As evidence mounts that the FBI has engaged in questionable, and even illegal, surveillance on Americans, experts and lawmakers are questioning whether the bureau has been given too much leeway over whom it can single out for investigation and surveillance.
As a general rule, the FBI investigates federal crimes. But it also has the power to target Americans for threatening “national security,” a term with broad political meaning.
In fact, national security doesn’t have much of a legal definition. Each president sets a national security framework that reflects his policy priorities.
The FBI enjoys broad latitude to open investigations into national security matters. It only needs an “articulable factual basis” that “reasonably indicates” an activity constituting a threat to national security “may occur,” and the investigation “may obtain” information relating to it (pdf).
Once an investigation had been opened, the bureau not only can deploy informants to spy on related targets, but also can query the National Security Agency’s foreign intelligence database, which commonly sweeps up communications of Americans in its collection. Only in recent years has the Foreign Intelligence Surveillance Court forced the FBI to include an explanation with each query on why it was deemed useful in returning “foreign intelligence information” or “evidence of a crime.”
So what is a threat to national security?
“Anything that threatens the independence and sovereignty of the nation,” said retired Air Force Brig. Gen. Robert Spalding, the former senior director for strategic planning at the National Security Council and co-author of President Donald Trump’s 2017 National Security Strategy.
A 1956 Supreme Court opinion in Cole v. Young defined national security as “those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare.”
The description, however, only applied to the Federal Civil Defense Act of 1950.
In practice, each administration issues every few years its own National Security Strategy, which generally enumerates the president’s national security priorities. The document commonly includes matters only indirectly related to “the independence and sovereignty of the nation.”
Trump’s strategy, for instance, has a goal to “reduce regulatory burden.” Onerous regulations “impede research and development, discourage hiring, and incentivize domestic businesses to move overseas,” which, in turn, affects national security, according to the document.
Another goal was to “promote tax reform,” with the aim of boosting the competitiveness of U.S. companies and encouraging them to return their operations from overseas—a goal linked to national security.
The 2015 National Security Strategy of President Barack Obama includes priorities that appear far removed from Spalding’s definition of national security.
One subchapter is dedicated to a “historic opportunity to end extreme poverty within a generation.” It says that lifting people out of extreme poverty overseas increases their purchasing power, which then allows American companies to sell them goods, improving the U.S. economy, which then benefits national security.
Achieving such a goal would also “decrease the need for costly military interventions,” the document states.
The United States has intervened militarily in a number of less-developed countries in recent decades, mainly in the Middle East and northern Africa. Yet nearly all of the poorest countries are in sub-Saharan Africa and Asia, and pose little threat to the United States, let alone necessitate “costly military interventions.”
The document also assigns “high priority” to “mobilizing the international community to meet the urgent challenges posed by climate change.” A subchapter dedicated to the goal of “confronting climate change,” calls it an “urgent and growing threat to our national security.”
The document attributes climate change to a wide range of phenomena, including refugee flows, water conflicts, sea levels, storm surges, and natural disasters, implying that the economic impact of climate change has an effect on national security.
The broad and mutable definition of national security is why Congress shouldn’t delegate to the president powers conditioned on the term, according to Matt Pinsker, adjunct professor at Virginia Commonwealth University and expert on national security and constitutional law.
“Everything can some way or another be connected to national security,” he told The Epoch Times.
On the other hand, he cautioned against imposing too many limitations on law enforcement’s ability to begin investigations.
“There are rules in place to be followed,” he said, “but a lot of things just come down to a matter of human judgment—’Is this a national security issue? Does this person pose a threat?’—which is why we ought to have the right people with the right training.”
Broadening the definition of national security is dangerous, he said, mainly because it can be used by the government to wrest for itself more power over the populace.