This week liberals have displayed their willingness to play politics with our constitutional rights. It is wrong. It is unfortunate. And most of all, it is dangerous.
Recognizing that national interest should supersede partisan interest, I have said repeatedly that the Russian hacking into the Democratic National Committee is not just an attack on Democrats, it is an attack on all Americans. I say this despite being an avowed Republican and supporter of President Donald Trump.
In the course of investigating the Russian hacking, a new, extremely troubling development has developed: during routine monitoring of foreign diplomats, the conversations of American citizens were transcribed and disseminated around government, in some cases for no apparent reason. These American citizens happened to be members of the incoming Trump administration and transition team.
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This development should concern all Americans regardless of ideology or political party, but unfortunately the left has opted to ignore the charge and in some cases outright marginalize it.
As any 1L law student could tell you, the Fourth Amendment protects American citizens against unreasonable search and seizure. This includes our private communications.
As such, rules surrounding wiretapping are detailed, nuanced, specific, and carefully crafted to safeguard this constitutionally enshrined Fourth Amendment right. For instance, to monitor the communications of a U.S. citizen suspected of being an “agent of a foreign power” who is “knowingly engag[ing]…in clandestine intelligence activities,” you must obtain a warrant from the FISA court.
If an American citizen’s communications are intercepted in the course of listening in on a foreign diplomat, the Director of National Intelligence has issued detailed guidance to minimize surveillance of this U.S. citizen.
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Unless there is (1) evidence of a crime or (2) the communication is necessary to understand foreign intelligence, the intelligence official must “minimize the acquisition and retention, and prohibit the dissemination” of such information, according to 50 U.S.C. § 1801. In addition to prohibiting dissemination of the U.S. citizen’s conversation, their names are to be kept private.
But these procedures were allegedly disregarded not once but on several occasions during the Obama administration. For example, the personal communications of Trump’s former National Security Adviser, Mike Flynn, with the Russian ambassador were transcribed and disseminated around government.
Was Flynn committing a crime? Or were Flynn’s words pertinent to foreign intelligence? Even if the answer is yes, the egregious actions of the intelligence community went further.
“Nine current and former officials” in senior positions discussed the situation with the Washington Post, and some details of Flynn’s conversation were made public. As Congressman Trey Gowdy reminded FBI Director James Comey, leaking classified information carries a penalty of up to ten years.
The trampling of Flynn’s rights was of little concern to the left. And as the grievances continue to grow, outrage is still strangely muted.
The head of the House Intelligence Community, Congressman Devin Nunes, announced last week that “on numerous occasions the intelligence community incidentally collected information about U.S. citizens involved in the Trump Transition.” The collected communications of U.S. citizens appeared to have “little or no apparent intelligence value” but were nevertheless “widely disseminated in intelligence community reporting.”
The names of the Trump officials were “unmasked” and “none of this surveillance was related to Russia or the investigation of Russian activities or of the Trump team,” said Nunes. According to reporting, some of the unmasked conversations were innocuous discussions about Trump’s children!
This information should alarm anyone concerned about protecting the rights of American citizens, especially when coupled with the Obama administration’s last-minute executive order, E.O. 12333, which permits the NSA to share private communications widely around government. A curious last move for an outgoing administration accused of unauthorized unmasking of Trump transition officials’ communications.
Despite the law being changed to allow widespread dissemination of communications in some cases, according to Nunes, this change was implemented after the apparent violations that took place in disseminating Trump transition officials’ communications.
Liberals should be alarmed at the accusations of wrongful surveillance of American citizens. The Fourth Amendment should not be a partisan issue but a cherished constitutional right that both parties seek to protect.
The liberal promotion of politics above constitutional principle is extremely concerning and threatening to the cherished values of our American democratic system.
Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown University’s School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.