When Edward Snowden first revealed the spying the NSA has been conducting on what was then thought to be only customers of Verizon, the government was embarrassed but reluctantly acknowledged that Snowden revealed a truth. He had, after all, displayed an accurate and faithful copy of a judicial order signed by a FISA Court judge directing Verizon to give billing information to NSA agents about its 113,000,000 American customers.
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Not to worry, the government’s apologists offered, this is only telephone macro-metadata, meaning information about who spoke to whom, when they talked and for how long, and where they were when they talked but not what they actually said to each other. When Gen. Keith Alexander, the head of the NSA, stated under oath at a House hearing that his spies lack the authority to capture content, he avoided addressing whether they have the ability to do so because he knows they do. His boss, James Clapper, the director of national intelligence and a less finessed liar than the general, said under oath at a Senate hearing flatly that the feds were not gathering massive amounts of data about hundreds of millions of Americans, when he knew that they were. And President Obama himself has stated on a few occasions that the government “is not reading” your emails or “listening” to your phone conversations, even though he knows they can.
Since the essence of spying is stealing and keeping secrets, we should not be surprised when that essence is supported by deception and lying. But lying to one’s employers (the American people) is a fireable offense, and lying under oath (to Congress) is a criminal offense. And a government that lies over and over again to the people it is lawfully obliged to serve is not believable and leads to lawlessness.
Obama should have known better than to use Clintonesque language by denying that something “is” happening at the moment he is discussing it. In reality, Obama knows his spies have exceeded their authority under even a broad reading of the Patriot Act and the FISA laws and have grossly failed to comply with their oaths to uphold the Fourth Amendment.
That amendment — which requires judicially issued search warrants based on identifiable probable cause of unlawful behavior, warrants that particularly describe the place to be searched or the person or thing to be seized — was written to prevent all governmental dragnets, fishing expeditions, warrantless invasions of privacy and general warrants (those, like the FISA Court warrants, that do not name the place to be searched or the person or thing to be seized). It was animated by the Framers’ determination to prevent the new federal government from doing to Americans what the British had done to the colonists.
However, in some of my conversations with folks in the government, I have learned that when the government gathers intelligence in order to prevent the future occurrence of an act of domestic terror, as opposed to when it gathers evidence in order to solve a crime that has already been committed, it believes it is not subject to the constraints of the Fourth Amendment.
The feds have based their massive spying apparatus on a secretly stated and utterly ignoble lie — that the Constitution only restrains them when they are engaged in criminal investigations, and not for any other purposes. Such an argument is Stalinesque in its sweep, has no support in history, law or Supreme Court jurisprudence, and is a subterfuge concocted to dupe the public, the media and the judiciary into overlooking, accepting and authorizing the broadest governmental assault on constitutionally protected freedoms since the Alien and Sedition Acts.
We know that the Fourth Amendment was written to restrain the government for all purposes because the British government tormented the Framers and violated their right to privacy for many non-criminal-based governmental purposes, such as tax collecting, speech suppressing and intelligence gathering. The government’s argument, if accepted, would permit the government to engage in a vast array of unlawful human indignities from torture to pre-crime detention to the presence of the government in the bedroom, the boardroom and the confessional, so long as it was not trying to solve a crime. The reason you probably have not heard this argument is that the feds will only make it in secret to their favorite secret court.
In March 2009, Judge Reggie B. Walton, the chief judge of that secret court, the FISA Court, complained in secret about what the court had been told in secret. In that court, only NSA agents and Department of Justice lawyers appear. The court’s only source for its facts and legal arguments is the NSA. We don’t know what deceptions the NSA visited on the court from which it receives general warrants and the involvement of which forms a basis for Obama’s laughable argument that his spies are supervised by the judiciary. But we know that Walton was lied to.
He wrote: “To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court’s wishes. The Court no longer has such confidence.”
Walton undoubtedly knew then what we know now: that the NSA has in its possession the content of every telephone conversation, text message and email sent into, out of or within the United States in the past two and a half years. And it has shared all of that with other government agencies and foreign governments. And it has lied to him in order to get all that.
Is this the government the Framers gave us? Or has it been perverted beyond recognition? What shall we do about it?
Thomas Paine, when confronted with British government-orchestrated assaults on liberty not nearly as pervasive as this NSA spying, remarked that it is the duty of the patriot to protect the liberties of his countrymen from their government. Where are those patriots when we need them?
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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