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The FBI is facing scrutiny regarding its use of a controversial provision of the Foreign Intelligence Surveillance Act (FISA) after they queried for communications of and about a Member of Congress without a warrant. The Bureau is defending its actions and arguing it should be able to conduct warrantless defensive searches that attempt to root out foreign influence or other nefarious actions targeting the person being queried. Thats an audacious demand because defensive surveillance is precisely the excuse the government has used to justify some of its most egregious political spying over the past 60 years.

Right now, Section 702 of FISA lets the government engage in warrantless surveillance of foreigners abroad, including all the communications they have with Americans. The FBI goes to that stockpile of private conversations and deliberately seeks out Americans emails and text messages, bypassing the Fourth Amendments warrant requirement entirely. After years of compliance violations and abuse, Congress may be poised to close this backdoor search loophole.

But now the FBI is pushing for a huge exception, arguing it should be allowed to keep the current warrantless system for defensive searches, such as the recently revealed case where they queried communications of and about U.S. Rep. Darin LaHood because they believed he was the target of foreign espionage and influence operations.

But history is filled with chilling examples of how easily the notion of conducting defensive surveillance to protect Americans from foreign influence can be a pretense for politically motivated surveillance abuse. For example, J. Edgar Hoover authorized the monitoring of Dr. Martin Luther King Jr. ostensibly to defend against alleged communist influence efforts aimed at King and other civil rights leaders. In reality, it was motivated by Hoovers racism and hatred of the civil rights movement.

Detecting and defending against purported foreign influence and subversion was a frequent excuse for monitoring political dissidentssuch as the antiwar movement, Black activists, students, and other left-leaning groupsthroughout the 1960s and 70s for the abusive COINTELPRO surveillance system. The FBI even described the notion of defensive surveillance as something that offers us a fertile field to develop valuable intelligence on leftist political groups despite a lack of evidence of actual foreign danger.

Justifying spying on vulnerable communities and dissidents as a defensive measure to protect against foreign actors has continued into the 21st century. After the September 11 attacks, the New York Police Department, with federal support, engaged in mass surveillance of Muslim communities. They justified monitoring mosques, community centers, student groups, and the daily lives of average Americansactions with serious harmsas necessary to guard against influence and infiltration by foreign actors like al Qaeda. Even more recently, the FBI and DHS have raised the idea of foreign influence as a basis for monitoring Black Lives Matter activists. In 2020, then President Donald Trump and Attorney General Bill pushed the notion that potential foreign subversion through Antifa justified broad surveillance and police action against protesters.

These examples also show the dangers of a split warrant standard for sensitive queries, as Privacy and Civil Liberties Board Member Beth Williams proposed at a Congressional hearing last week. Her proposal would keep warrantless queries as a general practice but add heightened protections for certain queries, such as those involving elected officials, members of the media, and religious figures. The types of surveillance abuse weve seen from the 1960s to the past decade are replete with examples of the government targeting individuals who do not fall into any of these categories, and are simply normal people. Past compliance reports have clearly demonstrated how problematic US person queries can target such a broad range of individualsrelatives of FBI personnel, crime victims, political commentators, students, law enforcement sources, and business leadersthat no such sensitive queries rule could shield all those in need of protection.

The decades-long pattern shows that a blank check for warrantless defensive searches of Americans communications collected pursuant to Section 702 could be abused for political or other purposes. To be sure, there are certain to be many genuine situations where the FBI and other intelligence agencies want to investigate and root out foreign influence efforts or other nefarious actions by foreign actors targeting Americans. The government should be able to pursue those investigations through its broad arsenal of lawful investigative tools, including appropriately predicated and judicially authorized searches of communications.

But theres a reason the Fourth Amendment does not prohibit unreasonable offensive search and seizuresno matter what the governments motive is or claims to be, we need a strong and consistent shield to protect our citizens and our democracy. Before searching for an Americans private communications, get a warrant.

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There Is No Defensive Search Exception to the Fourth Amendment ... - Center for Democracy and Technology

Last week, FBI officials boasted that in 2022 their agents had spied on only 120,000 Americans without search warrants! Under the Constitution, that number should be ZERO.

This revelation is supposed to give members of Congress comfort that the folks we have hired to preserve, protect and defend the Constitution are in fact doing so. In reality, the FBI and their cousins at the National Security Agency continue to assault and violate a core freedom protected by the Constitution the right to be left alone.

The reason for the FBI revelation last week is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan animosity toward its extension.

Section 702 is unconstitutional on its face as it directly contradicts the core language of the Fourth Amendment. On its face, it permits the feds to conduct warrantless surveillance on foreign persons who are either physically or digitally present in the United States and all with whom they communicate American or foreign who are located here.

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey or your cousin in Geneva, Switzerland, calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant. And then the feds can monitor the future calls you make and texts and emails you send. And then they can monitor all the communications of the persons you reached and all the persons they reach. As this expands on and on to the sixth degree, the numbers grow exponentially to hundreds of millions.

The reason for the search warrant requirement is to prevent a repeat of what British agents did to the American colonists before the Revolutionary War. Then, secret British courts in London issued general warrants to British agents in America, which authorized the bearer to search wherever he wished and seize whatever he found.

When the British used their general warrants to search colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to predict who among the colonists entertained revolutionary ideas that might lead to a revolt against the king.

The existence and the enforcement of the Stamp Act proved so unpopular that Parliament rescinded it after just one year. But the former bond between colonials and their king had been irreparably breached and a sea change in colonial thinking pervaded the land. The core of that sea change was not taxation without representation; it was "freedom."

To the colonial mindset, freedom had one universal meaning. It meant freedom from the government from king and Parliament.

The sea change in colonial thinking resulted in an ideological welcome mat for the Declaration of Independence. When Thomas Jefferson was holed up in a Philadelphia rooming house for five days in June 1776 writing and revising the Declaration, he thought he was crafting the ideological fountainhead of a minority of landowners who despised the king's autocracy. Yet, within a year, farmers and laborers joined the popular and bloody revolt that ended in 1783 with freedom from England.

What about freedom from the new government here?

When the Constitution was ratified six years later, it had no amendments and made no mention of personal liberty. Five of the ratifying states had insisted upon the promise of the addition of a Bill of Rights as a pre-condition to ratification.

And so, the first task of the new Congress was to comply with that promise and craft a Bill of Rights, lest these five states secede from the new union. What became the Fourth Amendment protected the quintessentially American right to be left alone.

It states that "the right of the people to be secure in their persons, houses, papers, and effects" shall be secure and may be violated by the government only pursuant to a search warrant issued by a neutral judge and based on probable cause of crime and the warrant must specifically describe the place to be searched or the persons or things to be seized.

There is no exception in the amendment for foreign people, bad people, dangerous people, violent people, people the government hates or fears. By the plain meaning of its English words, the amendment protects ALL people. There is no limitation in the amendment to government personnel engaged in law enforcement. The amendment restrains ALL government. The very purpose of the amendment is to present an obstacle to all government because the amendment protects the natural human right to personal privacy.

James Madison and his colleagues who drafted the amendment made a value judgment consistent with their Judeo-Christian-informed morality namely, that natural rights trump governmental needs.

The violation of privacy is a form of government aggression. Madison knew the tendencies of government toward aggression. The Fourth Amendment was to be the bulwark against it. The people could protect themselves against private aggressors, but they'd need a clause in the supreme law of the land and independent judges to restrain government aggressors.

After 50 years of studying, teaching, writing about, judging, interpreting and just plain explaining the Constitution, I am convinced that those in government don't believe its words or accept its values. They don't feel bound by it.

They have crafted mechanisms of all sorts like Section 702 to evade and avoid it. They will claim that it impairs their duties. Yes, it does intentionally so, and in the name of personal liberty. Today, liberty is impaired for foreign persons, an immutable characteristic. Tomorrow it could be impaired for any other immutable trait. Of what value is a Constitution with congressionally crafted, politically based exceptions? None.

Channeling Justice George Sutherland, if the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.

Andrew P. Napolitano's column is distributed by Creators.

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Napolitano: Does government believe in the Constitution ... - The Winchester Star

OPINION:

Last week, FBI officials boasted that in 2022, their agents had spied on only 120,000 Americans without search warrants. Under the Constitution, that number should be zero.

This revelation is supposed to give members of Congress comfort that the people we have hired to preserve, protect and defend the Constitution are in fact doing so. In reality, the FBI and their cousins at the National Security Agency continue to assault and violate a core freedom protected by the Constitution the right to be left alone.

The reason for this revelation is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act and the bipartisan opposition to its extension.

Section 702 is unconstitutional on its face as it directly contradicts the core language of the Fourth Amendment. On its face, it permits the feds to conduct warrantless surveillance on foreigners who are either physically or digitally present in the United States and all with whom they communicate American or foreign who are here.

Thus, for example, if you call or text or email an art dealer in Florence, Italy, from your home in New Jersey, or your cousin in Switzerland calls or texts or emails you at your home in California, the FBI can monitor all those communications without a search warrant.

And then the feds can monitor the future calls you make and texts and emails you send. And then they can monitor all the communications of the people you reached and all the people they reach. As this expands on and on to the sixth degree, the numbers grow exponentially to hundreds of millions.

The reason for the search warrant requirement is to prevent a repeat of what British agents did to the American colonists before the Revolutionary War. Then, secret British courts in London issued general warrants to British agents in America, which authorized the bearer to search wherever he wished and seize whatever he found.

When the British used their general warrants to search Colonial homes ostensibly looking for tax stamps in compliance with the Stamp Act, they were really attempting to predict who among the colonists entertained revolutionary ideas that might lead to a revolt against the king.

The existence and the enforcement of the Stamp Act proved so unpopular that Parliament rescinded it after just one year. But the former bond between the colonists and their king had been irreparably breached and a sea change in Colonial thinking pervaded the land. The core of that sea change was not taxation without representation; it was freedom.

To the Colonial mindset, freedom had one universal meaning. It meant freedom from the government from king and Parliament.

The sea change in Colonial thinking resulted in an ideological welcome mat for the Declaration of Independence. When Thomas Jefferson was holed up in a Philadelphia rooming house for five days in June 1776 writing and revising the Declaration, he thought he was crafting the ideological fountainhead of a minority of landowners who despised the kings autocracy.

Yet within a year, farmers and laborers joined the popular and bloody revolt that ended in 1783 with freedom from England.

What about freedom from the new government here?

When the Constitution was ratified six years later, it had no amendments and made no mention of personal liberty. Five of the ratifying states had insisted upon the promise of the addition of a Bill of Rights as a precondition to ratification.

And so the first task of the new Congress was to comply with that promise and craft a Bill of Rights, lest these five states secede from the new union. What became the Fourth Amendment protected the quintessentially American right to be left alone.

It states that the right of the people to be secure in their persons, houses, papers, and effects shall be secure and may be violated by the government pursuant only to a search warrant issued by a neutral judge and based on probable cause of crime and the warrant must specifically describe the place to be searched or the people or things to be seized.

There is no exception in the amendment for foreign people, bad people, dangerous people, violent people, or people the government hates or fears. By the plain meaning of its English words, the amendment protects all people. There is no limitation in the amendment to government personnel engaged in law enforcement. The amendment restrains all government. The very purpose of the amendment is to present an obstacle to all government because the amendment protects the natural human right to privacy.

James Madison and his colleagues who drafted the amendment made a value judgment consistent with their Judeo-Christian morality namely, that natural rights trump governmental needs.

The violation of privacy is a form of government aggression. Madison knew the tendencies of government toward aggression. The Fourth Amendment was to be the bulwark against it. The people could protect themselves against private aggressors, but theyd need a clause in the supreme law of the land and independent judges to restrain government aggressors.

After 50 years of studying, teaching, judging, interpreting, writing about, and just plain explaining the Constitution, I am convinced that those in government dont believe its words or accept its values. They dont feel bound by the law of the land.

They have crafted mechanisms of all sorts like Section 702 to evade and avoid it. They will claim that it impairs their duties. Yes, it does intentionally so, and in the name of personal liberty. Today, liberty is impaired for foreign people, an immutable characteristic. Tomorrow it could be impaired for any other immutable trait. Of what value is a Constitution with congressionally crafted, politically based exceptions? None.

Channeling Justice George Sutherland, if the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.

Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.

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Constitution might as well be abandoned if amendments are not ... - Washington Times

Petitions of the week ByKalvis Golde on May 6, 2023 at 1:49 pm

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions were watching is available here.

A police officer who opens a car door and looks inside, without permission, probable cause, or a search warrant, violates the Fourth Amendments ban on unreasonable searches. This week, we highlight cert petitions that ask the court to consider, among other things, whether two officers likewise commit a search when one opens the door to a car and another looks inside.

Jackie Jackson, a Black man, was driving in Cincinnati, Ohio, when he was pulled over by police. The officers told Jackson he had been stopped because his windows were too dark and asked him to produce his drivers license and insurance. As six more officers arrived on the scene, Jackson questioned their motive. (None of the officers, it turned out, had a window tint meter, the tool used to measure legal levels of window tint.)

Jackson turned off the car, leaving the key in the ignition, and took out his phone to pull up his proof of insurance. When he began filming the encounter, an officer opened the door and ordered Jackson to exit the car, then leaned in to remove the key from the ignition. The officer left the car door open.

While Jackson stood at the back of the car, a second officer walked up to the drivers side of the car and peered in the open door using a flashlight. He saw a marijuana cigarette on the floor under the drivers seat. The officers then searched the rest of Jacksons car, finding a pistol in a basket of laundry in the back seat. Jackson was charged with three counts related to unlawful possession of a handgun.

Jackson sought to suppress the discovery of the pistol. After the police found the marijuana cigarette, Jackson conceded, they had probable cause to search the rest of his vehicle. However, he argued that the first police officer violated the Fourth Amendment when he ordered him to get out of the car, and the pistol was only discovered as a result of that constitutional violation. After the trial court denied Jacksons motion to suppress, Jackson pleaded no contest to the charges against him.

By a divided vote, the Ohio Supreme Court affirmed. It ruled that because neither officer conducted an illegal search of Jacksons car, the pistol could be admitted as evidence. The first officer, who ordered Jackson to step out of the car and opened the car door, did not conduct a search because his only intent was to secure Jackson and the vehicle not to obtain information, the court explained. And although the second officer who later looked inside the car was seeking to obtain information, the court reasoned, he too did not conduct a search when he saw the cigarette because the door was already open and the cigarette lay in plain view.

In Jackson v. Ohio, Jackson asks the justices to grant review and reverse the Ohio Supreme Courts decision. Until the state supreme courts decision, Jackson contends, no American court had ever held that the police can shield their searches from constitutional scrutiny by dividing their work between two officers. The state courts decision also created a conflict among the lower courts, he told the justices, which until now had followed a uniform bright-line rule: A search occurs whenever a police officer opens the door and the police find contraband inside, regardless of the officers motives in opening the door.

Hester v. Gentry22-835Issue: Whether the 14th Amendments due process clause protects a fundamental right to pretrial liberty that prevents states from depriving a presumptively innocent person of physical liberty pending a criminal trial unless a court finds that the deprivation is necessary to protect public safety and/or reasonably assure the persons appearance at future court proceedings.

National Rifle Association of America v. Vullo22-842Issue: Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the governments own hostility to the speakers viewpoint or (b) a perceived general backlash against the speakers advocacy.

Dermody v. Massachusetts Executive Office of Health and Human Services22-957Issue: Whether an annuity that satisfies the condition in42 U.S.C. 1396p(c)(2)(B)(i) determining the Medicaid eligibility of a married institutionalized person must name the state as the first remainder beneficiary in order to avoid Section 1396p(c)(1)s transfer penalty.

Doe v. Securities and Exchange Commission22-963Issues: (1) Whether theDodd-Frank Wall Street Reform and Consumer Protection Act of 2010swhistleblower award program excludes whistleblowers whose criminal conduct is only tangentially connected to a Securities and Exchange Commission enforcement action (and related actions) and who have pleaded guilty but have not been sentenced; and (2) whether the SECs heavily redacted Orders Determining Whistleblower Award Claims and sealed Whistleblower Award Proceedings are entitled toChevron,Skidmore, or some other level of deference.

Jackson v. Ohio22-978Issue: Whether, when one police officer opens the door of a car and another officer looks through the open door for contraband, the police have conducted a search of the car within the meaning of the Fourth Amendment.

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One police officer opens a car door, and another looks inside. Did ... - SCOTUSblog

President Joe Biden while speaking in an interview with MSNBC aired on May 6, 2023. YouTube/MSNBC

As the fears of default loom large on the world's largest economy, US President Joe Biden has said that the circumstances are not at the point where the 14th Amendment needed to be invoked to avoid the country defaulting on its loans.

It is implied from his comments that the Biden Administration has retained the option to invoke the amendment were the country to go into default on June 1.

Joe Biden while talking in an interview with MSNBC said: "I've not gotten there yet."

There is not much time left for the polarized Congress to raise the debt ceiling of $31.4 trillion with the warning coming from the Treasury Department that it could not be able to pay its loans back as soon as June 1.

If Congress fails to act, some legal experts say, Biden, 80, has another option to avert a crisis: "Invoke the 14th Amendment to the US Constitution to ensure the United States can continue to pay its bills."

The Fourth Amendment of the US Constitution adopted after the 1861-1865 Civil War, notes that the "validity of the public debt of the United States ... shall not be questioned."

But the clause has been largely unaddressed by the courts.

Experts have recommended that Biden could invoke this amendment to raise the debt ceiling on his own if Congress does not act. That would almost certainly lead to prolonged legal wrangling, which could unsettle financial markets

A person briefed on those discussions was quoted by Reuters as saying: White House and other administration officials have examined the possibility but many have dismissed it as a last-ditch solution unlikely to survive a court challenge.

Top Republicans and Biden alongside other Democrats from Congress will discuss Tuesday next week to try to put an end to the three-month standoff over the federal debt ceiling and prevent a crippling default before the end of the month.

The positions maintained by both sides are: Biden is calling on lawmakers to raise the federal government's self-imposed borrowing limit without conditions, and Republican House Speaker Kevin McCarthy says his chamber will not approve any deal that doesn't cut spending to address the nation's growing budget deficit.

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Biden retains option of invoking 14th Amendment to avoid default - Geo News