What if the federal government captures in real time the contents of every telephone call, email and text message and all the fiber-optic data generated by every person and entity in the United States 24/7/365? What if this mass surveillance was never authorized by any federal law?
What if this mass surveillance has come about by the secret collusion of presidents and their spies in the National Security Agency and by the federal government's forcing the major telephone and computer service providers to cooperate with it? What if the service providers were coerced into giving the feds continuous physical access to their computers and thus to all the data contained in and passing through those computers?
What if President George W. Bush told the NSA that since it is part of the Defense Department and he was the commander in chief of the military, NSA agents could spy on anyone, notwithstanding any court orders or statutes that prohibited it? What if Bush believed that his orders to the military were not constrained by the laws Congress had written or the interpretations of those laws by federal courts or even by the Constitution?
What if Congress has written laws that all presidents have sworn to uphold and that require a warrant issued by a judge before the NSA can spy on anyone but Bush effectively told the NSA to go through the motions of getting a warrant while spying without warrants on everyone in the U.S. all the time? What if Presidents Barack Obama and Donald Trump have taken the same position toward the NSA and ordered or permitted the same warrantless and lawless spying?
What if the Constitution requires warrants based on probable cause of criminal behavior before surveillance can be conducted but Congress has written laws reducing that standard to probable cause of communicating with someone who has communicated with a foreign national? What if a basic principle of constitutional law is that Congress is subject to the Constitution and therefore cannot change its terms or their meanings?
What if the Constitution requires that all warrants particularly describe the place to be searched or the person or thing to be seized? What if the warrants Congress permits the NSA to use violate that requirement by permitting a federal court to issue general warrants? What if general warrants do not particularly describe the place to be searched or the person or thing to be seized but rather authorize the bearer to search indiscriminately through service providers’ customer data?
What if most Americans have offered the view that they have nothing to hide from the government? What if the government has no moral, constitutional or legal right to personal information about and from all of us without a valid search warrant consistent with constitutional requirements?
What if raw intelligence data comes to the government without any proper names on it? What if in order to find those proper names, the government goes through a procedure called unmasking? What if lawful unmasking can only occur when the government knows that a national security problem is afoot and it needs to know the identity of the person whose communications it has in hand?
What if the Obama administration made it easier for political appointees to unmask members of Congress and other government officials without demonstrating a national security need as a reason for doing so? What if unmasking for political purposes is a felony?
What if there are 17 federal intelligence agencies that collect raw intelligence data from Americans? What if for generations these agencies needed to keep the secrets they acquired to themselves, unless the dissemination of the secrets or the unmasking of the communicants was necessary for national security purposes?
What if after Trump was elected president, the Obama administration issued regulations that permitted the indiscriminate sharing of raw intelligence data among agents from any of the 17 federal intelligence agencies? What if, after this raw intelligence data sharing was permitted, some of it ended up in The New York Times and The Washington Post? What if President Trump himself was a victim of indiscriminate sharing and criminal unmasking? What if no one has been prosecuted for this?
What if the use of raw intelligence data for political purposes is a serious threat to personal liberty? What if we in America are the most watched, photographed and copied society in history? What if we never agreed to this? What if instead we have a Constitution that was written in large measure to prevent this? What if the purpose of the probable cause requirement and the specificity of warrants requirement was to protect the individual right to be left alone?
What if our personal rights are inalienable as the Declaration of Independence states? What if the government cannot morally, constitutionally or legally interfere with inalienable rights without a jury trial? What if the whole purpose of the primacy of the Constitution was to establish the federal government and at the same time prevent its interference with inalienable personal rights without probable cause or a jury trial?
What if we fought a revolution against a British king because his agents were interfering with inalienable rights without first proving to a court any wrongdoing on the part of those whose rights were trampled? What if because of weakness or fear or secrecy or lethargy or slick arguments, we have a new normal in the U.S. in which every person’s inalienable right to be left alone is violated by the federal government so thoroughly, quietly and continuously that we don’t even notice it until it is too late?
What if when the feds know enough about us to harm us, it will be too late? What if it is already too late? What do we do about it?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.