that this deficiency in the FBIs efforts to support the factual statements in FISA applications through its Woods Procedures undermines the FBIs ability to achieve its scrupulously accurate standard for FISA applications. DOJ, however, countered in a filing with the FISA Court that many of these were trivial or even merely typographical errors, and that of the tiny number of material errors they were prepared to concede, none undermined the overall probable cause showing. Klein proposes, again sensibly, a schema for categorizing errors identified during review, ranging from the most seriousmisrepresentations or omissions of material information known to the government at the time the application was preparedto the presumably less urgent spelling errors and typos.

Most importantly, in my view, Klein urges reevaluation of the process by which FISA renewal applications are prepared. The most serious defects identified by the IG in the Carter Page applications came in the later renewals, which omitted numerous salient facts that weakened the FBIs case for classifying Page as a foreign agent. The Justice Department has itself acknowledged that the final two FISA applications targeting Page therefore lacked adequate predication as a result. This failure stemmed in part from DOJs process for reviewing renewal applications, which highlights the new information added in each iteration. While in principle renewals applications are supposed to be reviewed in their totality, in practice this appears to have led to minimal scrutiny of claims and conclusions already accepted by the FISC. Why waste time on what has already been thoroughly vetted? As Klein puts it: The structure of renewal applications may influence the cognitive process agents and lawyers undertake in preparing them. That may encourage the drafters to rest on the facts in the original application, rather than reconsidering the probable cause assessment in light of new developments.

We can add to Kleins analysis that the tendency toward confirmation bias in FISA renewals is likely to be exacerbated by an important distinction between the evidentiary standards applicable to foreign intelligence surveillance, as compared with the so-called Title III wiretaps employed in ordinary criminal investigations.When a Title III wiretap is sought, the purpose of surveillance and the showing required before an order can issuewhat we might call the success condition and the threshold conditionare reasonably tightly aligned. Barring unusual edge cases, Title III wiretaps that achieve their purpose (obtaining evidence of a crime for use in a subsequent prosecution) simultaneously reinforce their own predicates and provide additional grounds for reauthorization (probable cause to believe that surveillance will yield evidence of a crime that has been, is being, or will be committed). A Title III order that meets its success condition, in other words, will by definition satisfy the threshold condition for its own reauthorization, assuming additional evidence is deemed necessary before commencing prosecution.

In the case of FISA, however, the success condition and the threshold condition are not so tightly connected. The pool of U.S. persons whose communications might reasonably be deemed to contain foreign intelligence information under one of the five definitions delineated in 50 U.S.C. 1801(e) is almost certainly substantially larger than than the pool of U.S. persons knowingly engaged in clandestine intelligence activities at the behest of a foreign power. A communication in which an American is probed for information by members of a foreign clandestine service, for example, could very well provide information that relates to or is necessary to protect against clandestine intelligence activities by an intelligence service or network, or to the conduct of U.S. foreign affairs regardless of whether the American is a knowing agent or an unwitting asset. The Inspector Generals findings in the Page case suggest that, having once persuaded the FISC of a targets foreign agent status,the focus in renewals shifts to the question of productiveness: whether surveillance has generated, and continued surveillance is likely to generate, foreign intelligence information. But this is, of course, a different question from that of whether the initial assessment that the target is a foreign agent has been validated.

This difference may contribute to inadequate scrutiny of renewal applications by investigators and attorneys accustomed to the criminal investigative process. If a Title III wiretap is productiveyielding evidence of a crimethat productiveness inherently vindicates the initial showing that there was probable cause to believe such evidence would be obtained. Failure to adequately appreciate that the same tight nexus between threshold and success conditions need not exist in FISA surveillance may be one cause of insufficient attentiveness to new information undermining the agent of a foreign power determination.

While Kleins proposals are fine as far as they go, they represent relatively modest procedural tweaks that do not, in my view, get at the root cause of dysfunction in the FISA process: the fact thatFISA applications are not tested in an adversarial process, and FISA surveillance is classified. FISA interceptscan be used as evidence in courtsubject to the Classified Information Procedures Act, which seeks to balance defendants due process rights against national security interestsbut this is not their main purpose, and in practice it is vanishingly rare. The overwhelming majority of FISA targets never learn that they, or the people they communicate with, have been wiretapped. This eliminates a critical mechanism of accountability: The target, after all, is far better situated than any DOJ reviewer to identify falsehoods or missing context. The elaborate multilayered system of review FISA applications undergo is an imperfect attempt to compensate for the absence of this mechanismand indeed, it seems plausible that accuracy gains from requiring multiple reviewers are offset by the diffusion of responsibility this entails. If one reviewer misses a problem, many other eyes will have an opportunity to catch it, and if everyone misses it, then (excepting really egregious misconduct) its hard to fault anyone in particular.

The best remedy here may also be the most straightforward: End the presumption that FISA surveillance, at least in the case of U.S. person targets, will remain permanently covert.

Permanent secrecy has been baked into FISA since its inception, and the special exigencies of foreign intelligence collection surely justify a greater degree of secrecy than we countenance in criminal investigations, where targets typically must be notified within 90 days of the termination of surveillance. But even giving due weight to those considerations, a categorical rule of permanent secrecy in every FISA case seems impossible to justify.

Ordinarily, notice to the target of a search is constitutionally requiredan element of the Fourth Amendment reasonableness of a searcheven though it may be delayed whenadvance notice would frustrate the purpose of the search. In the seminal caseBerger v. New York, the Supreme Court invalidated a New York State wiretapping statute in part because it failed to adequately provide for notice:

Finally, the statutes procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statutes blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.

InUnited States v. Freitas, the Ninth Circuit noted that, followingBerger, the absence of any notice requirement in [a] warrant casts strong doubt on its constitutional adequacy. The warrant at issue in that case was found constitutionally defective in failing to provide explicitly for notice within a reasonable, but short, time subsequent to the surreptitious entry on the grounds that surreptitious searches and seizures of intangibles strike at the very heart of the interests protected by the Fourth Amendment.

There is ample reason to suppose that exigency would, in the intelligence context, often justify significantly longer delays than Title III permits. Here, after all, the government is concerned not only with tipping off an individual target, but with exposing to foreign adversaries the contours of intelligence collection efforts that may span years. FISA, however, does away with the notice requirement categorically, without any need for a particularized showing that notice of a wiretap would incur harms. And it does so even when, as in the Carter Page case, the governments initial assessment that a target is acting as a foreign agent cant be sustained.

The Page case, of course, provides us with at least one instance where it was evidently possible to publicly disclose not just the fact of surveillance, but substantial detail about its basis, without apparent injury to national security. In the rare cases where FISA evidence is used in a criminal prosecution, defendants similarly receive notice, subject to the constraints of the Classified Information Procedures Act. But if it is at least sometimes possible to provide notice without imperiling national security, FISAs categorical presumption of permanent secrecy seems impossible to justify. Even giving maximum deference to the special needs inherent to intelligence collection, it cannot be that a constitutional notice requirement is overcome simply becausethe government at one pointbelieved a target to be a foreign agent, regardless of whether that belief is borne out.

FISA should instead require a particularized showing of exigency to avoid notice at the termination of surveillance, at least in the case of U.S. person targets. Even if there are indeed compelling grounds for extended delays of notice in most such cases, eliminating the universal presumption creates at least the prospect of meaningful accountability for improper targeting of Americans.

One final feature of the FISA processa matter of longstanding practice rather than statutory structuredeserves reevaluation. The FISA Court is frequently defended against charges that it functions as a rubber stamp on the grounds that its high rate of approved applications does not capture the extended dialectical process that occurs between FISC staff and DOJ attorneys. Proposed applications are often modifiedor withdrawnin response to feedback from the court, rather than being submitted and rejected. The FISC, in other words, is more scrupulous and demanding than the official approval statistics imply.

This process, however, may itself have undesirable consequences. Like any court, the FISC relies on a body of precedent to guide its rulings. Uniquely, however, this body of precedent consists primarily of the FISCs own classified opinions interpreting the FISA statute and the requirements of the Fourth Amendment in the foreign intelligence context.

Normally, precedent functions to set boundaries ongovernment conduct byestablishing exemplars of both what is permissible and what is forbidden. Under this set of facts, a governmentsearch comportedwith therequirements of the Fourth Amendment; under that set of circumstances, it did not. Many of the cases as the heart of our Fourth Amendmentjurisprudence are, in essence, instances of a court telling the government no. (Typically, of course, these are the result of a challenge raised by the subject of a searcha challenge that the secrecy default denies most FISA targets the opportunity to raise.) These establish benchmarks to which future courts can refer in evaluating new cases: If past government conduct was held incompatible with the Fourth Amendment, a similar result should obtain when similar facts recur.

The informal FISA dialectic, howeverespecially in the absence of adversarial testing after the factbiases the paper trail, so that what survives as precedent is disproportionately a record of yesses. When the FISC approves an instance of electronic surveillance, that approval is preserved for the reference of later FISC judges. Yet when the court informally rejects a draft applicationbecause its scope is too broad, or its proposed minimization procedures inadequate, or its probable cause showing thina comparable benchmark may not be established. A new FISC judge confronting an application may have no easy way of knowing that substantially similar applications were in the past rejected at a preliminary stage, while approvals under similar facts remain etched in the record.

Given the natural variance in judicial attitudes to close casesthere will always be marginal fact patterns where some judges would say yes while others would say nothe FISA dialectic risks setting up a ratchet effect over time, even if we stipulate that the Courts procedures are well designed to prevent deliberate judge-shopping. A dozen FISC judges may informally say no, but it is the one who eventually says yes who furnishes the government with a citation for future use.

While this informal dialectic doubtless has many advantages, both for the FISC and the Justice Department, over time it is likely to have a cumulative distorting effect on the FISCs determinations. This is particularly troubling when we consider the FISCs evolving role, which has grown beyond the largely ministerial approval of specific targets, and now routinely includes the evaluation of programmatic surveillance. While it may be less convenient in the short term, it is likely improve the quality of FISC deliberation if the court gets in the habit of putting more of its nos on the record.

Such fundamental changes to the FISA process are, needless to say, more difficult to implement and more prone to meet resistance than Kleins more incrementalist proposals. But if the problems with the current FISA process are indeed structural, as they appear to me to be, then they will only be adequately addressed by structural reform.

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Reforming the FISA Process: Tweak or Overhaul? - Just Security