Congress Killed Our Privacy and Empowered the NSA

The very people in whose hands we have reposed the Constitution for preservation, protection, defense and enforcement have subverted it.

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.

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  • Fist of Etiquette||

    This "least untruthful" nonsense is not a recognized defense to the crime of perjury.

    I look forward to Clapper being prosecuted for this. Of course, he won't. There are no negative consequences to the state and its agents when they violate the law of the land, the United States Constitution. No incentives whatsoever to keep them from ignoring constitutional constraints. Not even in the light of day.

  • Nooge.||

    Let us not forget that a citizen informing the public what the government is doing is, somehow, espionage.

    This is most often explained to me by people who say they don't mind if the government sifts their personal data, as long as TERRORISTS can't do terrorism. Cuz America, fuck yeah.

    The Republic has the diabeetus, for sure.

  • Anders||

    "Let us not forget that a citizen informing the public what the government is doing is, somehow, espionage."

    What's your problem. Snowden gave information to the enemy - aka the American Public.

  • Boomer||

    When I ask such people what exactly they believe they are protecting from terrorism all I get is blank looks.

    Sad...

  • Brubaker||

    Taking legal action to remove a building that has become a public nuisance is reasonable; removing the building by torching it is not reasonable--or legal.

    Snowden knowingly chose an illegal, destructive and self-aggrandizing means to achieve what may otherwise have been a legitimate goal.

    I'm glad that these programs are receiving the scrutiny that they deserve, but I will be equally glad when Snowden receives the punishment that he so richly deserves.

  • DJF||

    But if you are a civilian and lie to a law enforcement official even if you are not under oath you will go to jail. Just ask Martha Stuart.

  • Stephen54321||

    Congress has the power to impeach Clapper in his capacity as Director of National Intelligence as per Art 3, sec 4 of the US Constitution.

    As you say they probably won't. However, a failure to do so would merely serve to undermine the authority of Congress and its ability to oversee the US government and its agencies, if only by setting a precedent which will encourage others they call before their committees to lie under oath as well should they be so inclined.

    Meanwhile they have no qualms about calling

  • ΘJΘʃ de águila||

    He was following orders.

  • Matrix||

    Maybe they don't have the authority, but they do it anyway.

  • Nooge.||

    Yeah, but terrorists and stuff. What's principle matter if we're thwarting terrorists?

  • ||

    http://www.businessweek.com/ar.....n#r=hpf-st

    Will Booze Hamilton become a leitmotif like Haliburton?

  • Floridian||

    Rufus,
    I tried to watch duck soup the other day. It was just awful.

  • ||

    You sound like my wife!

    Forza Freedonia Forever!

  • Floridian||

    I thought your handle was interesting so I googled it and found duck soup. I hoped it would be some cult libertarian movie. I didn't finish it. Does it turn into a cult libertarian movie?

  • ||

    No clue at all. I don't know what libertarians like. Ask one of them. Not sure if they accept me into their tribe.

  • Floridian||

    I can't really criticize your taste in movies. My guilty pleasure is the resident evil franchise. I know it is awful but I can't help myself! (Sobs)

  • ||

    We all have guilty pleasures.

  • Ramjet||

    In spite of his hair, I really like the judge.

  • ||

    Lies and secrecy are the currency of tyranny.

  • sarcasmic||

    The giant is a public that has had enough of violations of the Constitution and lies to cover them up.

    Wishful thinking. The public will continue to reelect ninety-odd percent of incumbents, continue to elect only people from team Republicrat (or is it Demopublican?), and continue to pay more attention to American Idol than to the fate of their country.

  • Loki||

    American Idol? Pffft, that' sooo last year. It's all about The Voice, that racist redneck TV chef, and Kim Kardashian's baby. Jeez, try to keep up. /American Public

  • sarcasmic||

    I can't remember the last time I watched network television.

  • Gordilocks||

    It's definitely a good thing that you don't remember what you saw, either.

  • ||

    Which chef would that be? They all seem to be Brits.

  • DenverJay||

    This! A thousand times this! The American public could care less, as long as they get their bread and circuses. The story is now about "where's Edwardo" and the scandal isn't what the NSA has been doing, or the lies Clapper told, but why Obama wasn't more personally involved in getting Snowden extradited. The Republic is dead, ladies and gentlemen, and it is not coming back.

  • Stephen54321||

    It's noteworthy that members of Congress, from both chambers and both sides of politics, have chosen to call for Snowden's prosecution yet have failed to do the same for Clapper or Alexander. Even Senator Wyden has apparently backed away from calling Clapper's response a lie, let alone perjury. They want to hold Snowden to account for his breach of federal secrecy laws yet they are unwilling to hold to account those who would lie under oath to Congress and its committees.

    President Obama cited Congressional oversight as a justification for allowing the surveillance programs to exist at all, yet perjury by its very nature undermines such oversight, and all the more so when it comes from persons of such seniority as Clapper and Alexander. It poisons the well from which Congress draws its information about US agencies and their programs.

    Consider Clapper. His very willingness to lie under oath in such a public fashion now means that not one word of any testimony he has given prior to this or which he may give in the future can now be taken, at least at face value, to be the truth, and therefore as providing a true and honest testament of what is going on inside the NSA and other US intelligence agencies.

    Worse, because he is the overall head of the US intelligence agencies that in turn ALSO casts doubt on the inherent truthfulness of any statements his subordinates might make as well.

  • Stephen54321||

    Given the nature of the FISA court, it would seem fair to ask whether such a body, despite the use of "court" in its title, is actually a judicial body at all and not merely another arm of the executive government such as the board of governors of the Federal Reserve. That is to say, a body which exists not so much to enforce the law, let alone constitutional law, as to facilitate the policies of that government, in its case by endowing those actions with legal legitimacy via the aura of (pseudo)-judicial sanction.

    After all, the inherent secrecy of the body, the inability of those its decisions are aimed at to challenge the decisions of that body, whether in the FISA court itself or through some sort of appeals process, would seem to breach the due process provisions of the Fifth Amendment, if nothing else..

    That in turn would raise potential constitutional questions of other sorts. For if the FISA court is not a validly constituted judicial body, it could then be argued that the statute which established it was not a validly enacted statute under the Constitution of the United States. Striking that enactment down would undermine one of the key pillars on which the US surveillance state has been erected and either force the US government to use the more usual courts when seeking warrants for the NSA or be in breach of the Fourth Amendment.

  • umh||

    You have nailed it now someone needs to skin it. The biggest question I have is how can it be constituional if it's all done in private.

  • umh||

    While it's not the biggest problem with government spying the fact that we are wasting so much money funding this spying is just killing this country. I'm sure that most of the readers here can think of ten better things to spend the NSA budget on.

    We lose more lives to traffic fatalities every single year than have been lost in the whole war on terror. Why don't we strip the money from the NSA and fix bridges and put in some nice guard rails.

  • mgmue||

    Another interesting use of the language is the whole "nobody is listening" excuse. So are they avoiding the fact that what is said or wrote is analyzed as well as your relationships. Perhaps by computer, but also certainly listened to. Listening for key words, is still listening after all.

  • CrowdfundingGuide||

    If you're worried about your computer privacy, this new software is really cool. Its called 'HiddenToolbox' and basically allows you to hide your personal files so that they are invisible to anybody but you. Say goodbye to prying eyes and/or thieves stealing your information. Check out this article --
    http://www.crowdfundingguide.c.....ying-eyes/

  • Solidus||

    Back in the day, when I was a young cold war warrior, I believed the player card was easy to read-inside the USA; FBI-Outside USA; CIA-Eavesdropping; NSA-Drugs; DEA. I was wrong. Even then the Constitution was being trod upon, for our own good, of course. Back then, though, the government had do be more circumspect because most judges still believed in the Constitution. Today, if one manages to become labeled as a 'Constitutionalist' one is placed on a terror watch list. It is shocking how fast the demise has come. One attack in NY, one in D.C.; a quick 'Patriot Act' and, magically, the Constitution, one Amendment at a time, is dead. It is music to my ears to listen to the hue and cry and I pray it is not too late. Nice post, Judge! http://coldwarwarrior.com/

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