NAPOLITANO: Domestic spying is dangerous to freedom

How is it that the government can charge Edward Snowden with espionage for telling a journalist that the feds have been spying on all Americans and many of our allies, but the NSA itself, in a public-relations campaign intended to win support for its lawlessness, can reveal secrets and do so with impunity? That question goes to the heart of the rule of law in a free society.

Since Snowden’s June 6th revelations about massive NSA spying, we have learned that all Americans who communicate via telephone or the Internet (who doesn’t?) have had all of their communications swept up by the federal government for two-plus years. The government initially claimed that the NSA has gathered only telephone numbers and billing data. Now we know that the NSA has captured and stored the content of trillions of telephone conversations, texts and emails, and can access that content at the press of a few computer keys. All of this happened in the dark, with the permission of President Obama, with the knowledge and consent of fewer than 20 members of Congress who were forbidden from doing anything about it by the laws they themselves had written, and based on secret legal arguments accepted by a secret court that keeps its records secret even from the judges who sit on the court.

This massive spying — metadata gathering, as the NSA calls it — was also done notwithstanding statements NSA officials made in public under oath and in secret classified briefings to Congress, which effectively denied it. The denials were in one case admitted to — “least untruthful,” as the director of national intelligence later called his own testimony. Then, when even members of Congress who usually support a muscular national security apparatus realized that they, too, had been lied to by the NSA, the NSA responded with its own leaks.

It has leaked, for example, that as a consequence of its spying it has prevented at least 50 foreign-originated plots from harming Americans. It eventually backed off that number and declined to reveal with specificity what it independently learned and how that knowledge foiled the plots. But we do know that its colleagues in the FBI were participants in many of those plots, which means they weren’t real plots at all — just government stings going after dopes and dupes.

Last week, the NSA leaked that it captured actionable intelligence of grave and imminent danger to our embassies in the Middle East. The implication it wants you to draw here is that because it caught al Qaeda operatives talking in code in Yemen about deadly deeds they plan to perpetrate in the Arabian Peninsula, somehow the NSA’s spying on 300 million innocent Americans is constitutional, lawful, effective and therefore worth the loss of freedom.

Earlier this week, we learned that other federal agencies of alphabet nomenclature — the DHS, the DoJ, the DoD, the DEA, the CIA, the IRS, the FBI — all want access to the NSA’s database, and it has shared some of it with most of them. Also this week, former DEA (Drug Enforcement Administration) agents, claiming this has been going on for at least a decade, acknowledged that the DEA regularly receives raw data from the NSA and uses that data to commence criminal investigations.

Down the slippery slope we go.

The whole NSA spying apparatus was sold to Congress as a limited mechanism for combating foreign terrorists. How putting the intimate thoughts of all Americans who use telephones and the Internet under the federal microscope helps to fight foreign terrorists has never been explained in a public court — only in a secret one. But using this extra-constitutional means to fight crime brings us closer to a Soviet-style and value-free police state.

The Constitution intentionally has placed values in the path of law enforcement and national security so as to maintain our natural rights. Those values are generally articulated throughout the Constitution and specifically addressed in the Fourth Amendment. The linchpin of those values is the natural right to be left alone. All persons — even bad guys — have that inalienable right, and the government may only invade that right when it can identify a bad guy and articulate the probable cause it has to believe he is committing criminal acts. The rest of us — those for whom there is no probable cause of criminal acts — retain that right, and it cannot be taken away from us by the supine acquiescence of Congress or an unnamed judge in a secret court. That constitutional requirement — and that requirement alone — has kept Americans free from Soviet-style persecutions.

Now comes Obama, who is quarterbacking the most massive end run around the Constitution in modern times by invading everyone’s right to be left alone in the name of national security but, in reality, for any governmental purpose the government wishes. And for the unfortunate people whose criminal prosecutions have commenced from the NSA’s supposedly anti-terror spying, the feds are refusing to reveal to lawyers what the source of the negative information against them was. That, of course, violates the constitutionally protected right to confront all of one’s accusers, especially those who have been paid for their accusations.

What’s going on here?

It is painfully obvious that the government is not troubled by its own violation of the Constitution. The people in the government who have done this are far more concerned with their retention of power than they are with protecting our personal liberties. That explains their perverse view that when Snowden frustrates them with a whistle-blowing leak, he can be prosecuted, but when they rebut him with their own leaks, they are to be lauded. That is not the rule of law in a free society.

What will the NSA spies seek next? Our passwords? We already know the answer to that one. They asked for them last week.

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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