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.

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.

Timing and Suspicious Circumstances Surrounding the Annex’s Signing

The timing of the annex, signed one day after the Capitol riot on January 6, strongly suggests pre-planning. Such a comprehensive document likely required months to draft and approve, hinting at possible foreknowledge or anticipation of civil unrest. In government, “Never let a good crisis go to waste” often reflects a pattern where crises provide pretexts for policy shifts. This timing has prompted speculation about whether January 6th was leveraged, or even facilitated, to expand SIGINT capabilities and surveillance over U.S. citizens.

Barr and Esper’s IC Connections and Suspicious Backgrounds

William Barr’s Deep Intelligence Community Roots

Barr’s connections to the IC date back to his early career in the 1970s when he served as a CIA analyst under George H.W. Bush. Throughout his career, Barr has championed extensive executive powers, especially in surveillance, notably endorsing Section 702 of FISA, which authorizes broad data collection, often domestically. His IC-friendly positions have led to questions about whether his DOJ tenure was aligned with Trump’s policies or, instead, served to bolster intelligence operations under IC priorities (Hoover Institution, 2022; The New Yorker, 2022).

In 2019, Barr’s appointment as Attorney General was supported by Republicans who appreciated his stance on executive authority. However, his distancing from Trump in late 2020, including his statement that Trump was “detached from reality,” suggests an allegiance to IC objectives rather than Trump’s agenda (Boston News, 2023). Given Barr’s timing in signing DoD Manual S-5240.01-A, it is conceivable that he was placed in the DOJ to align with IC interests, justifying surveillance expansions consistent with federal objectives.

Mark Esper’s Defense Industry and Intelligence Ties

Mark Esper’s career reflects strong connections with the defense and intelligence sectors. A graduate of West Point and former Army officer, Esper served as Vice President of Government Relations at Raytheon, a defense contractor with substantial government ties. Esper’s appointment as Secretary of Defense came with bipartisan support, likely influenced by defense and intelligence industry allies appreciative of his expertise (Defense News, 2021; CNN, 2022).

During his tenure, Esper showed a tendency to prioritize government control over civil liberties, supporting military involvement in domestic protests in 2020. His distancing from Trump post-election suggests his appointment may have been part of a broader IC strategy to place defense leadership aligned with intelligence priorities. His support for the annex’s policies further underscores the potential for him to have aligned more with IC interests than Trump’s America First policies (Wikipedia, 2024).

Intelligence Community Abuses Against Americans

The annex represents another avenue for the IC, this time through the Department of Defense, to potentially infringe upon the rights of U.S. persons. Historical abuses by intelligence agencies illustrate the consistent risks posed by unchecked surveillance.

1. Department of Homeland Security’s Location Tracking
   The Electronic Privacy Information Center (EPIC) reported that DHS often disregards internal policies and Fourth Amendment protections, using commercial data to track Americans’ locations without warrants. This practice highlights the ease with which IC elements circumvent privacy protections under the guise of national security (Electronic Privacy Information Center, 2021).
2. FBI’s Privacy Violations through FISA
   According to the Brennan Center for Justice, the FBI has engaged in widespread privacy violations by conducting unauthorized searches on Americans using FISA-authorized data. Such actions have raised alarms regarding overreach and the erosion of Fourth Amendment protections (Brennan Center, 2021). These instances reflect a troubling pattern: intelligence agencies leveraging legal loopholes to justify domestic surveillance, often without adequate judicial oversight.

DoD Manual S-5240.01-A adds to these patterns, enabling the IC to operate through the Department of Defense to collect and share SIGINT on Americans with minimal accountability. The vague “foreign intelligence” justifications within the annex closely mirror those used by other agencies to bypass constitutional protections.

Conclusion: The Need for Accountability and Oversight

The events surrounding DoD Manual S-5240.01-A and its potential conflicts with the Constitution exemplify the risks posed by unchecked intelligence powers. As Benjamin Franklin warned:

“Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

The annex’s timing, the affiliations of its signatories, and the current landscape of intelligence abuses against U.S. persons call for heightened scrutiny and transparency in intelligence operations. Only through rigorous oversight can we ensure that national security measures respect the constitutional rights of American citizens.

References

• Brennan Center for Justice. (2021). How the FBI Violated the Privacy Rights of Tens of Thousands of Americans. Retrieved from https://www.brennancenter.org
• Boston News, WHDH. (2023). Barr obliterates Trump’s defense: ‘He knew well that he had lost the election.’ Retrieved from https://www.whdh.com
• The New Yorker. (2022). William Barr and the expanding powers of the executive branch. Retrieved from https://www.newyorker.com
• CNN. (2022). Esper’s criticism of Trump and decision-making during unrest. Retrieved from https://www.cnn.com
• Defense News. (2021). Former Pentagon chief Mark Esper joins Epirus board. Retrieved from https://www.defensenews.com
• Defense News. (2023). For their next acts, former Trump administration DoD officials look beyond traditional defense contractors. Retrieved from https://www.defensenews.com
• DoD Manual S-5240.01-A. (2021). Procedures Governing the Conduct of DoD Intelligence Activities: Annex Governing Signals Intelligence Information and Data Collected Pursuant to Section 1.7(C) of E.O. 12333.
• Electronic Privacy Information Center. (2021). DHS disregards internal policies and avoids Fourth Amendment protections to track your location. Retrieved from https://epic.org