Beware the NSA’s Ongoing Witch Hunt

What happened to our inalienable right to be left alone?

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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Fist of Etiquette||

    How can the Judge talk about the Fourth Amendment at a time like this when the GOP has shut down the government, forcing White House tour groups and WWII veterans alike out onto the street?

    If we must waste our time on this phony scandal, let me remind everyone of the clause in the Constitution (I think it's somewhere in the back) that says if the government says a program is necessary and effective, the Bill of Rights is considered suspended for that program.

  • DJF||

    I think its the commerce clause which says that if the government does not spy on everyone then this effects commerce so government spying is not only needed, its required. Also the equal protection provision means that if the government spies on one person it must spy on everyone. Also spying on Americans is part of the taxing power of the government and not a punishment so its part of the basic function of government.

  • Lady Bertrum||

    The scary thing is this sounds like an actual argument some progtard would make. Stop giving them material.

  • Smilin' Joe Fission||

    I'd bet that this is a prog's talking point somewhere out there.

  • Drax the Destroyer||

    This entire commerce clause mis-reading brought to you by public education and the subsequent hurricane flood-waves of illiteracy.

  • Loki||

    hurricane flood-waves of illiteracy

    Hurricane flood waves = Hurricane Katrina. Which as we all know hit New Orleans, which has a high population of poor black people.

    NO also has a high rate of illiteracy, especially amongst the impoverished black community. Therefore your comment is RACIST, straight up. Possibly the most racist thing ever said on the internet. /Joan "Derpmaster" Walsh

  • jolieena||

    I just want to add my story. I get paid over $87 per hour working online with Google! I work two shifts 2 hours in the day and 2 in the evening. And whats awesome is Im working from home so I get more time with my kids. Its by-far the best job I’ve had. I follow this great link http://cuttr.it/ukvczrq

  • Ted S.||

    On the face of an all-knowing secret government are large and awful eyes -- and no smile.

    I think they're very happy to oppress us, Andy.

  • Snark Plissken||

    On the face of an all-knowing secret government are large and awful eyes -- and no smile.

    All-knowing and all-incompetent--unable to stop a couple of Chechen two-bit terrorists that they were specifically warned about by the Russians. Unable to catch them even after putting the whole city on double-secret lockdown.

  • DJF||

    And their spying did not even find the whistleblowers inside their own agencies. They had to wait until the read it in the newspapers.

  • Metazoan||

    You're assuming that their goal was to stop the terrorists.

  • db||

    Let's face it: the Constitution was written by terrorist revolutionaries* to make the job of future terrorist revolutionaries easier.

    Why would any sane non-terrorist non-revolutionary consent to constrain the State according to terrorist revolutionary rules?

    *by current definitions of "terrorist revolutionaries"

  • Drax the Destroyer||

    Let's not forget that these revolutionaries were racists so we should listen to them EVEN LESS.

  • Pro Libertate||

    Keep beating the drum. Other news may take precedence at times, but these abuses of power need to be fought, whether it's this, IRS abuses, etc.

  • sarcasmic||

    All together now...

    Fuck
    You
    That's
    Why

  • Invisible Finger||

    The Libertarian Party really should change its name to this.

  • Bardas Phocas||

    Note: they haven't stopped.
    They (the facist bullyboys/Ministry of Love) are using their hunt for Snowden to get everyone's emails.
    http://arstechnica.com/tech-po.....s-ssl-key/
    The American government obtained a secret order from a federal judge in Virginia demanding that Lavabit hand over its private SSL key, enabling authorities to access Edward Snowden’s e-mail, and e-mail belonging to Lavabit's 400,000 other users as well. That sealed order, dated July 10 2013, was first published on Wednesday by Wired reporter Kevin Poulsen.

  • Rich||

  • ||

    Bald faced liar, engaged in criminal activity, complains that his power to engage in such activity has been reduced.

    I remember a lengthy lecture from some history class, I forget which one, in which the professor explained that what oppressive governments fear the most are the people they oppress. He then gave a zillion examples of how those governments would justify their tools of oppression by blaming boogeymen and other foreign governments.

    If you examine almost everything this government has done through that lens, it fits perfectly. Trashing the 4th amd., militarization of the police, ruler that rules by decree, secret courts, nationalization of healthcare, crippling private property rights, class warfare and race baiting to divide us, indoctrination in schools....the list goes on and on. Take all of that away and we still would have no foreign nation to fear. It is all aimed at us.

  • Rich||

    “This is a dreamland for foreign intelligence services to recruit,” he said, pointing to the economic hardships.

    Any more Snowdens are the Republicans' fault!

  • Drax the Destroyer||

    Never trust a guy whose last name sounds like a crappy 80s product and/or STD.

  • DJF||

    So they don’t count intelligence agents as vital employees while they do count as vital security guards keeping WW2 vets from visiting the WW2 memorial

  • Fatty Bolger||

    Don't believe it for one second. The spying has not stopped. Clapper is just being a good little kabuki dancer.

  • DJF||

    “”””Gen. Alexander said: “We have over 960 Ph.D.s, over 4,000 computer scientists, over a thousand mathematicians. They are furloughed. Our nation needs people like this.””””

    Yes, our country needs them doing real productive work, not useless mass spying on the American people.

  • ||

    An excellent fleshing out of what I have said many times; That this government is deeply engaged in criminal behavior, to the point of de-legitimizing itself. All they are anymore is an organized gang of thugs looting and bullying us into submission.

  • sarcasmic||

    "Consent of the governed" is so quaint.

  • Rich||

    Nice band name, though.

  • Drax the Destroyer||

    "Contempt of the Governed" is better.

  • Rich||

    Agree.

  • Invisible Finger||

    "Consent Of the Coerced"

  • Libertymike||

    James Clapper is fairly representative of the truism that force attracts the dregs of humanity.

    The best and the brightest and the most virtuous among us would never, ever even contemplate donning a clowned costume courtesy of the state.

  • Neoliberal Kochtopus||

    See Scotsman, No True; Fallacy of

  • Libertymike||

    See, generally, false invocation of logical fallacy.

  • SomeGuy||

    The marine corps and police force is better example -_- Horrible people. Also they specifically hire dumb naive kids.

    The have troops that go around asking for a can of A...I...R -_- fucking morons

  • WTF||

    The purpose of that requirement is to prevent witch hunts and inquisitions and knocks on doors in the night.

    Oh, hell, they don't just "knock", they break in at 3am with guns blazing and flash-bangs going off.

  • Drax the Destroyer||

    You forgot their penchant to break into the WRONG houses and murder DOGS and CHILDREN with impunity.

  • SomeGuy||

    all have worse accuracy than a 10 year old kidding leaving how to shoot a rifle for the first time.... 250 rounds and not one hit -_- or was there a hit or two...either way wtf!

  • Will Nonya||

    The real ickle in the pickle is that if the FISA courts were somehow declared unconstitutional then any convictions resulting from information they obtained would be thrown out or retried.

    That combined with the governments innate desire to retain whatever power it can means we are unlikely to ever see anything come of this.

  • SomeGuy||

    very true but would never happen....why? recreation of evidence....you know that is legal and all -_-

  • loellaviles||

    my friend's sister makes =$­8­0= an hour on the laptop. She has been fired from work for seven months but last month her pay check was =$­1­2­7­4­1= just working on the laptop for a few hours. here are the findings...

    http://WWW.WORKS23.COM

  • SomeGuy||

    uhh reason there is 30,000-300,000 thousand federal crimes and no one even nows the exact number twice they tried to count it but they couldn't

  • wilonacoury||

    my roomate's sister makes $78 hourly on the internet. She has been laid off for 6 months but last month her income was $16950 just working on the internet for a few hours. go to this site
    http://WWW.WORKS23.COM

  • wooffjordy||

    Start working at home with Google! It's by-far the best job I've had. Last Wednesday I got a brand new BMW since getting a check for $6474 this - 4 weeks past. I began this 8-months ago and immediately was bringing home at least $77 per hour. I work through this link, go to Economy tab for more detail ...

    =============== http://WWW.MAX34.COM

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement