The last few days I have been reflecting on the United States Constitution and how the military and FBI interact with it.

The military has a duty to uphold the constitution above any leader. They take an oath to support and defend the constitution. They do not take an oath to any individual leaders. Their constitutional knowledge is aligned with their roles.

1. Foundational Training in Constitutional Obligations

• Military leaders receive foundational training that covers the U.S. Constitution, especially the principles relevant to military service. This includes understanding their oath to uphold the Constitution and the principles of lawful orders, civilian control of the military, and adherence to the Uniform Code of Military Justice (UCMJ).
• For instance, all officers are taught that they must obey lawful orders but are obligated to refuse orders they believe to be unlawful or unconstitutional. However, this is not equivalent to the depth of constitutional expertise that a legal professional would have.

2. Focus on Relevant Legal Areas

• Military education includes training in specific constitutional issues, particularly those related to the First, Fourth, and Fifth Amendments, as these impact rules of engagement, searches and seizures, and due process in military justice.
• Leaders also learn about the Posse Comitatus Act, which restricts the military’s role in domestic law enforcement, and the War Powers Resolution, which governs the president’s ability to deploy troops without congressional approval. But they may not study constitutional issues that don’t directly relate to military operations, such as many Supreme Court interpretations.

3. Reliance on Legal Advisors (Judge Advocates)

• Each branch of the military has a corps of legal experts, known as Judge Advocate General (JAG) officers, who are trained specifically in constitutional and military law. These JAG officers advise commanders on complex legal issues, including constitutional ones, ensuring that military actions comply with both military law and constitutional requirements.
• When faced with a legal question or a potential constitutional issue, military leaders typically consult their JAG officers for expert guidance.

4. High-Level Officers and Advanced Training

• Senior military leaders (such as generals and admirals) often undergo more advanced training in law and policy, which may include constitutional principles relevant to national security, international law, and military ethics. Additionally, some high-ranking officers pursue advanced legal studies, but this is more the exception than the rule.

5. Duty to Protect the Constitution Over Specific Legal Expertise

• Military leaders are bound by an oath to protect the Constitution, which instills a strong commitment to upholding constitutional principles, even if they lack specialized training. Their role emphasizes the ethical responsibility to recognize orders that may seem unlawful and to consult legal experts before acting on potentially questionable directives.

In summary, military leaders are not constitutional experts, but they have a working knowledge of constitutional issues related to their duties and can consult JAG officers for in-depth legal guidance. Their training ensures they understand their duty to protect and uphold the Constitution, even if they rely on legal professionals for the nuanced interpretation of constitutional matters.

The FBI is also bound by the constitution.

ke all government entities, the FBI must operate within constitutional limits, particularly those protecting civil liberties such as due process, freedom of speech, and protections against unreasonable searches and seizures. However, while the FBI is legally required to follow the Constitution, there have been instances where its actions have been criticized as infringing upon constitutional rights.

Here’s how the FBI is constitutionally limited and what can happen if it steps beyond those limits:

1. Fourth Amendment: Search and Seizure

• The Fourth Amendment protects individuals from unreasonable searches and seizures, requiring law enforcement, including the FBI, to obtain warrants based on probable cause. For FBI operations, this often means securing judicial authorization before conducting searches, wiretaps, or surveillance on individuals.
• Violating these protections can result in any evidence gathered being suppressed in court under the “exclusionary rule,” which prevents unlawfully obtained evidence from being used in criminal prosecutions.

2. First Amendment: Freedom of Speech and Association

• The FBI is also limited by the First Amendment, which protects freedom of speech, religion, and association. It cannot lawfully investigate or surveil individuals solely based on their exercise of these rights.
• Nevertheless, the FBI has been criticized historically for overstepping these boundaries, such as during the COINTELPRO operations in the 1950s and 60s, which targeted civil rights leaders and political activists. These actions led to public outcry, legal challenges, and reforms aimed at reinforcing the FBI’s constitutional obligations.

3. Fifth and Sixth Amendments: Due Process and Right to Counsel

• The Fifth Amendment guarantees due process rights, and the Sixth Amendment ensures the right to counsel, particularly in criminal proceedings. The FBI is required to inform suspects of their rights (through “Miranda rights”) during interrogations.
• If the FBI fails to respect these rights, it risks having its cases dismissed, as courts can throw out statements or evidence gathered in violation of due process or the right to counsel.

4. Oversight and Accountability

• The FBI operates under oversight from Congress, the Department of Justice (DOJ), and the courts. Its activities are subject to review, and agents can face disciplinary action or criminal charges if they violate the law or the Constitution.
• Internal review bodies, like the DOJ’s Office of the Inspector General (OIG), investigate misconduct, including potential constitutional violations, and report findings to ensure accountability.

5. Legal Consequences and Civil Remedies

• If the FBI violates an individual’s constitutional rights, affected parties can sue the agency or its agents under laws such as Bivens v. Six Unknown Named Agents, a Supreme Court case that allows individuals to seek damages for certain constitutional violations by federal officers.
• Additionally, if the FBI overreaches or violates constitutional rights in a systematic way, Congress or the courts may impose reforms to limit its power, as seen in past legislation like the Foreign Intelligence Surveillance Act (FISA) and the establishment of FISA courts for overseeing surveillance requests.

6. Public and Legislative Reforms

• Major abuses or perceived overreach by the FBI have historically led to public backlash and legislative reforms. The Church Committee in the 1970s, for instance, uncovered FBI abuses of power, resulting in reforms that aimed to strengthen constitutional protections against unlawful FBI activities.

Here are some examples of times the FBI abused or was accused of abusing their power.

1. COINTELPRO (1956–1971)

• The FBI’s Counter Intelligence Program (COINTELPRO) was designed to monitor and disrupt groups it deemed subversive, including civil rights organizations, anti-Vietnam War protesters, and other political activists.
• The program targeted high-profile figures such as Martin Luther King Jr., Malcolm X, and the Black Panther Party, often employing surveillance, infiltration, harassment, and disinformation campaigns.
• One notorious incident involved the FBI attempting to blackmail Martin Luther King Jr. by sending him a threatening letter encouraging him to take his own life and attempting to discredit him publicly.
• After COINTELPRO was exposed in 1971, it faced widespread condemnation, leading to major reforms aimed at curbing such abuses.

2. The Surveillance of Political Activists and Protesters

• Over the years, the FBI has surveilled individuals and organizations involved in political activism, often without substantial evidence of criminal activity.
• For example, during the Vietnam War era, the FBI monitored anti-war activists, including John Lennon and other high-profile celebrities, under the premise that they posed potential threats to national security.
• More recently, there have been reports that the FBI has monitored groups such as Black Lives Matter activists and environmental protesters, sometimes using broad surveillance methods that critics argue infringe upon First Amendment rights.

3. Abuse of the FISA Process

• In recent years, the FBI has faced scrutiny over its use of the Foreign Intelligence Surveillance Act (FISA) to obtain warrants against U.S. citizens. A prominent example was the investigation into Carter Page, a former adviser to Donald Trump’s 2016 presidential campaign.
• The Department of Justice’s Inspector General found that the FBI had made significant errors and omissions in its FISA warrant applications, leading to accusations of abuse of surveillance powers.
• These findings raised concerns about the potential for the FBI to misuse the FISA process to conduct surveillance on individuals without sufficient evidence, leading to calls for reforms in FISA procedures.

4. Ruby Ridge Incident (1992)

• The standoff at Ruby Ridge, Idaho, involved the FBI and Randy Weaver, a man who had failed to appear in court on firearm charges. After a U.S. Marshal was killed, the FBI escalated the situation, resulting in the deaths of Weaver’s wife and son.
• The FBI’s use of force and the circumstances surrounding the incident led to accusations that it had overstepped its authority and acted recklessly.
• In response to Ruby Ridge and the subsequent Waco Siege, the FBI implemented changes in its protocols for handling armed standoffs, particularly regarding the use of force.

5. Waco Siege (1993)

• During a standoff with the Branch Davidians, a religious group in Waco, Texas, the FBI launched a raid that ended in a fire, killing 76 people, including many women and children.
• The incident raised questions about the FBI’s approach and use of excessive force, with critics arguing that the FBI mishandled negotiations and ignored opportunities to resolve the situation peacefully.

6. Spying on the Anti-War Movement During the 2000s and 2010s

• Following the September 11, 2001 attacks, the FBI increased surveillance on American citizens as part of the War on Terror, including activists who opposed the Iraq War and other foreign interventions.
• Some FBI informants infiltrated activist groups under the suspicion that they might engage in terrorism-related activities, despite no evidence linking them to criminal behavior. Civil liberties organizations argued that these actions infringed on the activists’ rights to freedom of speech and association.

7. The “Muslim Surveillance” Program (Post-9/11)

• In the years after the September 11 attacks, the FBI faced criticism for its surveillance of Muslim communities across the U.S. Reports surfaced of FBI informants infiltrating mosques, often without specific evidence of criminal activity, leading to accusations of religious profiling.
• This program strained relations between Muslim communities and law enforcement, and many organizations argued that it unfairly targeted individuals based on their religious beliefs.

Conclusion

These examples demonstrate how the FBI’s broad authority can lead to overreach, especially when operating with limited oversight or in politically charged contexts. Each instance has resulted in legal and social backlash, often leading to reforms intended to ensure greater accountability and oversight. Nevertheless, these incidents remain powerful reminders of the importance of protecting civil liberties while balancing national security concerns.