by Nate Cain, America Outloud:
Did Barr and Esper use January 6 as a pretext for expanded domestic spying?
On January 7, 2021, former Attorney General William Barr and Secretary of Defense Mark Esper signed DoD Manual S-5240.01-A, an annex formalizing expanded guidelines for signals intelligence (SIGINT) operations within the Department of Defense (DoD). This document, signed just one day after the Capitol unrest, has raised significant constitutional concerns, specifically regarding the privacy rights of U.S. persons. The timing of the annex’s signing and the intelligence backgrounds of its signatories have led to questions regarding its intent, the degree of foreknowledge, and whether the January 6 events were leveraged or even anticipated to justify broad surveillance powers. Below, we break down the annex’s constitutional conflicts, discuss Barr and Esper’s IC affiliations, and examine whether their actions align more with the Intelligence Community (IC) than with Trump’s administration.
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Possible IC Influence and January 6th as a False Flag Opportunity
The timing of DoD Manual S-5240.01-A suggests it was preemptively crafted to provide legal grounds for increased surveillance following anticipated civil unrest. With Barr and Esper distancing themselves from Trump and aligning with IC perspectives, it raises questions: Did members of the IC leverage or even facilitate January 6 as a false flag to legitimize expanded domestic surveillance? Were Barr and Esper placed in strategic roles to align the DOJ and DoD with broader IC priorities?
These questions demand further investigation, especially considering Barr and Esper’s backgrounds and the annex’s timing. Such details may indicate intentional pre-planning, leveraging political unrest to push forward intelligence expansion at the expense of constitutional protections.
Breakdown of DoD Manual S-5240.01-A and Potential Constitutional Conflicts
The annex establishes protocols for collecting, processing, querying, retaining, and disseminating SIGINT data on U.S. persons. Although intended to support national security, these provisions pose serious risks to privacy due to vague language and broad allowances.
Sections Potentially Conflicting with U.S. Constitutional Law
Collection of Domestic Communications
- Conflict: Section 2.4(a) restricts the intentional collection of domestic communications but makes exceptions under Paragraph 2.5 and FISA, which authorize data collection related to counterintelligence or military needs. This broad exception could undermine Fourth Amendment protections against unreasonable searches and seizures by allowing SIGINT collection without judicial approval (Brennan Center, 2021).
- Redacted Conflicts: Redactions in Paragraph 2.5 obscure the specific criteria used to target U.S. persons, which may indicate leeway in domestic surveillance without individualized oversight, violating due process rights (Defense News, 2021).
Reverse Targeting of U.S. Persons
- Conflict: Section 2.4(b) prohibits the targeting of foreign communications to collect U.S. persons’ data, but incidental collection remains permissible. This provision could allow surveillance through indirect means, bypassing traditional Fourth Amendment safeguards (Electronic Privacy Information Center, 2021).
- Redacted Conflicts: Additional details in redacted sections may grant broader permissions for incidental data processing, facilitating surveillance of Americans through secondary targeting techniques.
Retention of U.S. Persons’ Communications
- Conflict: Retention policies in Section 4 authorize prolonged storage of SIGINT data on U.S. persons, potentially exceeding five years if labeled “foreign intelligence.” Such allowances could lead to prolonged surveillance, infringing upon due process protections under the Fourteenth Amendment (DoD Manual S-5240.01-A, 2021).
- Redacted Conflicts: Criteria for extending retention periods are hidden within redactions, potentially enabling the government to bypass typical privacy standards based on vague national security needs (Brennan Center, 2021).
Dissemination of Unevaluated SIGINT Data
- Conflict: Section 1.2(c) allows the National Security Agency (NSA) to share SIGINT with other agencies, including the FBI, without full evaluation. This broad sharing of unfiltered data could violate privacy rights if U.S. persons’ information is distributed without minimization (Electronic Privacy Information Center, 2021).
- Redacted Conflicts: Redacted portions may contain expanded allowances for disseminating unfiltered data, allowing information about U.S. persons to be widely shared without cause.
Exigent Circumstances and Discretionary Authorizations
- Conflict: Section 3.4 grants the Attorney General and the Director of NSA (DIRNSA) authority to approve surveillance of U.S. persons under exigent circumstances. This provision bypasses judicial oversight, raising concerns about unchecked surveillance power inconsistent with constitutional standards.
- Redacted Conflicts: Redactions may further relax restrictions on judicial oversight for exigent scenarios, creating a loophole for broad data collection under vaguely defined “national security” needs.
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