Where's Fidelity to the Constitution When We Need It?

The NSA scandal is the tip of the iceberg.


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When former spy Edward Snowden revealed to the world that the federal government is spying on most Americans, most Americans were surprised and unhappy. But half of official Washington yawned before it roared. Somehow the people in the government had a pretty good idea of what government spies are doing, and they more or less approve of it -- but not all of them.

Politicians as diverse as Republican Speaker John Boehner and Democratic Sen. Dianne Feinstein called Snowden a traitor. So did former Vice President Dick Cheney, and President Obama said that for once Cheney's words were music to his ears. On the other hand, former Democratic Congressman Dennis Kucinich, Republican Sen. Rand Paul, my Fox News colleague Bill O'Reilly and I have all referred to Snowden as a hero.

What did Snowden do that has those in power screaming for his scalp and those -- generally -- who fear the loss of liberty, including millions of young people, grateful for his courage?

The NSA is America's domestic spying apparatus. Its budget is secret. It will soon occupy the largest federal building on the planet. It often hires outside contractors to do much of its work. One of those contractors is Booz Allen Hamilton. Booz Allen's co-chair is former Admiral John M. McConnell, who once headed the NSA. When Snowden began his work for Booz Allen, he took two oaths. The first oath was to keep secret the classified materials to which he would be exposed in his work as a spy; the second oath was to uphold the Constitution.

Shortly after Snowden began his work with the NSA, he came to the realization that he could not comply with both oaths. He realized that by keeping secret what he learned, he was keeping the American public in the dark about what its government is doing outside the Constitution in order to control the public.

What is it doing?

The government persuaded a federal judge with a perverse understanding of the values and history and language of the Constitution to sign a series of orders directing the largest telephone company in the U.S. and the largest Internet providers in the world to make available to the government's prying eyes all sorts of information about nearly all of us, thus allowing the feds to monitor our use of land line and wireless phones, as well as our use of emails and texts. The numbers are staggering. Verizon has greater than 113,000,000 U.S. customers who generate or receive more than one billion phone calls every day. Americans text and email one another using the services of Microsoft, Google, Yahoo, Facebook and others many billions of times every day.

The judge's order was profoundly unconstitutional, as is the section of the Patriot Act that authorized it. The Constitution requires that the government demonstrate to all judges being asked to sign search warrants specific evidence of criminal behavior contained in the things to be seized. And it requires that the warrants themselves particularly describe the places to be searched or the persons or things to be seized.

In this case, the things being seized consist of digital data about nearly everyone in America, which in the hands of a skilled spy can be used to monitor our physical movements and communications and, according to former CIA Director David Petraeus, to predict them. The Patriot Act facilitates these dragnets by unconstitutionally reducing the standard for the issuance of search warrants. The president, who refuses to deny that his spies possess the content of our communications, claims they are not listening to it or reading it.

Who would believe President Obama?

One of the spies who knew the power he and his fellow spies had and who had access to the innermost thoughts of hundreds of millions of us -- and who disbelieved the president -- was Edward Snowden. Snowden realized the unconstitutional nature of what the government was doing and concluded that he could not be faithful to both of his oaths. One of those oaths -- to retain secrets -- is grounded in a federal statute that requires secrecy and punishes the exposure of secrets. The other oath is grounded in the Constitution, which is the supreme law of the land and protects the natural right to be left alone and does not punish the governmental violation of that right.

When confronted with the conflicting oaths, Snowden opted for the higher good: fidelity to the supreme law of the land. Hence, in order to protect the privacy of us all, Snowden violated the lesser oath and upheld the greater one. He could not serve two masters when the lesser of the two (fidelity to the government's laws) facilitated a corruption of the greater of the two (the primacy to the Constitution).

He's a traitor, the establishment roared. He's a high school dropout. He left the Army. He admits to having lots of sex with his girlfriend. He fled to Hong Kong.

Who cares?

He understands, as Ronald Reagan did, that if we don't control the government, the government will control us. That's why the Washington establishment yawned when we learned what it knew and now roars because Snowden challenged it. Those in power want to stay there and will misuse the Constitution to do so for as long as they can get away with it, no matter to which political party they belong. Any government that secretly spies on nearly all the population is aiming to control the population.

Snowden knew that this massive violation of the constitutionally guaranteed rights of nearly every American, orchestrated and operated in secrecy, is corrupting the Constitution and empowering the corruptors. It was that understanding plus a willingness to face down those in power who lack fidelity to the Constitution and who can do him harm that constituted the behavior of a hero.

Is he flawed?

The only hero who was not flawed was nailed to a tree 2,000 years ago because those He came into the world to save rejected Him.

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  1. Is Edward Snowden a better judge of what is unconstitutional than a constitutional law professor?

    1. YES!
      I mean, yes.

    2. Constitutional law professor? Who are you talking about?

      If you're talking about the President, well, I think Snowden's got about the same qualifications in that regard as Obama does, and appears to be a better judge in that regard as well.

  2. I understand, but dislike, the constant focus on 'constitutionality'. The constitution is not some God-breathed document, and has serious flaws. Of course, if our government adhered strictly to the constitution I believe we would all be much better off than we are today, but morality should drive the discussion, not a document.

    That is, if your moral rulebook include individual rights (including rights to privacy, property, etc.), then government spying is wrong. Period. Even if the constitution were amended to permit it.

    1. That document is a contract between the federal government, the state governments and the people. When someone breaks a contract, you don't talk to him about his moral hygiene. You talk to him about his obligations under the contract, and failing that you seek remedy in court.

      1. I hear you; but how doe you respond to "the people" who say "I never signed that contract"?

        1. The members of the federal government swear an oath to uphold it. That's them "signing" the contract.

          The Constitution is not the same as the social contract. As long as the government created under the Constitution exists, it is in force. It would take a revolution, devolution or Constitutional Congress to void it.

          1. "Constitutional Congress Convention"


          2. It would take a revolution, devolution or Constitutional Congress to void it.

            Or they could simply ignore it as they do now.

            1. Agreed. But that is a enforcement function. The document is not perfect. It should have defined people that have been proven to have violated the Constitution as traitors and opened them to criminal penalties.

              The Founders mistaken thought that like-minded people--i.e. people who valued liberty and individualism--would be in power forever. You need checks, balances, and a cliff to push evildoers off of to make it work.

              1. It should have defined people that have been proven to have violated the Constitution as traitors and opened them to criminal penalties.

                I'd settle for public execution.

              2. Or--at a minimum--defined them as oath-breakers, a status that precludes them from holding any other political office that requires them to take an oath.

                "Break a deal, face the wheel."

              3. Not at all, the Founders understood what power does and that like-minded people would not long be in power, so they built this incredible machine to control that power. Thus the famed 'checks and balances' that any eight grade student should be schooled in (but generally are not, apparently).

            2. It's really rather simple, if they who are sworn to uphold the constitution simply ignore it and do as they please, we are under no obligation to obey their laws.

              Short of lining the bastards up against the wall and shooting them, massive civil disobedience would work, for example millions of people upping their deductions on their w2s and not filling tax returns. Millions of legitimate businesses moving to all cash and refusing to be unpaid government agents for the collection of taxes. If people can be aroused enough to smack them hard in the wallet, it would at least get their attention, and nobody would need to resort to arms.

          3. Despite the claim that "the people *are* the federal government", I dare say most people do not swear an oath to uphold the Constitution. Is saying the Pledge of Allegiance "signing" the contract?

            1. As private citizens, I cannot violate your Consitituional rights. If I refused to publish your novel, I am not censoring you. If I steal your guns, I am not violating your RKBA. Etc.

              The Constitution is not a contract between citizens and government, it is the rules under which the government is allowed to operate. It binds Congress and the other branches, not individuals.

              It is the rules to which the governed are consenting to allow the government to operate.

              1. Well said, SF.

                However, it still seems "the governed", even though the rules provide them methods to obtain their way, could say "I don't buy into your belief system". They can do that with, say, the Ten Commandments; why not with the Constitution?

              2. The Constitution is not a contract between citizens and government, it is the rules under which the government is allowed to operate. It binds Congress and the other branches, not individuals.

                My debating tendencies make me want to point out that a contract is the rules under which business operates but the truth is I don't disagree with you on this in any meaningful way.
                Perhaps I should have said "the Constitution acts much like a contract."

          4. Just because members of the fed gov "sign" a contract which explicitly allows them to violate my rights does not mean my rights cease to exist if they uphold their contract.

            And this is my point: the constitution does not define my rights. My rights do not come from government and are not "living" in the sense that they can be amended by democratic vote. If congress voted to amend the constitution such that it explicitly permitted government to put a video camera in your shower, would you start nodding your head in assent since it is now 'constitutional'?

            I agree that the Judge is typically very good about citing natural rights and how they supersede government. I always enjoy his writing. This is one instance where he should have taken this route, but did not.

            1. But citing natural rights involves mystical sky-fairy thinking!

              1. No, it doesn't. See Ayn Rand, among many others.

                1. Er, that last was to EvH.

        2. You don't like it? There's the door. The door to Canada.

          Yeah, that's what I thought.

          1. But I can't wear a mask in Canada when I riot! And I love to riot!

            1. Just pull your toque down real far.

      2. You say "contract," I say "paper barrier." Let's call the whole thing off!

        Srsly, Judge Napolitano talks about natural rights ALL THE TIME so, from that perspective, I can't see that Being Waterboarded is making the correct argument.

        The correct argument is "Whence these 'Natural Rights'? And which rights are 'Natural'?"

        1. The correct argument is "Whence these 'Natural Rights'? And which rights are 'Natural'?"

          If you have to ask then you have not been paying attention. Or you're dishonest. I'll go with the latter and leave you to troll.

          1. Natural rights are whatever you say they are and they are called natural so you don't have to do any more thinking or explaining on the subject.

            1. Natural rights do not put an obligation onto another person. It ain't that difficult of a concept.

              I wouldn't expect you to understand with your broken brain and distinction-deficit-disorder, but most other people get it.

              1. So that clearly doesn't include the right to own property, which by definition constrains other people.

                1. Since your broken brain doesn't understand the distinction between initiating force and reacting to the initiation of force, I don't expect you to comprehend how private property does not put an obligation upon others to act, since your broken brain cannot grasp the distinction between action and inaction.

                  Your blatant stupidity never ceases to amaze.

                  1. It obviously puts an obligation on others to act. They can't walk in a straight line through your property; they have to go around it. They have to take apples from that tree, not this tree. Property is an entitlement granted by government and backed up with government guns, a complete legal fabrication. You just want it to be considered natural so you can maintain an illusion of consistency when all you really have is a set of things you want, and you want to tell anyone who disagrees that they lack your moral first principles. Which suggests only that you don't have a good merits-based defense of your preferred system.

                    1. They can't walk in a straight line through your property; they have to go around it. They have to take apples from that tree, not this tree.

                      As I said, you cannot comprehend the difference between action and inaction. Your brain is broken. That's all there is to it.

                    2. There is no distinction meaningful enough to be foundational to a political philosophy. Saying someone can't do something (i.e., go on your property without your permission) is an active restriction on that person.

                    3. So you have a problem with the right to live? I mean, saying someone can't kill someone is an active restriction on that person. How unfair!

                    4. Obligating inaction and obligating action are not the same thing. I wouldn't expect you to understand since your broken brain cannot comprehend the distinction between action and inaction, but I can assure you that they are not the same.

                    5. So Tony, are you saying you would like to live in a world without property rights? And how do you think that would affect the production of goods and services?

                    6. Actually, I think Hobbes said something about this subject. If I remember right, owning property itself is not a natural right, but owning the product of your labor is. So, once you improve on something given by nature, say by draining swampland or carving a stick, it becomes something else, and owning that is a natural right.

                    7. Tony:

                      Property is an entitlement granted by government and backed up with government guns, a complete legal fabrication.

                      Entitlements and rights are synonymous. This implies that gay people do not have a right to get married, until government says they do.

                      This implies that slaves don't have a right to be free, until the government says they do.

                      Imagine that we have a group of people on a desert island. There's no government. This implies that there's no moral reason for anyone to avoid vicious murder and gang rape, since no one has any rights.

                      Is this moving concepts of morality forward, or backward?

            2. Tony, what you are hinting at is that natural rights are essentially 'primitives', to use a scientific term. For example, in order to derive any scientific law, there are a certain set of primitives that are simply accepted without proof. This is certainly true of what libertarians consider to be natural rights. However, your comment is disingenuous in that it implies that those who don't believe in natural rights (or at least the same natural rights as most libertarians) do not have a set of primitives defining their moral precepts. Of course they do - they may simply have never dug deep enough to uncover them. Furthermore, they may find (like many progressives) that many of their beliefs result in conflicting primitives.

              1. Tony's "moral precept" is pretty simple: might makes right.

              2. You're absolutely right--my problem with natural rights rhetoric is that it is always a dressed up version of my comment above--a conversation stopper. I understand that any ethical system relies on axioms, and that these can be, in the grand scheme, arbitrary.

                What I want is for libertarians to argue their beliefs on their merits. Their belief that a person should be able to own however many guns of whatever type vs. my belief that it is immoral for a small elite to hoard wealth while millions of elderly people go hungry. They should explain why I'm wrong based on deeper ethical principles than "because I say so" or "because my minority opinion of the constitution's meaning says so." Why is it good for human well-being? should be the question to answer.

                1. a small elite to hoard wealth while millions of elderly people go hungry

                  Wealth is not money. Besides being distinction-challenged, you have absolutely no understanding of economics. Fucking moron.

                  1. You evidently only have the same three or four thoughts in your head, and pick which one seems to fit the debate at hand best, even if it is completely irrelevant. But yes I'm the moron.

                    1. Wealth can't feed people, Tony. You can't feed the elderly with fancy cars or company stock. So saying it's unfair that some have wealth while others go hungry only shows that you're an ignoramus with regards to basic economics. The fact that you haven't learned anything, despite being told repeatedly, shows that yes you are indeed a moron.

                2. Their belief that a person should be able to own however many guns of whatever type vs. my belief that it is immoral for a small elite to hoard wealth while millions of elderly people go hungry.

                  So much derp, so little time.

                3. "...it is immoral for a small elite to hoard wealth while millions of elderly people go hungry."


                  This might be the most asinine comment I have read from you. Looking at SS and Medicare and understanding the basics of the programs and the entitlements they contain, it is totally dishonest to make these kind of claims. People have every right to make, keep, trade, and cultivate money via investments. Wealth is not, NOT a zero sum game.

                  The government forces me, backed by guns, to pay old people to not work and pay them to be sick. As a young person who makes a minimal salary I have no choice, unless I choose not to work, to pay old people for a program I did not authorize, want no part of, and am in no way going to be able to participate in in 40 years when eligible. Old people had an entire career to plan for their retirement and medical care.

                  I am expected to pay for theirs and start saving for mine at the same time. Unlike you, I understand basic math and that the government will not be able to collect nearly enough money to fund the trillions and trillions of dollars it promises retirees and government employees in the time leading up to my retirement.

                  1. This might be the most asinine comment I have read from you

                    You must be new here. He tops that one thrice a week.

                    1. I'm more new to posting than reading.

                      I figured the lurking should be phased out in favor of active participation.

                4. So Tony, do the poor go hungry because the "wealthy" eat too much food? Is that what you are saying? Do the poor have too few cars because the rich have too many cars etc. etc.

                  1. MoMark:
                    "So Tony, do the poor go hungry because the "wealthy" eat too much food? "

                    "Their belief that a person should be able to own however many guns of whatever type vs. my belief that it is immoral for a small elite to hoard wealth while millions of elderly people go hungry. "

                    I think he's saying that the elderly go hungry while the rich keep getting richer because people can own lots of guns.

                    If he thinks that the government hasn't been aiding and abetting the rich getting richer, then he hasn't been paying attention.

                5. Tony:

                  They should explain why I'm wrong based on deeper ethical principles than "because I say so" or "because my minority opinion of the constitution's meaning says so."

                  And the straw man ignites.

    2. People focus on the Constitution because even Progressives and war-mongers agree that government is bound by the Constitution.

      Morality is worth discussing, but arguments based solely on morality are too easily dismissed as subjective.

      1. At best, Progressives seem annoyed by the government being bound by the Constitution, they actively deny it when haring after some perceived "social good", like health care reform.

      2. Depends on what you mean by "bound by the Constitution."

        I would say that that means the government can only do that which is explicitly authorized, while most progressives will say it means the government can do anything that is not prohibited by the Bill of Rights, and even that is squishy (inserting the weasel word "reasonable" into the 2A for example).

        1. True, but at least it's a written starting point that we can agree on. Imagine how much more fvcked we'd be if we didn't have the Bill of Rights.

          1. Imagine how much more fvcked we'd be if we didn't have the Bill of Rights.

            Would your TV and stereo be more secure if nobody had ever invented door locks? You might think that without door locks invasions of your privacy would be more common - but without door locks you might keep a gun to hand and invasions of your privacy would be more apt to met with summary execution and therefore less common.

            1. Madison argued against including a Bill of Rights in the Constitution - and compromised by including the 9th and 10th amendments - specifically because he thought that by listing rights, those rights would come to be seen as the only rights you have.

              I think Madison was right - the Constitution has been flipped on its' head because of the Bill of Rights. There is a world of difference between arguing "Where in the Constitution does it say the government can't do X?" versus "Where in the Constitution does it say government can do X?" but the former is what we have devolved to.

              The thing is: Was Madison naive enough to believe that not including a Bill of Rights would make it clear that the Constitution was granting only specific, limited powers to the Federal government and not that it was granting specific, limited freedoms to we the people?

              Or was he perhaps smart enough to think that including a Bill of Rights gives people a false sense of security and lulls them into thinking that they don't have to keep a sharp eye on the government to keep it from infringing their rights?

              My own belief is that he was cynical enough to think that people who are stupid enough to not bother keeping a sharp eye on government wind up getting the government they deserve.

              But maybe that's just me.

    3. The constitution ... has serious flaws

      Unlike Kurt Godel's unexplained assertion of the same, I hope you'll take the time to explain the flaws. I'm interested as to what you perceive to be it's weaknesses, logical inconsistencies, etc.

      I have my thoughts, but I'm curious as to what others, in a libertarian mode, think.

      1. I'd say that the principle weakness of the Constitution is that it originally mostly applied to the Federal government; its rights were not universal across all states until "Incorporation." So, originally, many states actually had "state churches." Boo! I also did not like it when the original Constitution allowed the continuation of the Slave Trade. When it comes to human slavery, I say "No!" Because I am brave, that's why.

        Another weakness in the Constitution is the allowing for Eminent Domain subject only to some vague sense of compensation.

        I could go on and on.

        Mainly I don't like that the U.S. Constitution was enacted by a cadre of Pale Penis People. And now they're dead white males, which is offensive to my sense of decorum, influenced by Benneton, wherein all groups of people should bear a range of lovely-hued flesh tones that goes from pale white, to deep yellow (and Redskins!), all the way to black as coal.

        1. So the Constitution's deepest flaw is not what it says, but who wrote it.

          You do realize that that is a logical fallacy, don't you?

          1. The sound you just heard was the sarcasm whizzing over your head.

            1. To borrow a phrase, that sonic boom was the result of weapons-grade irony, courtesy of sarcasmic. I'm still trying to wrap my head around it.

          2. Marginal, don't object by saying that pointing out the fallacy is so "phallus-y."

    4. This is the just another name for the slippery slope known as the "living constitution" of the progressives.

      To paraphrase Randy Barnett, if you are not going to strictly adhere to the plain meaning of the written constitution, why bother having a written document at all?

      1. why bother having a written document at all?

        To use as a weapon against more principled opponents.

        There is nothing a Progressive like better than to claim that the letter of the law is meaningless, we should go by the intent (see Obamacare and tax deductions for Federally run exchanges) when it's something they are in favor of. But immediately become sticklers to the fine print when they are trying to block some action (see any number of environmental law suits, the Wet Lands act, etc).

    5. Well, I agree to a certain extent, but my perspective is that, if nothing else, Constitutionality acts as a sort of rhetorical base. The Constitution grants powers to the government that go beyond what I would like to see, and it ignores restrictions I would like to see in place, but it's a decent starting point. If the long game is to see a political system where sovereignty lives at the personal level, I think you have to start by convincing people who are generationally conditioned to accept statism that it flies in the face of the foundational documents of our country. We're brought up to have a reverence for the Constitution, so an argument that relies on it (as opposed to more philosophical or logical arguments) will probably be more successful.

      So, short version, arguing to constitutionality is an acceptable midway point for me, where arguing to libertarian ideals is rhetorically a bridge too far for a lot of people.

  3. I have not been following Snowden that closely - but he has to be careful. I applaud his disclosure of NSA domestic spying / 4th Amendment violations.

    But, if he continues to disclose NSA surveillance of foreign sources - whether in public or in private to the Chinese - he's going to lose the support of most Americans. He needs to get himself out of China and to Iceland or somewhere fast.

    1. Iceland pop - ~320,000
      China pop - 1,350,000,000

      Which one of these nations is in a better position to guarantee Snowden's security?

      1. Which one will make him look like a for-real traitor? Which will pump him for information on American FOREIGN intelligence gathering?

    2. I thought Iceland has already stated that they won't grant him asylum. I think his value to the Chinese would mainly be as a polical pawn to trot out once in a while to remind everyone how they stuck it to the "EVUL EMPIRE" America.

      I doubt he has that much knowledge that their intelligence agencies would find particularly useful. They certainly don't give 2 shits about the NSA spying on US citizens, except that it makes our government look bad. Any IT security weaknesses that he knows about will probably be dealt with if they haven't already.

    3. That is the big risk. Already around half of Americans are just fine with the program even post-exposure and before he started telling China things. He not only needs good lawyers, a PR person wouldn't hurt.

      1. Already around half of Americans are just fine with the program even post-exposure...

        Barack Obama being the most notable.

  4. Great article judge! I worked for the NSA myself a few years ago and found myself in the same situations, a poop sandwich, or a poop sandwhich with mustard. This is my driving force for leaving the Marine Corps, I can no longer exert one more ounce of energy to further empower my own enslavement. I would never go to the extremes of divulging anything I was entrusted to protect, but I will actively campaign and run for politics as a Libertarian to undo these injustices. Teaching and educating people is the key, as Ron Paul says, "Once you tell people the truth, they cannot unhear what you have told them"

    1. I'm convinced that the reason we see so much arming of other parts of the federal government is their distrust of the combat arms of the Marine Corps and Army. The NCO corps, particularly in combat units, are fairly aware of the what the Constitution says and what they swore to. That makes them undependable.

      Members of Federal alphabet agencies may have taken similar oaths, but seem to have a far more "flexible" interpretation of those oaths.

      1. People join the military to protect the people.

        People join alphabet agencies to bully the people.

        1. Amen, brother.

        2. Government is bad because it forces you to do things at the point of a gun!

          The only legitimate government functions are the ones that involve shooting people!

  5. Minor nit to pick: Snowden wasn't a "spy", he was an IT security analyst and system adminstrator.

  6. Since you guys seem to think the Bill of Rights is what is meant by "the Constitution," here's a relevant piece out today: A Secret History of the Bill of Rights.

    1. Do you honestly believe people who post here don't know the history of the Bill of Rights?

      I didn't notice who the author of the piece was until I got to the bottom. I was not surprised.

    2. You are derptastic if you think I'm going to read a Salon article about the BOR.

      Keep glimmering on you crazy cubic zirconium

    3. A 'secret' history, eh? It's a secret that the only reason to disagree with me is because you're a paranoid right-wing extremist nutjob racist member of the patriarchy? I think that particular cat is out of the bag.

    4. Maybe you haven't noticed in all of the years here, but almost anyone on this board can bury you with their knowledge of history, especially when it comes to the founding era of our country.

  7. "However, the Anti-Federalists, the opponents of a stronger federal government, were particularly influential in slave states like Madison's Virginia, where they were inspired by some of his fellow slave owners like Thomas Jefferson, George Mason and Patrick Henry."

    Also New York, New Hampshire, Rhode Island, Massachusetts, etc. I believe all the states were slave states at the time with maybe the exception of Massachusetts. I take from the article that the author is trying to convey that the bill of rights was only a tool used for the preservation of slavery and that libertarianism today is a modern day manifestation of that mindset.

    1. Good for you Tybus.

      I didn't want to lend myself to aneurysm by reading a derp-tastic article.

      I can though read your copy of its most ludicrous sections.

      Good for you, you are stronger than I.

    2. So basically he spent an entire article to say "No, no. Those evul libertardians are scary racist who want to put you back in chains!"?

      1. I think what he was saying is that the government's chains are more comfortable and stylish.

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