Congressman Griffith’s Weekly E-Newsletter 5.31.20

Unconstitutional Dangers

Sunday, May 31, 2020 | Kevin Baird (202-225-3861)

George Floyd

Like many Americans, I am appalled by what happened to George Floyd. The officers involved in his death did not recognize his constitutional rights to due process or even his dignity as a human being.

I am glad the Department of Justice is investigating. It is right and proper, and the actions by these particular police officers was disgraceful.

FISA

All Americans fall under the protection of the Fourth Amendment to the U.S. Constitution:

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.

Remembering broad and arbitrary violations of a person’s possessions by British officials before the American Revolution, the Founders recognized the importance of guaranteeing against “unreasonable searches and seizures” by government authorities.

Although the Fourth Amendment was ratified before electronic communications, it shields them as well. But the current Foreign Intelligence Surveillance Act (FISA) falls short of these guarantees.

Section 215 of FISA was passed in 2001 as part of the USA PATRIOT Act. Under its terms, the Federal Bureau of Investigation (FBI) and the National Security Agency have secured millions of phone records and data.

Under FISA, these agencies merely submit a “statement of facts” to a special FISA court about how the records they seek are relevant to an investigation. No probable cause, no warrant!

Further, despite the “F” in FISA standing for “Foreign,” many of the communications records obtained by the intelligence community are wholly domestic. These belong to American citizens!

I believe these provisions on their face violate the constitutional rights of American citizens, so I have consistently opposed reauthorizing FISA without wholesale reform throughout my time in the U.S. House of Representatives. But dangerous and documented abuses have awakened more people to FISA’s glaring problems.

Last December, the U.S. Department of Justice’s Inspector General issued a report on the FBI’s investigation of Carter Page, a former Trump campaign official. It found numerous significant lapses in the FBI’s application to the FISA court to surveille Page. Details in the “statement of facts” were not factual, and other information exculpatory to Page was omitted.

A subsequent report released by the Inspector General looked at 29 FISA applications on American citizens and found problems in each instance. In 25 of the applications, the “facts” presented to the FISA court were erroneous or insufficiently supported. In four cases, no supporting documentation was found at all.

President Trump is rightly furious about the mistreatment of his campaign by the intelligence community. He threatened to veto FISA reauthorization. I am glad that he came around to my position, as have many of my colleagues who have seen the harm that can be inflicted by the current FISA law.

But these failures should alarm every American regardless of party. Whether through incompetence or malice on the part of certain investigators, Americans were deprived of the constitutional rights guaranteed to all. If it could happen to a presidential candidate, it could happen to anyone.

FISA’s authorization recently expired, and Congress has been working to reauthorize it. The intelligence community does need tools to perform its important duties. I think we can find a way to enable the performance of intelligence work without putting innocent Americans at risk.

The legislation that has been put forward to reauthorize FISA, however, lacks sufficient changes. I voted against the package reauthorizing it earlier this year.

When reauthorization came back to the House in May, I wanted to make sure all my colleagues were on the record in person on such an important issue. I spoke on the floor in favor of suspending the House’s current proxy voting rules while litigation continues, so that no Member of Congress handed his or her vote to someone else on this matter. And I demanded the yeas and nays on the motion to go to conference with the Senate on FISA legislation.

Curtailing arbitrary and invasive searches was one of the priorities of our Founding Fathers. In 1761, Massachusetts lawyer James Otis gave an impassioned speech against “writs of assistance,” general warrants allowing any British official who obtained them to search anything they suspected of containing smuggled goods. John Adams said of the speech, “Then and there the child Independence was born.”

We must take violations of rights as seriously today – if not for the Constitution’s sake, then for our own.

If you have questions, concerns, or comments, feel free to contact my office.  You can call my Abingdon office at 276-525-1405 or my Christiansburg office at 540-381-5671. To reach my office via email, please visit my website at www.morgangriffith.house.gov.

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