Judging Freedom - Rep. Andy Biggs, AZ (R) : Hey, Mike Johnson, It’s the Constitution You’re Trashing!

Episode Date: November 30, 2023

Imagine a world where Fourth Amendment protections are compromised. Well, the expiration of Section 702 of the FISA Act has the potential to make it a reality. With Congressman Andy Biggs by our side, we tackle this pressing issue and challenge the slippery slope of suspending constitutional protections for a class of people. We expose the betrayal of the Constitution by many of our colleagues, and discuss the pushback on making even the smallest changes to the law. Critical insights from House Speaker Mike Johnson also come to light as we underline the significance of preserving everyone’s constitutional rights, irrespective of nationality.Brace yourself as we shift gears to the reauthorization and potential reform of the 702 program. We call out the need for accountability and penalties for unlawful access to American's communications, and take you through the murky waters of the federal government purchasing data from private companies for surveillance. An unlikely alliance between progressive Democrats and libertarian Republicans emerges, challenging both parties' leadership for reforms. Finally, dive into a riveting conversation with Judge Andrew Napolitano and Congressman Biggs about the ongoing fight for the right to privacy and constitutional protections. Get your passion for human liberty and constitutional rights ignited in this episode. Don't miss out!See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Resolve to earn your degree in the new year in the Bay with WGU. WGU is an online accredited university that specializes in personalized learning. With courses available 24-7 and monthly start dates, you can earn your degree on your schedule. You may even be able to graduate sooner than you think by demonstrating mastery of the material you know. Make 2025 the year you focus on your future. Learn more at wgu.edu. Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Wednesday, November 29th, 2023.

Congressman Andy Biggs, a Republican of Arizona, joins us now. Congressman Biggs is coming to us from an office on Capitol Hill. We called him at almost literally the last minute because of the urgency of the matters which he and I will now discuss. Congressman Biggs, always a pleasure, my dear friend. Thank you for accommodating us and thank you for the leadership you're playing on this effort to destroy our civil liberties. The FISA Act, which expires this Christmas time, basically removes Fourth Amendment protections to foreign individuals communicating into, out of, or within the United States and the Americans with whom they communicate. How Congress thinks it can suspend the Fourth Amendment for a class of people is beyond me. We'll talk about the theory for a minute, but the practice, what's happening here, how the Republicans, many of your colleagues, many of our friends, have betrayed the Constitution is what I want to discuss.

Where does it stand as we speak, the efforts by Republican leadership to reenact, to prevent from expiring this monstrous law? Judge, first of all, thanks for having me. It's good to be with you. And thanks for your leadership on this issue because you're an important voice and you need to keep out there vocalizing the pernicious 702. I mean, so let's talk about where it stands. That's what you want to know where it stands. So procedurally, we have a bill that we've been putting together that has what I would call the the things, the reforms that even the Intel community, not the community, the Intel committee agrees we should have. So that's a kind of our base bill that we're working from.

And next week, the House Judiciary Committee is going to have a markup. And in that markup, we're going to take that base bill and we're going to put in additional some amendments on there that will protect our constitutional rights more. So things that need to go in there is to have a warrant before the intelligence community or the police apparatus of the federal government can actually query. Now, another word for query is search. But before they can query a U.S. person from a database that they legally obtain by going there, let's just look at it this way. They're looking at people that they're supposed to be looking at foreign persons or foreign entities who are not in the United States. And when they have that database, and if a U.S. person

is encountered in that database, they want to just be able to go in and look at that U.S. person. And we're saying, no, we want a warrant before you can go in there. We want an independent arbiter to adjudicate whether there's reason, which we would call probable cause, to actually even look into that U.S. person. The Constitution, the Fourth Amendment, protects all persons. It doesn't limit that protection to just Americans. It doesn't limit that protection to just good persons. It doesn't limit that protection to persons that the government likes. It protects everyone. How does the Congress think that by ordinary legislation, not by a constitutional amendment, but by ordinary legislation, it can defy the Fourth Amendment by exempting

its protections from a class of people on the basis of where they were born? There is no even serious argument made right now, Judge, about that. And I'll just tell you why. I'll just tell you why. It's because we can't, we're having trouble paring down this law. We're having trouble actually reinventing it and changing the scope. So the parameters so that just U.S. persons, people in the U.S. are protected. And so to move beyond that and say everyone is entitled to Fourth Amendment rights would be, that'd be like a bridge too far. We can't even, we're having trouble, I guess what I'm't even we're having trouble i guess what i'm

saying we're having trouble moving incrementally where we need to to be moving toward much less going for the home going for a home run or a grand slam here does anybody besides you and congressman massey discuss the thomas massey discuss the constitutionality of tinkering with constitutional standards? Or is all of this, what can we give the intelligence community? What do they need to keep us safe? Because they're going to claim they need whatever they want. And once you give them this power, they're going to cry like babies if you try and take it away from them. You've seen that yourself. That's right, Judge.

Well, I will tell you that from the judiciary's point of view and the judiciary side, we talk extensively about the constitutionality of the whole program, whether it's the whole FISA Title I. A lot of people conflate Title I of FISA with 702, but we talk about all of that. And I will just tip my hat as we've, I've been on this task force, represented Judiciary Committee with Tom McClintock of California and Laurel Lee of Florida. And I will tell you that we have consistently raised, as we've met with the Intel Committee's representatives, the constitutionality of this. And, you know, my colleagues, they're more articulate than I am, but they passionately, and we've raised these constitutional issues with our colleagues from the Intelligence Committee. And quite frankly, they've responded and tried to justify on constitutional grounds their position. And that's where, frankly, in some areas, we have agreement,

but we just don't have agreement in all areas. So talk to me about Mike Johnson, the speaker, because when he was Congressman Mike Johnson, he was not in favor of extending 702. When he was Congressman Mike Johnson, he was in favor of an up or down vote, that they just might put the reauthorization of 702 into the National Defense Authorization Act, which basically funds the Defense Department, which nobody is really going to vote against. And so there'll never be an up or down vote. So a couple of questions. One, if there were an up or down vote, it stays, it goes. Would it stay or go in the House? And two, will there be an up or down vote, or will Republican leadership engage in shenanigans so as to deny you the right to compel everybody to vote yes or no on this unconstitutional monstrosity?

Judge, if they do a clean reauthorization in the House, I believe it fails on an up or down vote. If they do significant reforms, I think it overwhelmingly passes because this is an issue that civil libertarians in the Democrat Party, as well as in the Republican Party, are trying to get to a place where we're going to protect more rights, at least move incrementally into the direction that we need to go in a significant way. And I think it passes overwhelmingly. And I'm talking about things like where warrants, at least warrants for querying a U.S. person, right,

and those types of things, and holding people accountable when they wrongfully do this. Because we've got everything from civil and criminal penalties for individuals and agencies. But the bottom line is, if we can get something meaningful, and we've put something out that I think is meaningful. It's not everywhere that we want it to be, but it's significant. I think that passes overwhelmingly. When is the last time that an FBI agent or an NSA agent was punished for unlawfully hacking into an American's computer communications? Probably never. I don't believe ever. I was told by someone at FBI that one person had, but that was years ago.

But just, Judge, that's the point. It's the fox guarding the hen house to hold these guys accountable, these agencies accountable. And that's why you have to hit them where they live, and that's financially. You have to also, I think, put in, at least put in the laws so that they know that they're violating the law. And if we ever get someone with integrity to go in and go after them, then they'll have a mechanism to do that. When you ask them why they need to spy on us, what do they say? Because there's a terrorist behind every bedpost and behind every refrigerator and we have to find them and the right to privacy be damned? Yeah, that's exactly what it is. It's you can hear the same stories over and over again.

They'll say, here's how we thwarted this person. Here's how we found this person is all with with 702 or is all with Pfizer Title One. And if we don't do this, we're gonna miss all of these security and safety measures in place. We won't know what's happening and the US will be more dangerous. And I find that almost laughable from especially from a regime that has an open border where they acknowledge that there are international terrorists,

criminal gang members, drug and human traffickers coming across our border in one area. In the area, I live in the Tucson sector. I don't live on the border, but I live in the Tucson sector. More than 2,000 people a day coming in that they're not vetting. They don't know where they are, who they are, where they're going. So I find it laughable to say we're going to impose these kind of constraints on the American public so we can keep you safe. It's odd.

Tell me about the FBI and the intelligence community purchasing databases from the private custodians of them and then mining those databases. In other words, the FBI can't get a search warrant just to go through Google's database, if I use Google to communicate with you and everybody else. And the NSA theoretically can't get a FISA warrant just to rummage through a database. I happen to think the NSA rummages through everything, but that's another issue for another time. I want you to tell me and tell us about the phenomenon of the federal government doing indirectly what it absolutely is prohibited from doing directly, by purchasing private communications from custodians of them. Yeah, that is exactly what's happening. So they will buy from, and it isn't just like

companies you've ever even heard of. I mean, Google's got a massive database, obviously, and others do as well, but there are private vendors that will go in and accumulate data. So let's say that you go to a grocery store, Judge, and you sign up to get their little deal so you can get specials and sales. Well, now all your information is in there. That information is floating around and gets sold elsewhere. And the federal government and its police alphabet soup of police agencies buy this data, and then they can mine it, as you say. I'll give you an example of one called the Hemisphere Program. So it's not just in FISA. I mean, people need to understand this. This isn't just in FISA and NSA and FBI. You had a group buying in the hemisphere program.

They were buying data. And then after January 6th, they were using that to try to put people on the Quiet Skies program, which means you're a domestic terrorist and they're going to take away your right to travel in the U.S. All without any kind of due process. Right. So that's called the Hemisphere program. That's a report has just come out recently on that, exposing that. So we have to clean that up as well but this is the weaponization of the government and then what they're doing is do what you're talking about is they're essentially making these um these middle these these data brokers as their middlemen as their agents and they're they're claiming that they have the ability then

because they're not directly engaged. That's not true though. The law is very clear on this. You cannot employ someone else to do what the federal government has no right to do. And the case law, I think, is pretty clear on that over time. So that's what they're doing.

And we're fighting, trying to fight back with this 702 reauthorization. Because the entire FISA thing is not up for reauthorization. It's just 702. We're trying to get reforms and attack the entire FISA program as well. Is this a unique combination of progressive Democrats and libertarian Republicans against the leadership of both parties who want to do the White House's bidding, or is that an oversimplification on my part? Well, I think it's bigger and broader, the movement in the House. So you have the people who I wouldn't necessarily would say are necessarily civil libertarians, but they do understand the constitutional ramifications the movement in the house. So you have the people who I wouldn't necessarily would say are

necessarily civil libertarians, but they do understand the constitutional ramifications to a certain extent. They also understand that the, the federal government's been weaponized. So you have, don't forget you have, the Democrats have been victims of this weaponization as well. And so they don't, they want to protect the civil liberties of their people, just like we want to protect them of our people. So I think, Judge, I just think if we got something meaningful and added some enough protections in there or renewed protections in there, that you would actually see a super majority of the House vote this out, which would put pressure on the Senate, which the Senate, by the way,

Schumer and those guys, they want to do a clean reauthorization of FISA and 702, of 702, not FISA's done reauthorization. They want to do a clean reauthorization of 702. They don't want any changes in it. So what happens if the Senate votes yes to reauthorize it just as it is, suspending the Fourth Amendment protections for foreign persons and the Americans with whom they communicate, and the House votes no? Well, in theory, the 702 expires at the end of December 31st. And on the face of it, I would normally say I'm content with that. But there's another problem there, Judge. There is something called Executive Order 12333.

And so there's two aspects to this thing to be concerned about. The authorities under 702 do not expire until April 11th of 2024. So even if 702 itself got sunset on December 31st, the authorities would continue on for three and a half months. Right. So that's so that's that's why you've got to do something more than just let it expire. The second thing is this executive order is really what the the fallback position will be from all of these alphabet soup soup espionage agencies of the U.S. This is an executive order signed by Ronald Reagan with such ambiguous language that the alphabet soup, FBI, NSA, BATF, whatever they are, can interpret it however they want. It's up to the president of the United States. I personally asked Donald Trump to rescind that executive order, reminded him that he himself was victimized by it. I wasn't able to succeed in one of my many privileged conversations with him. Perhaps there'll be another opportunity. I don't know. But the point is, if Congress doesn't

authorize this stuff, if Congress affirmatively votes this down, it's hard to believe that the government would continue to do it anyway, just because the president told them to do it. Judge, before I got to Congress, I think you're saying that facetiously, because before I came to Congress, I would have thought the same thing. But I would say that this administration is particularly lawless. And these intelligence community agencies, they in particularly are lawless. And they do what they think that they want to do, regardless of what the laws. Now, they'll tell you that they're following the authorities that they have, they're operating within the authorities that they've been delegated to them by Congress. But my experience and what the inspectors general, I mean, Horowitz did some really good work. But what we have seen is that is not necessarily the case. So even if

Congress affirmatively, if let's say that both the House and the Senate said no, and we let it expire, or we affirmatively voted to eliminate the program, and Joe Biden signed it, that's the only time I would believe that he actually had a chance to actually bring it under control, except for what we have seen under both Democrat and Republican administrations, the bureaucratic state, the fourth branch of government that's illegitimate, would go ahead and continue acting. And until Congress defunded them and made sure they didn't have money to do this act, they would continue. Wow. Terrible state of affairs. But thank you for the battle you're waging for the right to be left alone. My column is out tomorrow in The Washington Times, and the working title, you know, I don't always get to choose the title, is, Hey, Mike Johnson, it's the Constitution you're trashing.

We'll see if it has any legs. Thank you, Congressman Andy Biggs. Always a pleasure, my dear friend, no matter what we're talking about. Keep up the fight for human liberty and constitutional protections. Absolutely. Thank you, Congressman Andy Biggs. Always a pleasure, my dear friend, no matter what we're talking about. Keep up the fight for human liberty and constitutional protections. Absolutely. Thank you, Judge. Thank you very much. Of course. All right. Coming up right now in a couple of minutes at 1130 Eastern, Professor Jeffrey Sachs and this afternoon, Phil Giraldi and Professor Jeffrey Mearsheimer and the great Max Blumenthal. Judge Napolitano for

Judging Freedom. Thank you.