Biden created warrantless surveillance program for border crisis, triggering new civil liberty fears

FISA court approves new NSA program despite declaring “privacy interests protected by the Fourth Amendment are substantially implicated.”

Published: July 31, 2023 11:45pm

Lost in the recent outrage over FBI warrantless spying abuses, the Foreign Intelligence Surveillance Court (FSIC) has quietly approved a new NSA surveillance program to screen the millions of migrants let into the U.S. under President Joe Biden’s controversial border policies despite acknowledging concerns that “privacy interests protected by the Fourth Amendment are substantially implicated.”

The FISC ruling released earlier this month garnered significant attention for revealing the FBI, while making some improvements, still conducts between 160,000 and 200,000 warrantless searches of phone data of Americans every year and that three such intrusions involved a U.S. senator, a state senator and a state judge.

But escaping most notice in that ruling was the court’s approval of a major new National Security Agency program that Biden created as the migrant surge at the southern border began in 2021. The new "travel vetting" program allows for warrantless and “suspicionless queries” of raw Section 702 intercepted communications in an effort to quickly vet foreigners trying to get into the country.

The court ruling issued in April and made public July 21 states that the new NSA program was created by national security directives signed by Biden in 2021 and 2022 to help the State Department and Homeland Security Department in “ensuring that applicants do not pose a threat to national security” and to “support the federal government’s vetting of non-United States persons who are being processed for travel to the United States or a benefit under U.S. immigration laws.”

You can read the full ruling here.

The directives were created during a time when the Biden administration was scrambling to vet hundreds of thousands of migrants who were trying to cross the border lawfully and unlawfully, seek asylum or flee the sudden collapse of Afghanistan caused by Biden’s abrupt withdrawal from that country.

And its approval by the court -- along with the constitutional concerns -- emerge as Congress is engaged in an intense debate whether to renew, scrap or modify the Section 702 warrantless spying program that has been abused – unintentionally and intentionally – by scooping up protected Americans phone records along with those of unprotected foreigners.

Security experts expressed concern that Biden's border surge has led to new warrantless spying at a time when Congress is already uncomfortable with such tactics and seriously considering curtailing or ending expanded powers that date back to the Sept. 11, 2001 terror attacks.

"The irony is that the FISC wouldn’t have to raise its concerns if the Biden administration exercised prudent and reasonably attainable enforcement at the border," retired FBI Assistant Director for Intelligence Kevin Brock told Just the News.

"It’s a little like removing all airport security, suffering hijackings by foreigners as a result, and then expressing concern that law enforcement isn’t doing all it can to respect the privacy interests and 4th Amendment rights of the hijackers and any Americans they may have been in contact with.  It’s a problem that shouldn’t exist in the first place,” he added.

Former Acting Homeland Security Secretary Chad Wolfe said the revelation of the new program directly undercuts the Biden administration's claims that there is no crisis at the border and those seeking to come to America pose no danger.

"I think it's interesting now that they're actually trying to vet some of these illegal migrants, I think it's obviously telling and maybe they know information, but we don't know, that they've kept from the American people that there's actually dangerous people coming across that border, and they want to use this system to vet them," Wolfe told the Just the News, No Noise television show Monday night.

"I think it cuts against the narrative that they've been saying all along. There's no threat here. Nothing to see. But yet they're using a very, I would say secretive process, to actually try to vet these individuals," he added.

Spokesmen for several Biden agencies referred Just the News to the FISC ruling when asked for comment.

Biden's new directives declared that “NSA may use certain unminimized section 702-acquired information for valid counterterrorism foreign intelligence purposes as directed to support the federal government's vetting of non-United States persons who are being processed for travel to the United States,” according to the FISC ruling.

In other words, the NSA can query without a warrant its vast trove of communications records digging for information on migrants even when there is no suspicion or predicate to believe they have done something wrong.

The court bluntly acknowledged such queries are likely to turn up information on U.S. citizens or people living inside U.S. border who are protected by the Constitution.

“Privacy interests protected by the Fourth Amendment are substantially implicated in the Vetting Process when NSA analysts are alerted communications of persons protected by the Fourth Amendment,” the court declared. It added: “Given the scope of the Vetting Process, it appears reasonable to expect that communications subject to Fourth Amendment protection will be reviewed on occasion. “

The court ultimately approved the program because the NSA created a process by which information gathered on Americans can only be disseminated if a senior official approves it.

 “Restrictions on post-acquisition access and use of information may reduce the intrusiveness of government action. In this case, U.S.-person information returned during the Vetting Process is subject to special rules under which dissemination is permitted only if a senior NSA official finds that the specific information to be disseminated meets heightened criteria,” it wrote. “The Court expects it would rarely be necessary to disseminate U.S.- person information to another agency in order to dispose of a travel or immigration application.”

“Despite the use of suspicionless queries, the Vetting Process as authorized by NSA 's querying and minimization procedures is a reasonably effective means of furthering a compelling government interest that intrudes on Fourth Amendment-protected interests only to a limited degree,” it added. “The Court concludes that the Vetting Process under those procedures and ultimately the procedures themselves, are consistent with the requirements of the Fourth Amendment.”

The court ruling reflects that the outside privacy experts that the court consulted secretly during the process had greater reservations about the new vetting program, which were expressed in amici curaie briefs, but the court overruled those concerns.

There has been little discussion in Congress about the new program even amid a major debate over the impact of national security of the Biden border crisis.

But a frequent ally of the Biden administration, the American Civil Liberties Union, has begun raising red flags, saying the new vetting program has launched the warrantless surveillance powers of the government into a new direction of collecting social media posts that are protected by the First Amendment.

“The Biden administration has been quietly deploying and expanding programs that surveil what people say on social media, using tools that allow agents and analysts to invisibly monitor the vast amount of protected speech that occurs online,” the civil liberties group declared recently.

“For years, these kinds of tools have been increasingly used for a range of controversial law enforcement and intelligence purposes. But some of the most troubling programs continuously monitor the social media posts of non-citizens to decide who gets to live, study, or stay in the United States,” it added.

In interviews on the John Solomon Reports podcast, constitutional experts on the left and right expressed surprise that the new NSA surveillance powers were granted for the border and predicted they will impact the debate in Congress this fall over whether to renew Section 702 spying powers or reform or end them.

"I initially supported the FISA courts on this. So I'll be clear about that. And I think the problem now is that the institution that are responsible for bringing these cases over -- which are the FBI and DOJ -- are incapable of self correcting," said Jay Sekulow, the funder of the conservative ACLJ constitutional law firm. "Last week, it was reported that using FISA law, they were actually surveilling a sitting US, Senator. Think about that for a moment. And a sitting US state court judge, and a sitting state legislator.

"The problem is these subpoenas, or these warrants get executed by the court with no defense lawyers present. It's the classic Star Chamber. I just think its usefulness and the abuses of it, again, we've seen it too many times," he added.

Harvard law professor emeritus Alan Dershowitz said while he was encouraged the FISC recognized the civil liberties dangers, he was disheartened the court did not take more assertive action to protect Americans from abuses by requiring any search that involves an American be approved in advance by a court.

"The FISA Court did the right thing by at least pointing out the civil liberties problems, the threat to innocent people who could be overheard by warrantless surveillance," Dershowitz said. "I wish they had taken it a step further and said, 'No, no, you have to show us the need for this. Obviously, we all want to be protected from people coming in for bad purposes. And we know that wiretaps are an important tool in that protection.

"But there has to be an appropriate balance struck between the civil liberties of innocent people who are overheard, and the bad guys who shouldn't be overheard and and to be apprehended on the basis the overhearing," he added. "And I don't think the FISA court does a good enough job of striking that appropriate balance, because they only hear one side of the issue."

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