The Biden administration is protecting Trump-directed surveillance records. Why?

During the tumultuous 2020-2021 period, the Trump administration used Pentagon aerial surveillance assets to spy on domestic protesters. There are two things we still don’t know about the episode. One is the scope and duration of that surveillance. The second is why the Biden administration is shielding those records from the public.

On January 25, 2024, the Cato Institute filed a Freedom of Information Act (FOIA) lawsuit against the Defense Department seeking answers to those questions. The legal action was initiated following almost three years of foot-dragging on the request by the Biden administration.

Why is this still important? Because the policies and procedures that led the Trump-controlled Pentagon to use RC-26B turboprop planes could easily be violated again by officials of the current or any future administration.

Equipped with visible and infrared spectrum sensors, the RC-26Bs optical instruments “have enough resolution to show basic features of vehicles that may allow a trained observer to identify such things as make and model” and “also identify objects as people, and detect some activities such as walking or riding a bicycle,” per the U.S. Air Force Inspector General report on the 2020 Air National Guard’s use of the planes over multiple U.S. cities.

And according to former House GOP January 6 Select Committee member and remorseless Trump critic Adam Kinzinger, the RC-26 can carry lots more than fancy cameras. He should know, as he flew them in Iraq in combat.

In his recent political memoir Renegade, Kinzinger says the RC-26 “could fly fast and low, capturing the signals from thousands of cellphones.”

“When one matched a number known to be used by insurgents or their Iranian allies, the technology could pinpoint the location, capture video of the area, and send both to ground troops without delay,” Kinzinger added. “With the right coordination, the target could be reach in minutes, not hours.”

The Air Force IG report claims that the signals intelligence (SIGINT) package referenced by Kinzinger was removed from the Air National Guard RC-26Bs before they were flown over American protesters. That’s a claim, not something that’s ever been separately verified beyond the Air Force IG investigation.

But let’s assume for the moment that those RC-26Bs did not collect cellphone or other digital data during those counter-protester surveillance operations in 2020 (and perhaps in 2021). What’s to stop the Biden administration from using them against pro-Trump protesters if the Supreme Court rules Trump is not immune from prosecution or is disqualified to run in 2024 because of his central role in the January 6, 2021, insurrection?

What’s to stop a new Trump administration from ordering the RC-26Bs (and lots of other military intelligence assets) from being used against anti-Trump protesters or his self-declared political enemies?

In summarizing their findings, Air Force IG investigators acknowledged the potential peril, saying “The missions were not used to track individuals, but there was a risk that they could have been.”

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Just because the Constitution or an applicable federal statute says people in the executive branch are prohibited from doing something does not mean that they won’t do it anyway. And Congress took no affirmative steps to update any existing law to explicitly bar, with appropriate criminal and civil penalties, any use of military assets for domestic surveillance of First Amendment-protected political activities, such as demonstrations or rallies.

However, they still have a chance to do so.

On April 19, Section VII of the Foreign Intelligence Surveillance Act (FISA) will expire unless renewed by Congress. This includes the serially-abused FISA Section 702 surveillance authority. It would be a simple matter for any FISA Section 702 reform bill to include language barring the use of DoD intelligence assets or personnel from being used to surveil peaceful protesters. And given how politically polarized Americans are right now, taking a clear step to protect everyone’s constitutional right can only help to cool the political temperature.

Former CIA analyst and ex-House senior policy advisor Patrick G. Eddington is a senior fellow at the Cato Institute.

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