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Jewish World Review Feb 27, 2014 /27 Adar I, 5774 New Assaults on American Law By Judge Andrew P. Napolitano http://www.JewishWorldReview.com | n the months since Edward Snowden revealed the nature and extent of the spying that the National Security Agency (NSA) has been perpetrating upon Americans and foreigners, some of the NSA's most troublesome behavior has not been a part of the public debate. This behavior constitutes the government's assaults on the American legal system. Those assaults have been conducted thus far on two fronts, one of which is aimed at lawyers who represent foreign entities here in America, and the other is aimed at lawyers who represent criminal defendants against whom evidence has been obtained unlawfully and presented in court untruthfully. Investigative reporters at The New York Times recently discovered that the NSA has been listening to the telephone conversations between lawyers at a highly regarded Chicago law firm and their clients in Indonesia. The firm, Mayer Brown, has remained publicly silent about the revelations, as has its client, the government of Indonesia. But it is well known that Mayer Brown represents the government of Indonesia concerning trade regulations that govern exports of cigarettes and shrimp to the U.S. The lawyers on the other side of the bargaining table from Mayer Brown work for the federal government, which also employs, of course, the NSA. Can the NSA lawfully tell lawyers for the government who are negotiating with Mayer Brown lawyers what it overheard between the Mayer Brown lawyers and their client? The answer, incredibly, is: Yes. Federal rules prohibit the NSA from sharing knowledge with lawyers for the federal government only about persons who have been indicted. In this case, Mayer Brown is attempting to negotiate favorable trade relations between Indonesia and the U.S., and the lawyers for the U.S. have the unfair advantage of knowing in advance the needs, negotiating positions and strategy of their adversaries. In the Obama years, this is how the feds work: secretly, unfairly and in utter derogation of the attorney-client privilege. For 100 years, that privilege — the right of lawyers and their clients to speak freely and without the knowledge of the government or their adversaries — has been respected in the U.S., until now. Now, we have a lawyer who, as president, uses the NSA to give him advance warning of what his office visitors are about to ask him. And now we have lawyers for the federal government who work for the president and can know of their adversaries' most intimate client communications. This is profoundly unfair, as it gives one side a microscope on the plans of the other. It is unwise, too, as clients will be reluctant to open up to counsel when they know that the NSA could spill the beans to the other side. In the adversarial context, for the system to work fairly and effectively, it is vital that clients be free to speak with their lawyers without the slightest fear of government intrusion, particularly when the government is on the other side of the deal or the case. If you have spoken to a lawyer recently and if that lawyer is dealing with the federal government on your behalf, you can thank the constitutional scholar in the Oval Office for destroying the formerly privileged nature of your conversations. But that is not the only legal protection that President Obama has destroyed. In 2012, the U.S. Supreme Court heard oral argument in a case in which journalists in the pre-Snowden era challenged the government's spying on them. The government won the case largely because it persuaded the court that the journalists did not have standing to bring the lawsuit because, the court ruled, their fears of being spied upon were only hypothetical: They suspected that their communications with their sources were being monitored, but they couldn't prove it. In this post-Snowden era, we now know that the journalists in that case were being spied upon. Nevertheless, during the oral argument in that case, government lawyers told the high court that should government prosecutors acquire from the NSA evidence of criminal behavior against anyone whom they eventually would prosecute and should they wish to use that evidence in the prosecution, the Justice Department would inform defense counsel of the true source of the evidence so that the defendant would have the ability to challenge the evidence. Yet, last week, in a case in federal court in Oregon, the same Justice Department that told the highest court in the land last year that it would dutifully and truthfully reveal its sources of evidence — as case law requires and even when the source is an NSA wiretap — told a federal district court judge that it had no need or intention of doing so. If this practice of using NSA wiretaps as the original source of evidence in criminal cases and keeping that information from the defendants against whom it is used is permitted, we will have yet another loss of liberty. Federal law requires that criminal prosecutions be commenced after articulable suspicion about the crime and the defendant. Prosecutions cannot be commenced by roving through intelligence data obtained through extra-constitutional means. That is the moral equivalent of throwing a dart at a dart board that contains the names of potential defendants and prosecuting the person whose name the dart hits. For the past 75 years, federal prosecutors have not been permitted to use unlawfully obtained evidence in criminal cases, and they have been required to state truthfully the sources of their evidence so that its lawfulness can be tested. This rule generally has served to keep law enforcement from breaking the laws it has sworn to uphold by denying to its agents the fruits of their own unlawful activity. Liberty is rarely lost overnight. It is lost slowly and in the name of safety. In the name of keeping us safe, the feds have spied on the lawyers who negotiate with them, lied to the lawyers whose clients they are prosecuting and misrepresented their behavior to the Supreme Court. As far as the public record reveals, they have not corrected that misrepresentation. They have done all of this in utter defiance of well-settled law and procedures and constitutional safeguards. What will they do next? Send us feedback on this column Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. 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. Previously: • 02/20/14 An Unconscionable Silence • 02/13/14 A New Assault on Freedom of the Press • 02/06/14 Executive Order Tyranny • 01/30/14 A Sorry State of the Union • 01/23/14 Presidential Placebo • 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. 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