Which is more dangerous to personal liberty in a free society: a renegade who tells an inconvenient truth about government law-breaking, or government officials who lie about what the renegade revealed?
That’s the core issue in the great public debate this summer, as Americans come to the realization that their government has concocted a system of laws violative of the natural law, profoundly repugnant to the Constitution and shrouded in secrecy.
The liberty of which I write is the right to privacy: the right to be left alone. The Framers jealously and zealously guarded this right by imposing upon government agents intentionally onerous burdens before letting them invade it.
They did so in the Fourth Amendment, using language that permits the government to invade that right only in the narrowest of circumstances.
The linchpin of those circumstances is “probable cause” of evidence of crime in “the place to be searched, and the persons or things to be seized.”
If the government cannot tell a judge specifically what evidence of crime it is looking for and precisely from whom, a judge may not issue a search warrant, and privacy -- the natural human yearning that comes from within all of us -- will remain where it naturally resides, outside the government’s reach.
Congress is the chief culprit here, because it has enacted laws that have lowered the constitutional bar that the feds must meet in order for judges to issue search warrants. And it has commanded that this be done in secret.
And I mean secret.
The judges of the FISA court -- the court empowered by Congress to issue search warrants on far less than probable cause, and without describing the places to be searched or the persons or things to be seized -- are not permitted to retain any records of their work. They cannot use their own writing materials or carry BlackBerries or iPhones in their own courtrooms, chambers or conference rooms. They cannot retain copies of any documents they’ve signed. Only National Security Agency staffers can keep these records.
Indeed, when Edward Snowden revealed a copy of an order signed by FISA court Judge Roger Vinson -- directing Verizon to turn over phone records of all of its 113,000,000 U.S. customers in direct and profound violation of the individualized probable cause commanded by the Constitution -- Vinson himself did not have a copy of that order. Truly, this is the only court in the country in which the judges keep no records of their rulings.
At the same time that Vinson signed that order, NSA staffers, in compliance with their statutory obligations, told select members of Congress about it, and they, too, were sworn to secrecy. Oregon Democratic Sen. Ron Wyden was so troubled when he learned this -- a terrible truth that he agreed not to reveal -- that he mused aloud that the Obama administration had a radical and terrifying interpretation of certain national security statutes.
But he did more than muse about it. He asked Gen. James Clapper, the director of national intelligence, who was under oath and at a public congressional hearing, whether his spies were gathering data on millions of Americans. Clapper said no. The general later acknowledged that his answer was untruthful, but he claimed it was the “least untruthful” reply he could have given. This “least untruthful” nonsense is not a recognized defense to the crime of perjury.
After we learned that the feds are spying on nearly all Americans, that they possess our texts and emails and have access to our phone conversations, Gen. Keith Alexander, who runs the NSA, was asked under oath whether his spies have the ability to read emails and listen to telephone calls. He answered, “No, we don’t have that authority.” Since the questioner -- FBI agent turned Congressman Mike Rogers -- was in cahoots with the general in keeping Americans in the dark about unconstitutional search warrants, there was no follow-up question. In a serious public interrogation, a committee chair interested in the truth would have directed the general to answer the question that was asked.
Since that deft and misleading act, former NSA staffers have told Fox News that the feds can read any email and listen to any phone call, and Alexander and Rogers know that. So Alexander’s “no,” just like his boss’s “no,” was a lie at worst and seriously misleading at best.
This is not an academic argument. The oath to tell the truth -- “the whole truth and nothing but the truth” -- also makes those who intentionally mislead Congress subject to prosecution for perjury.
President Obama is smarter than his generals. He smoothly told a friendly interviewer and while not under oath that the feds are not listening to our phone calls or reading our emails. He, of course, could not claim that they lack the ability to do so, because we all now know that he knows they can.
These Snowden revelations continue to cast light on the feds when they prefer darkness. Whatever one thinks of Snowden’s world-traveling odyssey to avoid the inhumane treatment the feds visited upon Bradley Manning, another whistleblower who exposed government treachery, he has awakened a giant.
The giant is a public that has had enough of violations of the Constitution and lies to cover them up.
The giant is fed up with menial politicians and their media allies demonizing the messenger because his message embarrasses the government by revealing that it is unworthy of caring for the Constitution.
Think about that: The very people in whose hands we have reposed the Constitution for preservation, protection, defense and enforcement have subverted it.
Snowden spoke the truth. Knowing what would likely befall him for his truthful revelations and making them nevertheless was an act of heroism and patriotism.
Thomas Paine once reminded the Framers that the highest duty of a patriot is to protect his countrymen from their government. We need patriots to do that now more than ever.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.