‘The Memo’ and the Need for Reform of the Intelligence Community

By: Michael Rummel

The firestorm set off last week by House Intelligence Chairman Devin Nunes is undoubtedly an event of political theater, but the attention it has brought to the Foreign Intelligence Surveillance Act (FISA) can be used to start a much-needed conversation about reforming the state of surveillance activities in America.

Rep. Nunes is obviously a sycophant. His recent memo was released not only to appease the insecurities of a paranoid president, but it was also done with blatant disregard for the the damage it would do to the oversight process. He did shed light on a problem that receives little attention, the lack of oversight and control Congress and the public have on our intelligence process. If there’s enough public will, lasting positive change could be achieved.

Ironically, the examples cited in the partisan memo – former Trump Campaign staffers George Papadopoulos and Carter Page – are the exact type of warrants that FISA courts should be issuing. Papadopoulos drunkenly admitted to an Australian diplomat that he had contacts within the Russian government. The diplomat informed the FBI, who duly opened an investigation. For his part, Carter Page has been touting his contacts with Russia even more conspicuously since 2013, sparking FBI concern that Russia was trying to recruit him as an (very) unwitting agent.

Both cases showcase how FISA should be used. There was ample evidence that two American citizens were engaged with the Russian government while nursing political ambitions in the United States. Open and shut.

That said, the intelligence community has been exceeding its mandate since it was unleashed during the Bush Era, particularly after the PATRIOT Act, which reduced the burden of proof for agents seeking surveillance warrants, specifically in cases of terrorism.

The record of subsequent abuses is as lengthy as it is disturbing.

Upholding a long tradition of spying on anti-war protesters, the Pentagon used their engorged powers against skeptics of the Iraq War. They even went so far as to enter their names in an anti-terrorism database, using it to track them. There were also cases of police infiltrating protests and video-taping protestors, a clear violation of first and fourth amendment rights. There is no evidence it has stopped.

The next crackdown on citizens exercising their constitutional rights came during the Occupy Wall Street protests. The FBI used its broad surveillance powers to monitor activists, even going so far as to intimidate them in an attempt to stifle civil dissent. They also made a coordinated effort to put an end to the movement. The protest came to an end on its own, due to internal divisions and a lack of cohesive leadership, but the FBI has no business in violating the first and fourth amendments.

More recently, the FBI and DHS have been monitoring the Black Lives Matter movement, tracking activists and attempting to infiltrate protests. Using the label, “Black Identity Extremists,” they conflate protesters standing up against systemic racism and oppression with violent terrorists, something they do not do with white supremacist groups that are much more dangerous. Pressed on the issue by members of the Congressional Black Caucus, Attorney General Jeff Sessions tacitly endorsed this inconsistent approach.

Local police departments, often supported by federal law enforcement, have been using expanded surveillance powers in attempts to stifle dissent. Several high profile cases indicate that this has been mostly aimed at liberals, as was the case in the Dakota Access Pipeline protests – again in clear violation of not only citizens’ first and fourth amendment rights, but also basic human decency.

This list is far from exhaustive.

Progressives and libertarians have been pushing against this for years now, most famously in Senator Rand Paul’s filibuster against the Patriot Act and NSA surveillance. This surveillance and abuse of power violates the very heart of the constitution, and Congress needs to reform it. There needs to be a higher threshold for FISA warrants, increased oversight on government surveillance, an end to metadata collection, and a prohibition on interfering with political protests. Dissent is patriotic and a fundamental right.

Congress should act. Not because of the Nunes Memo, but because the overreach of government surveillance violates our fundamental rights as Americans.

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