While the nation’s political class has been fixated on a potential government shutdown in Washington this week, the NSA has continued to spy on all Americans and by its ambiguity and shrewd silence seems to be acknowledging slowly that the scope of its spying is truly breathtaking.
The Obama administration is of the view that the NSA can spy on anyone anywhere. The president believes that federal statutes enable the secret FISA court to authorize the NSA to capture any information it desires about any persons without identifying the persons and without a showing of probable cause of criminal behavior on the part of the persons to be spied upon. This is the same mindset that the British government had with respect to the colonists. It, too, believed that British law permitted a judge in secret in Britain to issue general warrants to be executed in the colonies at the whim of British agents.
General warrants do not state the name of the place to be searched or the person or thing to be seized, and they do not have the necessity of individualized probable cause as their linchpin. They simply authorize the bearer to search wherever he wishes for whatever he wants. General warrants were universally condemned by colonial leaders across the ideological spectrum -- from those as radical as Sam Adams to those as establishment as George Washington, and from those as individualistic as Thomas Jefferson to those as big-government as Alexander Hamilton. We know from the literature of the times that the whole purpose of the Fourth Amendment -- with its requirements of individualized probable cause and specifically identifying the target -- is to prohibit general warrants.
And yet, the FISA court has been issuing general warrants and the NSA executing them since at least 2004.
Last week we learned in a curious colloquy between members of the Senate Select Intelligence Committee and Gen. Keith Alexander and Deputy Attorney General James Cole that it is more likely than not that the FISA court has permitted the NSA to seize not only telephone, Internet and texting records, but also utility bills, credit card bills, banking records, social media records and digital images of mail, and that there is no upper limit on the number of Americans’ records seized or the nature of those records.
The judges of the FISA court are sworn to secrecy. They can’t even possess the records of what they have done. There is no case or controversy before them. There is no one before them to oppose what the NSA seeks. They don’t listen to challenged testimony.
All of this violates the Constitution because it requires a real case or controversy before the jurisdiction of federal courts may be invoked. So when a FISA court judge issues an opinion declaring that NSA agents may spy to their hearts’ content, such an opinion is meaningless because it did not emanate out of a case or controversy. It is merely self-serving rhetoric, unchallenged and untested by the adversarial process. Think about it: Without an adversary, who will challenge the NSA when it exceeds the “permission” given by the
FISA court or when it spies in defiance of “permission” denied? Who will know?
For this reason, the FISA court is unconstitutional at best and not even a court at worst. It consists of federal judges administratively approving in secret the wishes of the government. By not adjudicating a dispute, which is all that federal judges can do under the Constitution, these judges are not performing a judicial function. Rather, they are performing a clerical or an executive one, neither of which is contemplated by the Constitution.
And yet, the president and his secret agents and the politicians who support them would have you believe that the NSA’s spying has been approved by bona fide federal courts. It has not. Does the Constitution permit the federal government to put us all under a microscope? It does not. The government is supposed to work for us and derive its powers from the consent of the governed. Do you know anyone who consented to all this? I do not.
The traditional bar that the government must meet in order to begin gathering data on any of us is individualized articulable suspicion about criminal behavior. The purpose of that requirement is to prevent witch hunts and inquisitions and knocks on doors in the night. Without that bar, there are no limits as to whom the feds can pursue.
What will become of us if the feds can watch our every move and hear our every conversation and learn our every expenditure and read our every email and find out what we eat and whom we love and how we live? There are well over 4,500 federal crimes. The feds can find something wrong that anyone has done. Stalin’s chief of secret police, the monster Lavrenti Beria, once famously proclaimed: “Show me the man and I will find you the crime.” History teaches that a government on a witch hunt, unconstrained by law or Constitution, will not stop until it can brand someone as a witch. And an unbridled inquisition will not stop until it finds a heretic. The Constitution simply never entrusted the people who run the government with this awesome power. Rather, in the Fourth Amendment, it prohibited it.
If the right to life, liberty and the pursuit of happiness -- which are the stated reasons for forming the United States of America in the first place -- mean anything, they mean that we all possess the inalienable right to be different and the inalienable right to be left alone. Neither of these rights can be honored when the government knows all. And when the government knows all, and doesn’t like what it knows, we will have an authoritarian state far more odious than any history has ever known.
On the face of an all-knowing secret government are large and awful eyes -- and no smile.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.