Though constitutional literacy remains appalling low among U.S. citizens (and, sadly, even among many members of Congress), most Americans have a general understanding and respect for the 230-year-old document. Nevertheless, and despite all the internal and external challenges our nation has faced from the very outset of its existence, American citizens are still (largely) free to pursue life, liberty, and prosperity. This is no fluke, but in fact is due to the Constitution’s clearly defined, written parameters in which a government must operate, along with designed checks and balances among and even within its branches. Both factors work to ensure no individual, agency, or branch can act arbitrarily, or declare itself the supreme authority on the law; all are beholden to the Constitution’s sovereignty.
That is, at least, how our Founding Fathers intended it to work, which is why the recent actions of rogue government employees involved with America’s secret surveillance panopticon, are truly frightening.
Here is what we know. Retired Gen. Michael Flynn, President Trump’s national security advisor, resigned last week after media reports of phone calls between him and a Russian diplomat occurring in the month before he formally took his position – calls he denied to the F.B.I. However, the media’s discovery of the calls was not the result of hard work by the Fifth Estate to uncover leads and evidence. Rather, the retired general’s demise reportedly was the direct result of illegal leaking of classified government surveillance information by up to 10 “current and former officials, who were in senior positions at multiple agencies at the time of the calls.” Given both Trump and Flynn’s rocky reputation within the Intelligence Community, revenge, rather than public service “whistleblowing,” appears to have been the motive for the leak.
Take a minute to let that sink in. Unelected bureaucrats feloniously took highly sensitive information, collected in secret surveillance programs for national security purposes, to launch a political assassination of a presidential aide, simply because they could. And, should this insubordination go without punishment, the ramifications threaten the very foundations of constitutional rule-of-law.
Given the extent of today’s surveillance state, it is perhaps not surprising Flynn’s phone conversations were recorded in a government database; after all, our government has long monitored calls into and out from the Russian Embassy (as we did the Soviets during the Cold War). And, thanks to Presidents George Bush and Barack Obama, both of whom vastly expanded the government’s surveillance powers, the recording of Flynn’s calls – regardless of what intelligence program or tool ultimately captured the recording – was likely “legal.”
This serves as a chilling reminder that we apparently have reached the point in the “Deep State” in which no electronic communication – even internal government communications -- is safe from government snooping; nor is there any confidence that once monitored, the substance of a communication will be safe from someone in the bureaucracy sharing it for purposes other than reasons of genuine national security. The Obama Administration’s decision in its final days to further loosen the rules on what intercepted data the National Security Agency can share with other agencies, only makes this treacherous environment even more prone to exploitation.
In the past, intelligence personnel at the NSA have been accused of sharing nude photos of innocent civilians it intercepted through its surveillance programs. Of course, such childish misconduct pales in comparison to that when in 2014, CIA personnel were caught hacking Senate computers, for no other reason than they felt the Senate had wronged them regarding a sensitive document.
Flynn is just the latest victim in a disturbing pattern of reckless and defiant behavior from individuals embedded in the Intelligence Community who are unwilling to heed the rule of law, and who act to further their own interests above those of even the President of the United States or Congress.
Herein lies the most concerning issue. When unelected, nameless bureaucrats send a warning shot across the bow of the White House, it presents a serious problem that cannot simply be ignored or dismissed as an isolated incident. In addition to vigorously pursuing the individuals behind the felonious leaking of Flynn’s phone calls, Congress and the Trump White House should see this incident as proof that America’s secret surveillance programs are in desperate need of an overhaul; and that Washington should be reining in these programs, not expanding them as many are advocating.
Intelligence officials may fancy themselves as above Congress or the White House, but they are not above the law. It is high time they are given a hard constitutional rap on the knuckles.