According to PolitiFact, the U.S. government’s Extremists Crime Database reveals that between September 12, 2001 and December 31, 2016, there were 85 deadly attacks committed in this country by violent extremists resulting in 225 deaths.
Far-Right Violent Extremist Accountable for 47 Percent of Deaths
An April 2017 U.S. Government Accountability Office (GAO) report defined “violent extremism” as “supporting or committing violent acts to achieve political, ideological, religious or social goals.” The GAO report says that of the 225 deaths, 53 percent were caused by “radical Islamic extremists” while 47 percent were caused by “far-right extremists.”
The GAO says violent extremists include “white supremacists; anti-government groups; groups with extreme views on abortion, animal rights, the environment or federal ownership of public lands; and radical Islamist entities, such as the Islamic State of Iraq and Syria (ISIS).”
All these individuals and groups are interchangeably referred to by government prosecutors, research groups, and media outlets as “violent extremists” or “domestic terrorists.”
Writing the PolitiFact piece, Miriam Valverde also called attention to latest statistics on domestic terrorists’ attacks in this country since 9/11 provided by the think tank New America.
This group reports that up to August 12, 2017, including the Charlottesville attack by James Fields with his vehicle, there have 171 deaths associated with “terrorist activities”: 95 caused by jihadist, 68 by far-right extremists, and 8 by black separatist/national/supremacists.
377 Charged with Terrorism Since 9/11
New America says that some 377 individuals in this country have been charged with terror-related offenses since 9/11. Some of these charges resulted from FBI investigations using what is called “FISA warrants” or “FISA surveillance.” These warrants or electronic surveillance orders can only be issued by a Foreign Intelligence Surveillance Court (“FISC”).
The Electronic Privacy Information Center (“EPIC”) reported recently that in 2016 the government filed 1,485 applications for FISA surveillance, either electronic surveillance or physical searches. Of the 1485 applications, 1,338 were for combined electronic and physical searches, 105 for electronic surveillance alone, and 42 for physical searches alone.
FISA Surveillance, Gathering Foreign Intelligence Info Inside the US
Of these 1485 applications, EPIC said the FISC rejected only 34 of them, indicating a “rubber stamp” approval for terrorism surveillance in this country.
But exactly what is a FISA surveillance?
On August 18, 2017, the Eleventh Circuit Court of Appeals in United States v. Osmakac discussed in detail the legal implications of FISA in a terror-related decision.
The appeals court informs us that in 1978 Congress enacted the Foreign Intelligence Surveillance Act (FISA) which is codified in 50 U.S.C. § 1801. The purpose of the FISA is to regulate government surveillance conducted in the United States designed to obtain “foreign intelligence information.”
Secret Court Made of Secret Judges
FISA also created the United States Foreign Intelligence Surveillance Court (“FISC’) to oversee requests for electronic surveillance and physical searches against “foreign spies” working inside the United States. The court is located on Constitution Avenue in Washington, D.C. and its proceedings are highly secretive, far removed from public scrutiny. The Chief Justice of the U.S. Supreme Court is the only person who can appoint any of the eleven federal judges that serve on FISC on a rotating basis. The judges come from federal district across the country and do not need Senate confirmation to serve on FISC.
Although formally directed against foreign spies, FISA was also established to protect American citizens from unlawful, political electronic surveillance like the kind former FBI Director J. Edgar Hoover directed against the late Dr. Martin Luther King, Jr. and a list of “black militants” like the Black Panther Party.
Collecting Mass Data
In the wake of the 9/11 attacks, FISC assumed greater authority, as CNN reported earlier this year, and began “authorizing more sweeping collections of mass data.”
Then in 2008, Section 702 of the 2008 Foreign Intelligence Amendments Act (FIAA) was enacted to permit the National Security Agency (NSA) to monitor the communications of foreigners so long as they are outside the U.S.
The FIAA, however, has been abused in a Hoover-like manner by NSA to monitor, collect, and even rummage through the communications of U.S. citizens in search of criminal activity. These abuses notwithstanding, FIAA was renewed in December 2012 for another five years.
The FBI, CIA, and National Counterterrorism Center have each created their own procedures for how they use information gathered by NSA.
FBI Collecting Sensitive Personal Information
In June 2017, Laura Donohue published a piece in the Council on Foreign Relations, saying: “The FBI’s minimization procedures allow it to query section 702 data to look for evidence of criminal activity. It can collect, analyze, and disseminate the data, even if it relates to highly sensitive personal matters such as sexual conduct, political activities (including ‘discussions with Members of Congress and their staff’) consulting with clergy; and psychiatric and medical appointments.”
FISA electronic monitoring and physical searches applications must be certified by the U.S. Attorney General before it is submitted to FISC. The AG can, and generally will, almost always approve these applications, and secure executive branch certification for them, if they involve national security and can be linked to international terrorists.
Writing in a 2014 edition of University of the Chicago Law Review, law professor Nick Harpert described how the link between domestic and international terrorism is accomplished:
“… In many cases, the government seems to classify these [domestic terrorists/violent extremists] as international terrorists based on Internet activity that ranges from viewing and posting jihadist YouTube videos to planning attacks with suspected foreign terrorists in chat rooms, thus using FISA’s formidable investigatory weapons against them. The government is aided in this task by FIDA’s definition of international terrorists, which has an extremely vague and potentially loose internationality requirement. An expansive interpretation of this requirement could be used to subject what might properly be considered domestic terrorist groups to FISA surveillance. One should be concerned about both the existence and the effects of an expansive interpretation of FISA’s internationality.”
FISA Warrants for Domestic Cases
While electronic surveillance and physical search warrants in domestic terror cases are most often sought from FISC under the USA Patriot Act, Huffington Post reported in August 2013 that the FBI has used FISA to prosecute at least 27 accused [domestic] terrorists in this country since 2007. Citing a 2013 Reuters review of public records, HuffPost pointed out that:
“The Reuters review highlights the extent to which the FBI has come to rely on FISA to investigate or thwart domestic attacks. It involved searching the national court docket using the database of Westlaw, which is own by Thomson Reuters Corp. and includes only case where prosecutors are required to file a notice under FISA. Other cases where FISA was used may be sealed.”
HuffPost added that when the FBI uses FISA to seek approval for either electronic surveillance and/or physical searches, it is “for phone, email and electronic surveillance and for searches of property, including ‘sneak-and-peak’ search warrants in which agents covertly enter a business or home when the occupants are away, and try to leave no trail of their visit.”
Minimal Scrutiny by Courts
And as the Eleventh Circuit pointed out in its Osmakac decision, once a FISA warrant is approved by FISC, “it is subjected only to minimal scrutiny by the courts.” When the FISA target is a U.S. citizen, as Osmakac was, the courts will review the approval/certification process to only make sure it was “not clearly erroneous.”
Prosecuting Cases with FISA-Derived Evidence
FISA imposes “strict limitations” when information obtained from a surveillance or search may be used or disclosed. If the government plans to use the information to prosecute a defendant, federal prosecutors must notify the court and the “aggrieved person,” as the defendant is called, that is intends to use or disclose FISA-derived evidence.
The Eleventh Circuit pointed out that the “aggrieved person” may then “’move to suppress the evidence obtained or derived from such electronic surveillance [or physical search] on the grounds that – (1) the information was unlawfully obtained; or (2) the surveillance [or physical search] was not made in conformity with an order of authorization or approval.’”
Motion to Suppress FISA Evidence
If the government informs the court the it plans to use the FISA evidence and files an affidavit that public disclosure “would harm the national security of the United States,” the district court must then review all the FISA material in camera and ex parte.
Under 50 U.S.C. §§ 1806(f), 1825(g), the district court “may disclose to the aggrieved person, under appropriate security precautions and protective orders, portions of the [FISA] application, order, and other materials relating to the [surveillance or search] only where disclosure is necessary to make an accurate determination of the legality of the [surveillance or search].”
Rigged Process with Few Judicial Protections
It is a rigged process designed to shroud either domestic or international terrorism cases in secrecy, removed from the public eye. We feel that both FISA and the Patriot Act will be used with greater frequency by the current Attorney General Jeff Sessions against Muslims citizens, anti-Trump protestors, or other disfavored groups based on the slightest, or fabricated suspicion that the person is connected to terrorism.
FISA will be used, we fear, by the current Justice Department to obtain a broad range of information about an “aggrieved person,” the person’s family and friends, and his/her lifestyle while the Patriot Act will be used to compile information about suspected criminal activity that can be used to prosecute them.
Ignoring Alt-Right Extremist
Further, we worry that while the government will increase the use of these surveillance gathering statutes in a wholesale manner against the nation’s Muslim community and the president’s political enemies, it will fail use them against violent white extremists like those on display in Charlottesville.
We have already seen President Trump try to minimize the Alt-Right and their violent extremism by associating them with “fine people,” while advocating for a “national registry” for Muslims living in this country simply because of their country of origin and religious beliefs.
Abuse of Power to Invade Privacy, Threaten Constitutionally Protected Activities
The New York Times carried an August 15, 2017 report about the Justice Department “trying to force an internet hosting company to turn over information about everyone who visited a website used to organize protests during President Trump’s inauguration, setting off a new fight over surveillance and privacy limits.”
It is not the conspiracy inspired “deep state” that honest, law-abiding citizens must be concerned. It is the extreme, borderline fascist manner that the Trump administration will use FISA, the Patriot Act and other “law enforcement” tools to surveil political enemies and other law-abiding citizens of this country who are critical of the president and his erratic policies.