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Jewish World Review
Jan. 23, 2014/ 22 Shevat, 5774
Judge Andrew P. Napolitano
When President Obama chose a Friday before a three-day holiday weekend to address a matter as profound as the NSA spying scandal, I suspected he would raise issues that he hoped the media would ignore. That's because the Reagan White House did a study in the early 1980s and concluded that Fridays are low-value news days and thus a good time to bury the lead, so to speak. Every president since then has followed that lead.
Instead of addressing the massive violations of the natural and constitutionally protected right to privacy, instead of acknowledging that but for the personal courage of Edward Snowden his administration would still be pulling the wool over our eyes, instead of reestablishing the serious constitutional and civil liberties bona fides he established for himself as a U.S. senator, the president defended his massive spying as a necessary tool in the fight to maintain national security and offered only a placebo to its critics.
Just how massive is this scandal? The Washington Post has reported that the NSA hacks into 500,000 American buddy lists and 600,000 American address books every day, and the Guardian of London reported last week that the NSA seizes 200,000,000 American text messages every day. This is in addition to seizing the content of all cellphone- and landline-generated telephone conversations and copies of all emails sent or received in the United States. And all of that is in addition to seizing all bank records, utility bills and credit card bills of everyone in the United States.
By not addressing or refuting any of this, the president obviously plans to continue it. He also plans to reject the most basic principles of American government. If the government derives its powers from the consent of the governed, as the Declaration of Independence declares it does, and if the governed lack the lawful authority to hack and seize our neighbors' texts and phone calls and utility bills, how could we have given that authority to the government?
In the president's world, that's an easy question to answer: Do it in secret. Enact legislation that lets a dozen NSA-sycophantic members of Congress speak for the legislative branch, tell only that dozen about the spying in secret and swear them to secrecy. Enact legislation that lets a dozen secret judges issue search warrants based on the government's wishes rather than probable cause, and seek permission from any one of those judges in secret and swear them to secrecy. And then in public deny and lie and change the subject.
In a thinly disguised effort to change the subject, Obama's Friday speech focused on where the seized data is stored, rather than on whether the government in a free society is empowered to collect it. He proposed that the data seized by the NSA be stored at non-government locations that he did not identify and kept there and be made available to the NSA after approval by the secret Foreign Intelligence Surveillance Act (FISA) court.
Even if a third party capable and willing to store this data could be found, the additional step to the FISA court is no additional constitutional protection whatsoever. Every federal and state court in the United States follows the constitutional requirement that whenever any government is seeking a search warrant to conduct surveillance, the government must present particularized evidence identifying its target, and the evidence must constitute probable cause of criminal behavior on the part of that target; every court, that is, except the FISA court. That court issues general warrants that do not name a target and are based on the NSA's wishes, rather than evidence of probable cause.
So, that silent exhale of relief from the NSA last week was generated by the realization that this third-party storage proposal will not restrict the massive spying one iota.
Added to this placebo is the president's proposal to employ a Defender of the Constitution (what a great job title!) to appear before the FISA court, along with lawyers for the NSA, and argue against the NSA's wishes. This is another diversion that would add another level of unconstitutional and irrelevant complexity to the present scheme.
In the present scheme, the persons on the FISA court may be federal judges, but they are performing clerical functions, not judicial functions. That's because, unlike state courts, which are courts of general jurisdiction, the jurisdiction of all federal courts can only be invoked when there are real cases and controversies brought to them. If the Defender of the Constitution appeared in front of the FISA court, he or she could only do so by representing a real client in a real dispute with the federal government. But the NSA does not identify its targets, much less deal with their lawyers. The president's proposal would turn this non-court court into a law school moot court exercise.
His third proposal adds insult to injury. He offers to stop the NSA from doing to foreign leaders what it has been doing to Americans. No doubt, that is to enable him to save face with his selfie-snapping European colleagues. But it hardly smacks of understanding the problem of massive spying. It may be an insult to spy on his fellow heads of state, and it may affect diplomacy with them, but stopping it hardly enhances the natural right to privacy of the rest of us.
This mass spying is uniquely and profoundly un-American and will continue to undermine our freedoms. I am not arguing here that all spying is illegal — just that spying on all of us is illegal. Why bother with the formality of warrants when they permit all spying all the time? Spying on anyone not named in a warrant, or employing a warrant not based on probable cause, is the hallmark of those totalitarian regimes against which we have fought our just wars and our cold wars. Yet today, the government in America seems more like the former enemies we vanquished than the place of life, liberty and the pursuit of happiness the Framers established.
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Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network.
• 01/16/14 Tyranny masquerading as liberty from a clueless 'constitutional expert'
• 01/09/14 Spying on Congress
• 12/19/13 Almost Orwellian
• 12/12/13 A Conspiracy So Vast
• 12/05/13 The Pope and Basic Economics
• 11/28/13 What if Thanksgiving Exposes the Government?
• 11/21/13 The Shutdown and the Rollout
• 11/14/13 Freedom and Federalism
• 11/07/13 End Runs Around the Constitution
• 10/31/13 Spying on the President
• 010/24/13 A Government of Secrecy and Fear
• 010/17/13 Debt and Destruction
• 010/10/13 Before You Rejoice...
• 010/02/13 Government Looking for Witches Will Find Them
• 09/26/13 Is the FISA Court Constitutional?
• 09/19/13 Spying and Lying
• 09/12/13 The President's Embarrassment
• 09/05/13 War, War, What is it Good For?
• 08/08/13 Domestic Spying Is Dangerous to Freedom
• 08/01/13 Liberty's Backlash
• 07/25/13 Liberty and Safety
• 07/18/13 Double Jeopardy
• 07/11/13 Above the Law
• 07/04/13 Jefferson Weeping
• 06/27/13 The Truth Shall Keep Us Free
• 06/20/13 Fidelity to the Constitution When We Need It
• 06/1313 Liberty in Shambles
• 06/06/13 What if Laws Applied to Everyone?
• 05/30/13 An Assault on Freedom of the Press
• 05/23/13 Tyranny Around the Corner
• 05/17/13 Storm Clouds Gathering
• 05/09/13 Why We Should Mistrust the Government
• 05/02/13 More Holes in the Fourth Amendment
• 04/25/13 Boston and Freedom
• 04/18/13 Taxation Is Theft
• 04/11/13 Drones, Guns and the President
• 04/04/13 When the Government Goes Bankrupt
• 03/28/13 Hope for the Dead
• 03/21/13 No More Asking for Permission To Speak
• 03/14/13 What if Nanny Is a Thug?
• 02/28/13 Obama's False Alarms
• 02/14/13 Obama's Secret Court for Killing
• 02/07/13 Obama Gives Himself Permission To Kill
• 01/31/13 Both sides in immigration debate overlook main issue
• 01/24/13 Guns and the President
• 01/17/13 Guns and the Government
• 01/10/13 Guns and Freedom
• 12/13/12 Government Spying Out of Control
• 12/06/12 Republicans for Big Government
• 11/29/12 Republicans and Taxes
• 11/15/12 Silencing General Petraeus
• 11/08/12 Four more years to crush personal freedoms
• 10/25/12 Silence on Libya
• 10/18/12 Who Is Responsible for the Mess in Libya?
• 10/11/12 Let Gary Johnson Debate
• 10/04/12 Two Failures
• 09/27/12 The Arab Spring Becomes a Western Winter
• 08/23/12 Abortion and Rape
• 08/16/12 November's Choices
• 08/09/12 Gazillions
• 07/19/12 The Rule of Law
• 07/12/12 We Are at a Turning Point
• 07/03/12 A Vast New Federal Power
• 06/28/12 Restraining Arizona, Unleashing the President
• 06/21/12 Can the President Rewrite Federal Law?
• 06/15/12 Squealing Versus Killing
• 06/07/12 Where Is The Outrage?
• 05/31/12 The Secret Kill List
• 05/24/12 What If We Have Only Memories of Freedom?
• 05/17/12 Is There a Drone in Your Backyard?
• 05/10/12 What Constitutes a Fair Trial?
• 05/03/12 The President's Private War
• 04/26/12 Rick Perry Was Correct
• 04/19/12 A Government of Waste
• 04/12/12 What If the Government Rejects the Constitution?
• 03/29/12 Can the Government Force You To Eat Broccoli?
• 03/22/12 Is the CIA in Your Kitchen?
• 03/15/12 Can the Secret Service Tell You To Shut Up?
• 03/08/12 Can the President Kill You?
• 02/23/12 What If Democracy Is Bunk?
• 02/16/12 Time To Tame the Federal Beast
• 02/09/12 Do Catholics Have Too Many Babies?
• 02/02/12 What Is a Just War?
• 01/25/12 A Few Words About Abortion
• 01/20/12 How Much Economic Freedom Do We Have in the United States?
• 01/12/12 What If Elections Don't Matter?
• 01/05/12 Big Government Cannot Pay Its Bills, Again
• 12/29/11 The Case for Austerity
• 12/22/11 New Ideas or Fidelity to Old Principles?
• 12/15/11 The Government as Lawbreaker, Again
• 12/08/11 What if our rights didn't come from the Almighty or from our humanity, but from the government?
• 12/01/11 Can Congress Steal Your Constitutional Freedoms?
• 11/24/11 What if the Constitution No Longer Applied?
• 11/17/11 Congress and Secrecy
• 11/10/11 Does the Government Work for Us, or Do We Work for the Government?
• 11/03/11 Look at What the Government Has Done with Your Money
• 10/27/11 What Have the Wars Done for You?
• 10/20/11 Is Freedom in America a Myth or a Reality?
© 2012, ANDREW P. NAPOLITANO
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