NAPOLITANO: Fidelity to the Constitution when we need it

by Judge Andrew P. Napolitano | Posted on

When former spy Edward Snowden revealed to the world that the federal government is spying on most Americans, most Americans were surprised and unhappy. But half of official Washington yawned before it roared. Somehow the people in the government had a pretty good idea of what government spies are doing, and they more or less approve of it — but not all of them.

Politicians as diverse as Republican Speaker John Boehner and Democratic Sen. Dianne Feinstein called Snowden a traitor. So did former Vice President Dick Cheney, and President Obama said that for once Cheney’s words were music to his ears. On the other hand, former Democratic Congressman Dennis Kucinich, Republican Sen. Rand Paul, my Fox News colleague Bill O’Reilly and I have all referred to Snowden as a hero.

What did Snowden do that has those in power screaming for his scalp and those — generally — who fear the loss of liberty, including millions of young people, grateful for his courage?

The NSA is America’s domestic spying apparatus. Its budget is secret. It will soon occupy the largest federal building on the planet. It often hires outside contractors to do much of its work. One of those contractors is Booz Allen Hamilton. Booz Allen’s co-chair is former Admiral John M. McConnell, who once headed the NSA. When Snowden began his work for Booz Allen, he took two oaths. The first oath was to keep secret the classified materials to which he would be exposed in his work as a spy; the second oath was to uphold the Constitution.

Shortly after Snowden began his work with the NSA, he came to the realization that he could not comply with both oaths. He realized that by keeping secret what he learned, he was keeping the American public in the dark about what its government is doing outside the Constitution in order to control the public.

What is it doing?

The government persuaded a federal judge with a perverse understanding of the values and history and language of the Constitution to sign a series of orders directing the largest telephone company in the U.S. and the largest Internet providers in the world to make available to the government’s prying eyes all sorts of information about nearly all of us, thus allowing the feds to monitor our use of land-line and wireless phones, as well as our use of emails and texts. The numbers are staggering. Verizon has greater than 113,000,000 U.S. customers who generate or receive more than one billion phone calls every day. Americans text and email one another using the services of Microsoft, Google, Yahoo, Facebook and others many billions of times every day.

The judge’s order was profoundly unconstitutional, as is the section of the Patriot Act that authorized it. The Constitution requires that the government demonstrate to all judges being asked to sign search warrants specific evidence of criminal behavior contained in the things to be seized. And it requires that the warrants themselves particularly describe the places to be searched or the persons or things to be seized.

In this case, the things being seized consist of digital data about nearly everyone in America, which in the hands of a skilled spy can be used to monitor our physical movements and communications and, according to former CIA Director David Petraeus, to predict them. The Patriot Act facilitates these dragnets by unconstitutionally reducing the standard for the issuance of search warrants. The president, who refuses to deny that his spies possess the content of our communications, claims they are not listening to it or reading it.

Who would believe President Obama?

One of the spies who knew the power he and his fellow spies had and who had access to the innermost thoughts of hundreds of millions of us — and who disbelieved the president — was Edward Snowden. Snowden realized the unconstitutional nature of what the government was doing and concluded that he could not be faithful to both of his oaths. One of those oaths — to retain secrets — is grounded in a federal statute that requires secrecy and punishes the exposure of secrets. The other oath is grounded in the Constitution, which is the supreme law of the land and protects the natural right to be left alone and does not punish the governmental violation of that right.

When confronted with the conflicting oaths, Snowden opted for the higher good: fidelity to the supreme law of the land. Hence, in order to protect the privacy of us all, Snowden violated the lesser oath and upheld the greater one. He could not serve two masters when the lesser of the two (fidelity to the government’s laws) facilitated a corruption of the greater of the two (the primacy to the Constitution).

He’s a traitor, the establishment roared. He’s a high-school dropout. He left the Army. He admits to having lots of sex with his girlfriend. He fled to Hong Kong.

Who cares?

He understands, as Ronald Reagan did, that if we don’t control the government, the government will control us. That’s why the Washington establishment yawned when we learned what it knew and now roars because Snowden challenged it. Those in power want to stay there and will misuse the Constitution to do so for as long as they can get away with it, no matter to which political party they belong. Any government that secretly spies on nearly all the population is aiming to control the population.

Snowden knew that this massive violation of the constitutionally guaranteed rights of nearly every American, orchestrated and operated in secrecy, is corrupting the Constitution and empowering the corruptors. It was that understanding plus a willingness to face down those in power who lack fidelity to the Constitution and who can do him harm that constituted the behavior of a hero.

Is he flawed?

The only hero who was not flawed was nailed to a tree 2,000 years ago because those He came into the world to save rejected Him.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”

© ANDREW P. NAPOLITANO
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