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To Limit the Reach of America's Stasi, the FBI, Vacate All FISA Rulings

  • SCOTUS

Tags The Police State

10/01/2022
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The FBI’s raid on President Donald J. Trump’s private Mar-a-Lago residence on August 8, 2022, was, as many FBI critics have said, “unprecedented.” Clearly the FBI is out of control (something Mises readers have known for a very long time). It never targets presidents, and the fact that it’s starting to do so is supposed to indicate that the FBI has strayed from its mandate and is now entering the realm of political gamesmanship.

The logic of this argument is untenable, however. The very fact that the FBI typically doesn’t go after commanders-in-chief, current or former, is proof that the FBI is political. It makes political choices about which crimes (or noncrimes, including the FBI’s favorite, “process crimes”) to investigate and about which criminals (or noncriminals) to harass.

It would take a very, very long time to list the gross injustices in which the political hacks at the FBI have always specialized. It would take even longer to list the things powerful people in the American government have done that have led to precisely zero FBI raids or investigations of any kind. I will spare the reader, noting only that had you or I done any of those things, we would be in prison.

To put it even more simply, the question whether the FBI is political or not can be answered in three words: Operation Crossfire Hurricane.

The debate over the FBI’s Mar-a-Lago ambush, and whether this means the FBI is becoming politicized, is a waste of time. Let us instead use this moment of heightened scrutiny of the born-unconstitutional FBI to focus on a much more central concern: FISA courts.

The Foreign Intelligence Service Act (FISA) of 1978 set up secret courts. These courts are the procedural puppets of the Department of Justice, empowered to issue warrants for the clandestine collection of “foreign intelligence” (read: everyone’s information everywhere) by unconstitutional intelligence agencies such as the CIA and federal police brigades such as the FBI. FISA courts (called Foreign Intelligence Surveillance Courts, or FISCs) are essentially star chambers, with the difference that whereas the Star Chamber often operated in defiance of other courts, FISCs, and FISA, have been held constitutional by non-FISC judicial decisions in the United States.

Not that it matters anyway: FISCs do whatever the hell they want, no matter what the Constitution or other judges say. The lawlessness of FISCs is therefore more egregious than the Star Chamber’s ever was.

There is a great irony in this, beyond the American government’s obvious use of the United States Constitution to do unconstitutional things. What is truly ironic is that FISA was passed as a response to the imperial presidency of Richard Nixon. Nixon argued that things are legal if presidents do them (something, let us remember, with which the FBI agreed until 2016). After 9/11 and the Patriot Act, and the general throttling of American freedoms in pursuit of the “war on terror,” questioning the legitimacy of the FISA court became tantamount to announcing one’s membership in al-Qaeda. Presidents, from George W. Bush onward, played up FISA courts as partners in “keeping America safe.” Even Trump threw the FISA crowd a bone.

But this does nothing to justify FISA, which remains patently unconstitutional. FISA courts are even more unconstitutional on their best day than the FBI is on its worst. Put simply the FBI needs a warrant from a court, however staged, to raid your home, read your mail, or wiretap your phone. These acts are violations of the Fourth Amendment at the very least, which is bad enough. But the fact that a judge signs off on the shredding of the Fourth Amendment under color of “law” is even more dangerous than the goons’ executing the phony warrant. The FBI is therefore, in many ways, a symptom of the unconstitutional rot in the justice system, a rot which stinks strongest whenever a FISA court is in session.

There’s a deeper concern as well. The basic structure of the American government is breaking down. The United States nominally has three branches of government, and those are supposed to share and limit power through mutual antagonism. In 1978, the legislative branch, sensing that the executive branch was becoming too strong, brought in the judicial branch to do its checks-and-balances stuff. This was like bringing in mongooses to control snakes, only to later find that the mongooses have gone feral. The judicial branch gradually grew into the tyrannical power it had been given and now lords it over both the executive and the legislative branches.

It does this by means of FISCs and the FBI, the Department of Justice’s private stasi.

There is little hope that a judicial system so mired in intellectual corruption will right itself. One wishes for a patriot in a black robe to do the right thing and throw all cases out of court that include any “evidence” obtained by means of illegal FISA warrants, but, well, dream on. There is even less hope that the Congress, which created the FISA monster in the first place and then pledged its allegiance to it after 9/11, will act for freedom. And if you’re waiting for the executive branch as an institution to help, then please let me introduce you to Messrs. Garland, Barr, Comey, Mueller, Strzok, McCabe, and Wray.

The last hope is the next president. In addition to declassifying everything (see my earlier article at Mises), he or she must pardon everyone ever convicted in any American court on grounds even indirectly related to any FISA warrant. (The list is very long.) The next president must also publish the names of everyone in the federal government who applied for, authorized, or executed any FISA warrants, so that victims can file civil motions seeking damages.

We go to the mat, in other words, or we lose the whole tournament. Either the next president declares war on the rest of the executive branch, and also on the legislative and the judicial branches, or the gestapo rules us all.

The war against liberty in America is very real, and it has been raging for a very long time. The latest FBI raid is simply that—the latest FBI raid. The real problem is systemic. If American patriots don’t get serious, now, about restoring liberty in the United States, we and our descendants will be slaves of the perfectly legal tyranny of our “constitutional” bondage—all nice and signed off on by federal judges.

Author:

Contact Jason Morgan

Jason Morgan is associate professor at Reitaku University in Kashiwa, Japan, and was a 2016 Mises Institute Fellow. For a list of his books and publications, see his personal site.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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