How Can the NSA Spy on Merkel, the Pope, the U.N., and the Rest of Us?

The federal agency is out of control.

Two weeks ago we learned that the National Security Agency (NSA) has been spying on the chancellor of Germany and on the president of the United States. Last week we learned that it has spied on the Pope and on the conclave that elected him last March. This week we learned that it also has spied on the secretary general of the United Nations and has hacked into the computer servers at Google and Yahoo.

What's going on?

President Obama, who has yet to address these outrages to serious questioners, must know of them, because apparently he has gotten into the habit of wanting to know in advance what is on the minds of those with whom he is scheduled to meet. The New York Times reported recently that it learned from NSA whistleblower Edward Snowden that the NSA happily told Obama what U.N. Secretary-General Ban Ki-Moon was planning to ask him well in advance of when he asked it. The NSA could have learned that only from its surveillance of the secretary general's personal cellphone calls, emails and texts. It seems the NSA is providing this service to its clients, and chief among them is the president.

Also among them are other parts of the government, such as the Department of Justice, the IRS, the FBI and the Department of Homeland Security. This is where we find even more dangers to personal freedom than the constitutional violations and personal privacy outrages visited on all Americans and on foreign officials. The NSA claims it can operate outside the restraints of the Fourth Amendment. The NSA and its congressional apologists have argued that because its task is essentially to gather foreign intelligence for national security purposes only, and because the Fourth Amendment, which requires detailed language in search warrants particularly describing the person or place to be searched and the person or thing to be seized, only restrains the government when it is engaged in criminal prosecutions and not when it is on a fishing expedition for intelligence purposes, the Fourth Amendment does not restrain the NSA.

Yet, the plain language of the Fourth Amendment protects everyone in America from government intrusion in their persons, houses, papers and effects, whether the government is looking for evidence of crimes or of evidence of sophistry. The NSA's argument that the Fourth Amendment only regulates criminal prosecutions is nonsense. It never has seriously been made to or accepted by the Supreme Court, and it defies what we now know about the client list of the NSA. Its clients consist surely of the 15 or so other intelligence agencies in the federal government. But its clients are also the premiere federal agencies that decide whom to prosecute. In order to decide whom to prosecute, these agencies need to examine evidence. And if the evidence they are examining has come through extra-constitutional means, these agencies are destroying the fabric of liberty they have sworn to uphold, which includes the use of only lawfully and constitutionally gathered evidence.

The NSA's own behavior defies its argument that so long as it is not involved in obtaining evidence for criminal prosecutions, it is free to use extra-constitutional means to gather data. The whole purpose of the Fourth Amendment is to prevent the government from going house to house without probable cause until it finds evidence of a crime -- as British soldiers did to the colonists -- and then using that evidence in criminal prosecutions. But if the NSA can go from computer to computer without probable cause until it finds what it wants -- and turn some of that evidence over to law enforcement -- the Constitution's protections effectively have been short-circuited.

Why does the government, which has sworn an oath to uphold the Constitution, find ways to short-circuit it? The answer goes to the nature of government. Even in a free society, government always grows, always expands and always wants to control more human behavior. But government that operates in secrecy, where no one can see it and criticize it, will do whatever it can get away with -- like spy on the Pope, share unconstitutionally acquired evidence with law enforcement or sate the president's curiosity.

As if all of this were not bad enough, we learned just a few days ago that the NSA has hacked into the enormous computer servers of Google and Yahoo. These two companies, which have been coerced into and rewarded for their cooperation with the NSA, have now been betrayed by their spying partners in the government. They must have been gullible enough to believe that all NSA access to their hardware had been by consent or at least by court order and with their knowledge. It is almost inconceivable that any judge of the FISA court ordered hacking, as that is expressly prohibited by federal statute. Hacking is criminal no matter who orders it.

Even some of the president's congressional supporters now acknowledge that the NSA is out of control and destroys more liberty than it protects.

Why would the NSA do all of this? Because in secret it can cut constitutional corners with impunity. And it no doubt believes it is easier to tap into the telephones and computers of all 330 million of us who live in the United States in order to monitor the few dozen among us whom it really wants to watch than to develop probable cause against its true targets as the Framers intended and the Constitution expressly requires. And as well, who knows what teasing cute morsel its agents can deliver to the president before his next Oval Office visitor arrives?

Is this the government the Framers gave us? Is this the government to which we consented? Is this the government most conducive to personal liberty in a free society? The answers are obvious.

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.

  • JidaKida||

    There is a dude that seems to know whats going on.

    www.Privacy-Road.tk

  • ||

    I dont understand why all the fuss about us spying on furriners. That is the NSA's job. Illegally spying on the american people is the problem.

  • Drake||

    Yep - It's fun to see them getting pissed off, but that isn't the point.

  • DJF||

    Yep, this is no surprise since spying on foreigners is the job of the NSA and they spend billions doing it. All the outrage about this is like being shocked that gambling is going on at Rick’s Café

    Unlimited spying on Americans by the government on the other hand is suppose to be against American law but unfortunately such laws are enforced by the same government and they don’t appear to be going to do that anytime soon. Even the so-called court which is suppose to over see this spying is not a real court since only one side, the government provides the evidence

  • Rich||

    You basically answered your own question, Suthenboy. Pay attention to the foreign hand, as the domestic hand picks your pocket.

    And even if spying on furriners *is* the NSA's job, there are plenty of "furriners" living and working here amongst us, if you catch my drift.

  • Live Free or Diet||

    Foreigners or not, where the Constitution controls, the Constitution applies. "The right of the people" does not say "the right of the native-born," nor "the right of the citizen," nor even "the right of the legal permanent resident."
    If you live here, it applies to you.

  • Heroic Mulatto||

    Well, in that case, thank goodness we have an FBI to conduct domestic intelligence gathering and is tasked with sharing their information with the NSA!

    No orifice left behind!

  • sarcasmic||

    You should know by now that the Constitution doesn't mean what it actually says. It means whatever the Nazgul says it means. Sheesh. Where have you been?

  • Live Free or Diet||

    Sheesh. Where have you been?

    Watching in horror.

  • Rich||

    Show me in the Constitution where "furriners" are to be considered as "people".

  • Live Free or Diet||

    Hell, for a long time they claimed the "people" in the 2nd Amendment meant "government."

  • Arn0||

    Because it is illegal under both international and US law ?

    Because it is illegal under the law of those foreign country ?

    Because the right to be left alone is a natural right that's worth for every human being ?

    Because the declaration of independence says "every men are created equal" and not "every Americans are created equal" ?

    Because spying on foreigners is indirectly spying on every american that have contact with those foreigners ?

  • Cdr Lytton||

    Thank you Suthenboy. I've been thinking the same thing every time another NSA spys on XXX foreign governement story appears.

    My objection level (from most to non-existant) is spying on Americans, ordinary foreign individuals, foreign governments, foreign leaders. If they weren't spying on Merkel or Putin or Assad, I would be pissed.

  • Mark22||

    Legally, I don't have a problem with the NSA spying on Merkel or the Pope. But the fact that the NSA is successful at doing this shows that it is too big and out of control. Its budget should be cut to the point where it can only afford to spy on clear and immediate threats, and neither Merkel nor the Pope qualify.

  • Heroic Mulatto||

  • DJF||

    I am waiting for the follow on story where they charge the father with neglect because his son died.

  • Live Free or Diet||

    They'll send him a bill for the cost of recharging the Taser, for wear and tear on the cuffs, and for the cop's overtime.

  • gaoxiaen||

    Aggraveted assault, disobeying a lawful order and resisting arrest.

  • gaoxiaen||

    *aggravated

  • ||

    I'm not sure how a person can live through that without wanting to slit that assholes throat in front of his kids. I'd almost be willing to settle for manslaughter charges if there was a snowball's chance in hell this would make it to trial.

  • Loki||

    I'm not sure how a person can live through that without wanting to slit that assholes throat

    Same here. I'm pictureing something like the scene in Braveheart where Wallace and his followers storm the local castle and he drags the lord or magistrate or whatever he was out to the post where his wife was executed and slits the bastard's throat without saying a word.

    Just substitute the castle with the police station, the magistrate with the asshole cop, and the executioner's post with the site of the father's burned down home. You get the idea.

  • Ted S.||

    The answer to Andrew Napolitano's question is, "Because fuck you, that's why."

  • Raven Nation||

    Personally, I'm surprised it took an hour and forty minutes after the story posted for this comment to appear. In fact, that could have BEEN the whole story.

  • wareagle||

    I believe the delay in that comment appearing makes us all Cleveland Browns' fans today.

  • Raven Nation||

    With perhaps an exemption for those in the Mountain & Pacific zones.

  • Rich||

    Yet, the plain language of the Fourth Amendment protects everyone in America from government intrusion in their persons, houses, papers and effects, whether the government is looking for evidence of crimes or of for evidence of sophistry.

    This never would have slipped through when you-know-who was around.

    evidence of sophistry

    Nice band name.

  • db||

    Consent's a thing for loveplay and cattle!

  • gaoxiaen||

    So you ask your cow to moo as an indication of consent?

  • Firstname||

    Mr. Natpolitano left out the fact that the NSA also shares info with the DEA and is one of the biggest contributors to the failed war on drugs.

  • ||

    Don't give a flying fuck about the Pope or Merckel.

  • R C Dean||

    Yup. Sovereigns are on their own.

  • Jerryskids||

    So this isn't the government we consented to? What difference, at this point, does it make? As long as we roll over we get the government we deserve and I have a bad feeling we deserve a government that doesn't give a rat's ass what we consent to. Until we physically stand up to these thugs we're going to keep getting thumped.

  • triclops||

    The Google and Yahoo revelations Are very damaging to their business, and only serve to speed up the fracturing and weakening of the internet when every country decides they want to control their own internet.
    Most transparent administration ever meant something other than I thought it did.

  • wadair||

    Two weeks ago we learned that the National Security Agency (NSA) has been spying on the chancellor of Germany and on the president of the United States.

    Sometimes I wonder--at the risk of turning into a conspiracy theorist--just who is in charge of the government.

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  • ME98||

    Instead of cow-touwing to Foreigns, where is the outrage at what the NSA is illegally doing to Americans? All those Government and Contractors involved in breaking the law should be tried and convicted. Instead, the Government continues to attempt to generate additional laws that makes it appear legal to steal these rights away from law-abiding citizens. They learned from tricky-Dick and Clintons (I did not have sex with that woman; What does it matter...) by creating new and specious definitions for terms to justify their illegalities. Where does this slippery slope stop?

  • ME98||

    NSA has put hardware chips into the computers and phones; they have worked with NIST to distort Standards Development; introduced Software backdoors into every new computer and phones; they have threatened Professors and activists that speak-out; they have Bribed & Bullied all the TeleComms and technology companies into doing their bidding (or forced them into bankruptcy and closure if they refused); they have found ways of subverting SKYPE and TOR Project on their EgotisticalGiraffe Program (using taxpayers money to buy ads and seed them around TOR websites); created MITM programs so people cannot know if they are communicating to the right entity; hacked the financial records of Americans (and foreign businesses); sold our private info to the Israelis and others (so they could get them to spy on Americans also); they place malware on websites; they have illegally gathered-up Phone Records on millions of Americans and hundreds of e-mails; they have illegally tracked GPS Positions; they have subverted the Apple iPhones (and probably other makers) such that they can capture everyone's Fingerprints; etc. What is next? There is chatter on the Internet saying that NSA has been covertly uploading Child Pornography to activist's computers and then sending the FBI over there to arrest them for having it. The Government will soon be saying that it is legal to force the medical industry to provide everyone's medical records, insurance files, and DNA.

  • ME98||

    The main point that the Congressmen and Senators, as well as the Intelligence Heads, are missing is that this is all UNCONSTITUTIONAL. It does not matter if it was effective; it does not matter how many people might have died in other countries (that are not governed by USA Constitution). These types of justifications for stealing-away American’s Rights are specious and foolish. The Constitution does NOT apply only when it is convenient. This is our Constitution and Bill of Rights that the NSA and other Intelligence Agencies are subverting and trampling. Each and every person, at all levels, who were involved in illegally subverting the Constitution in any large or tiny matter should be tried, convicted, and imprisoned. Take away their Rights and see how they feel about it. Why isn’t the Supreme Court protecting Americans on this matter? The Congressional sycophants protecting and campaigning for their abuse of our Constitutional Rights should be thrown out of office (e.g. Feinstein; Chambliss; etc.).

  • ME98||

    Obviously (despite Obama's lies), since we know from recent Snowden Leaks that the DEA and NSA have collaborated with almost all of these Tech companies. We also know from this week’s FISA Court info release that they claim not a single Telephone company has contested the legality of such NSA demands before opening the info vaults. We know from Brazil, France, Germany, Spain President/PMs snub of Obama that NSA targets foreign companies (like Petrobas) and undertakes illegal spying to achieve unfair commercial benefit for USA over foreign competitors. With the help of the equipment manufacturers, NSA has used their Prism Program to gather Internet data on Americans; already hacked all of the iPhones (and other mobile phones on the market), facsimile machines, etc. to illegally listen in on conversations of foreign politicians, as well as conversations by American citizens and foreigners. We can also assume that the NSA also worked closely with Apple (and perhaps Samsung-USA) in advance of launch their handsets such as iPhone-5S. This is to ensure that the millions of customers worldwide who embed their fingerprints into their iPhones are helping the NSA and Interpol to build jumbo, international Fingerprint Libraries matched to their Names, Addresses, and Phone Numbers. Apple's own notes about its Touch ID system on its site say that Touch ID will incrementally add new sections of your fingerprint to your enrolled fingerprint data to improve matching accuracy over time.

  • ME98||

    Some people make ignorant or belittling comments about ‘tinfoil hats’ just to feel good about themselves or win this argument. However, others understand their Constitution and the Bill of Rights. The Government already has my Fingerprints, and my DNA (I am a Retired Serviceman who devoted 21-years to defending your rights and our way of life). I am not worried personally. However, if you allow the Government to start down this slippery slope of taking away our every Constitutional Right and Bill of Rights protections where does it end (e.g. NSA is now saying that Americans have no right to privacy (right to be let alone), and have no right to protection against self-incrimination (5th Amendment), and have no right to protection from unreasonable search & seizure (4th Amendment); and no right to due process (parts of the Patriot Act takes away our 14th Amendment); etc.)? Regardless of whether or not you are comfortable with so easily giving up your rights, do I have a right in America to keep mine protected?

  • ME98||

    Last month NSA admitted that they were collecting your phone records; 4-weeks ago they admitted they were collecting your Internet browsing history; then it was found that NSA infiltrates American technology companies to spy on their technical developments and subvert hardware & software designs; 3-weeks ago they admitted they were reading your mail and had access to your computer files; 2-week ago they admitted they were tapping your telephones; this week it was found that they are attempting to force University Professors to stop commenting about NSA; on 2 October General Alexander admitted that NSA uses Telephone GPS to track the locations of all Americans. NSA has been using Taxpayers money to buy Ads from display companies such as Google and seeds them around Net Privacy companies using TOR access points so that every time a law-abiding citizen visits that website, they match the cookie with the Browser (regardless of whether or not you change IP Address). They place malware viruses on Websites such that anyone using Firefox packaged with the Tor would be accessed by NSA (EgotisticalGiraffe Program). They purposely redirect Internet Users through their NSA Servers to slow down the traffic, thereby discouraging those Users from using the Tor sights.

  • ME98||

    Thus, they illegally contravene the Constitution to track all users, and destroying all Internet Privacy. General Alexander admitted that NSA is collecting supplemental data on Social Networks; illegally-gathering bulk Buddy-Lists and E-Mail Address Books (frequently from overseas hubs – so they can bypass Constitutionality); they are distributing American’s raw and unprotected personal info to Israel (as well as the other 5-Eyes) without a legal framework to protect it (claiming that they could sift the Government info out, but not the Private Citizen info); this week we learned that NSA and Britain’s GCHQ hacked into Belgium’s largest telecom BelgaCom; NSA hacked and stole billions of pieces of data from India’s telephone & Internet in less than 30-days; NSA targeted and hacked Brazil’s Petrobas (for commercial benefit to USA); NSA (and GCHQ) impersonated as Google Network and spy on Web-Searchers (MITM attack) using faked SSL cryptographic security certificates; etc. Recently, former NSA Analyst (turned Whistleblower) Russ Tice divulged that NSA has used programs such as Marina (Internet Metadata), Mainway (Telephone Metadata), and Pinwale (written content) to surveil/monitor NGOs, Banking & Financial Firms, Government Officials, Congressmen and Senators (especially the Intelligence Committees and Armed Services Committees); Court Judges, and even members of the Supreme Court in an effort to blackmail them into keeping the NSA Programs running unfettered.

  • ME98||

    NSA trusts Israel (who is 3rd worst cyber-hacker into American Government) not to abuse Senate & Congressional info, like they will with private citizen info? Where does it end? What will come next week? The easiest way to tell if James Clapper, General Keith Alexander, or even Obummer are lying to Congress and the Public again is to watch their mouths; if their mouth is open, they are lying. If you are comfortable living in a Communist country with no rights and the Government dictating everything...then go there. However, I want to live in America, where our founding fathers gave us Rights...and told us that you can throw yours away if you want, while still allowing me to keep mine. I gave 50-percent of my life to the Government so we could have Rights. All American Citizens should be telephoning to their Senators/Congresspersons each day screaming that we demand our Constitutional Rights to be protected. If sycophants such as Feinstein, Chambliss, Atny Gen Holder, etc. are unwilling to uphold the Constitution, then they all need to be impeached or terminated. Put them all in prison and take away their Rights.

  • The Last American Hero||

    Succinctly put.

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