What if Politicians Think Secrecy Trumps the Constitution?

And what do we do about it?


National Archives

What if the National Security Agency (NSA) knows it is violating the Constitution by spying on all Americans without showing a judge probable cause of wrongdoing or identifying the persons it wishes to spy upon, as the Constitution requires? What if this massive spying has come about because the NSA found it too difficult to follow the Constitution?

What if the Constitution was written to keep the government off the people's backs, but the NSA and the president and some members of Congress have put the NSA not only on our backs, but in our bedrooms, kitchens, telephones, and computers? What if when you look at your computer screen, the NSA is looking right back at you? What if the NSA really thought it could keep the fact that it is spying on all Americans and many others throughout the world secret from American voters?

What if Congress enacted laws that actually delegate some congressional powers to elite congressional committees—one in the Senate and one in the House? What if this delegation of power is unconstitutional because the Constitution gives all legislative powers to Congress as a whole and Congress itself is powerless to give some of its power away to two of its secret committees? What if the members of these elite committees who hear and see secrets from the NSA, the CIA, and other federal intelligence agencies are themselves sworn to secrecy?

What if the secrets they hear are so terrifying that some of these members of Congress don't know what to do about it? What if the secrecy prohibits these congressional committee members from telling anyone what they know and seeking advice about these awful truths? What if they can't tell a spouse, a lawyer, a priest in confessional, a judge when under oath in a courtroom, other members of Congress, or the voters who sent them to Congress?

What if this system of secrets, with its promises not to reveal them, has led to a government whose spies have intimidated and terrified some members of Congress? What if one member of Congress—Sen. Jay Rockefeller, a Democrat from West Virginia—wrote to then-Vice President Dick Cheney and voiced fears that totalitarianism is creeping into our democracy? What if he wrote that letter in his own hand because he feared he might be prosecuted if he dictated it to a secretary or gave it to his secretary for typing? What if he was terrified to learn what the spies told him because he knew he could not share it with anyone or do anything about it?

What if the NSA's chief apologist in Congress—Sen. Dianne Feinstein, a Democrat from California—took to the only safe place in the world where she could reveal what she learned from the spies and not be prosecuted for violating her oath of secrecy? What if that place is the Senate floor, and what if, while there, she revealed that she approved of the NSA spying on all Americans but disapproved of the CIA spying on her staff? What if it is unlawful and unconstitutional for the CIA to spy on anyone in the United States— whether private citizen, illegal alien, or member of a Senate staff?

What if the equality of the branches of government is destroyed when one of them spies on the other? What kind of a president spies on Congress? What kind of members of Congress sit back and let themselves become victims of spying? What if Congress could stop all spying on all Americans by a simple vote? What if Congress could stop the president from spying on its own members with a simple vote? What if Congress is afraid to take these votes?

What if secret government is unaccountable precisely because it is secret? What if the people's representatives in government have a moral obligation to reveal to their constituents that the president's spies are spying on all of us, and they—members of Congress—have not lifted a finger to stop it? Would we all vote differently if we knew the secrets the government has shared with a select few but kept from the rest of us? What if your own representatives in the House and the Senate are lying to you because of fear of the consequences of revealing secrets?

What if the NSA chief claimed to a congressional committee—one of those with which he secretly shares secrets—that all this spying has stopped 57 terror plots? What if the next day he changed that number to three plots? What if he has declined to say what those three plots were? What if a federal judge found that all this spying has not prevented any identifiable plots?

What if all this spying doesn't work? What if the NSA has too much data about all of us? What if the president knowingly declined to uphold the Constitution and instructed his spies to do the same? What if the NSA is so accustomed to spying on all of us all the time that it lacks the ability to obtain probable cause and to identify the persons upon whom it needs to spy? What if the government's culture of secrecy and spying has taken on a life of its own? What if even those who started it are afraid to stop it?

What if the NSA missed the shoe bomber, the underwear bomber, the Ft. Hood massacre, the Times Square bomber, the Boston Marathon bombers, the coup in Kiev, and the Russian invasion of Ukraine? What if the NSA wasted its time spying on Aunt Tillie in Des Moines and the Pope in Rome, and Chancellor Merkel in Berlin, instead of Vladimir Putin in Moscow?

What if secrecy has replaced the rule of law? What if that replacement has left us in the dark about what the government knows and what it is doing? What if few in government believe in transparency? What if few in government believe in the Constitution?

What do we do about it?

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  1. Question City!!!!

  2. Judge, we love you! And this is an important piece that needs desperately to be heard AND INTEGRATED into the brains of docile Americans.

    That is beyond question. My only quibble is with the stylistically annoying “what if” motif.

    What if you were to try putting “what if” at the top of the page, followed by a colon, followed by bullet points for each successive dependent clause? Or, failing that, actual bullets? So that I could shoot myself?

    1. He probably did it just to piss of Reason readers. And for that I have to doff my lid. Don’t be so squeamish and quibblish, young man.

  3. As in Cointelpro….no one is going to go to jail for any of this.

    1. Hey, there will be serious consequences, somebody might have to retire early with a full pension and get a well paying job at a NGO, think tank or government contractor.

    2. Don’t be so pessimistic. I’m sure Snowden will be jailed if they ever catch him.

  4. But I will be dragged out of my job for failure to pay parking fines

    1. And arrested, possibly strip-searched, and tossed into the clink for a time.

      And the very idiots doing it will be your neighbors who will feel as if they are performing the work of god.

      1. exactly…..they thrive on the idea that they are being harmed by my parking tickets

        1. Not just them, but also the whole of the local society. When you break even the tiniest law you become part of collective lawlessness. People who refuse to submit to micromanaging are irritating and evil to those in uniforms who’ve been given the job to make sure civilization is not terrorized and razed by people who don’t pay parking fines and grow gardens in their front yard. The fucking gall of you society-destroying cretans.

          1. People are doing their own thing, rather than being micromanaged into uniformity?

            RELEASE THE KRA’GLE!

            1. They’ve been released. They’re called Clovers, Krum.

    2. That actually happened to me when I was young. I believe it may have been without jurisdictional standing, as well. Cops from Dallas County crossed into Tarrant County where my office was located to arrest me for an parking ticket, that actually took place in a different municipality within Dallas County than from where the police hailed. Just think about the motivations behind such an act.

  5. What if a narcissist stole NSA property and gave it to the world? What if the Constitution wasn’t a suicide pact? What if the terrorists claimed over seven million infidels killed and did a victory lap? What if I slipped in the shower and no one but the NSA was watching and they called 911 for me?

    1. What if they didn’t bother calling?

  6. OT: Craft beer distribution battle brews in Florida legislature

    The law would force craft brewers to sell their bottled and canned beer directly to a distributor. If they want to sell it in their own tap rooms, they would then have to buy it back at what is typically a 30-40 percent mark-up without the bottles or cans ever leaving the brewery, according to Joshua Aubuchon, a lawyer and lobbyist for the Florida Brewers Guild.

    The rule would not apply to draft beer.

    “That to me looks like racketeering,” Aubuchon told Reuters.

    1. The craft brewers should take this to rick Scott’s desk and say if you are serious about creating jobs in the sunshine state, get ride of BS regulations that hurt small business. They did just cut 400 million in car registration fees so he might listen.

    2. They do the same thing in Maine. One distributor gets a legal monopoly, and you can’t purchase anything unless they carry it.
      That’s why there’s no Fat Tire in Maine.

      1. We just got new Belgium here. I love fat tyre. But they also have ranger, snap shot, accumulation and a blonde ale I’m drinking now. I don’t even like IPA and I enjoyed ranger. Good stuff overall.

        1. I drank tons of the stuff when I lived in Colorado.

          1. I discovered it in Arizona in 2004. I had to wait 10 years to get it here.

    3. That would suck.

      The franchise laws originally went into place to “protect” the distributors against the big brewers.

      The industry has changed, and the power rests with the distributors now*. And their lobby is strong.

      *Obviously, as they were able to get the original laws passed, they have had power for a long time. But pre-prohibition, there was hatred of tied houses, so it made for easy law-making when prohibition ended.

      The story of Falls City Beer is an example of how to defeat the tied house system without relying on the state, but no one seems to pay attention.

  7. What if every president was a CIA-trained plant? This would explain the nonstop jaunt into totalitarianism. I suspect that for decades presidential material is groomed by purveyors of a core political establishment made up of a group of very powerful people who may hold different ideological objectives but share the same goal of building an iron-fisted and untouchable federal system.

    The fact that federal power has grown unabated and along a quite linear route for decades even though the different parties have come and gone illustrates to me that our country is probably run by two different governments that serve distinct purposes.

    1. Why look for wild theories when the Pentavirate explains it all?

      1. I can find ideas in my own thicket, thank you.

        1. Denying the Pentavirate only makes it stronger.

          1. Sounds like the communicable disease of tantalizing theorizing.

  8. Not enough question marks.

  9. If they want to sell it in their own tap rooms, they would then have to buy it back at what is typically a 30-40 percent mark-up without the bottles or cans ever leaving the brewery, according to Joshua Aubuchon, a lawyer and lobbyist for the Florida Brewers Guild.

    Sounds legit.

  10. I suspect that for decades presidential material is groomed by purveyors of a core political establishment made up of a group of very powerful people who may hold different ideological objectives but share the same goal of building an iron-fisted and untouchable federal system.

    Oh, sure. Next, I suppose you’ll tell me a former head of the CIA and his son will both be elected President. And mainstream political forces will attempt to generate momentum for a second son to run for the office.

    If that were a cheap spy novel, nobody would read it.

    1. They are real, and they are called Straussians.

    2. Unfortunately, no one can be told what the Pentavirate is. You have to see it for yourself.

  11. What if we had an Attorney General who was not a corrupt scumbag? What if we had one with real balls and a deep respect for the laws he swore to uphold and defend?

  12. Checked up on the Fort Hood shooting incident just now.

    Just as I predicted – workplace violence.

  13. How does Smith v. Maryland factor into this?

    1. https://reason.com/archives/201…..ance-right

      Basically, since the phone company HAS to view the metadata of your calls in order to bill you, you don’t have an expectation of privacy on that data. That determination makes it easier for the government can look at it as well.

      1. *to look at it

  14. I want the judge to run for president in 2016. Not that he would win, but he could follow Ron Paul and educate the booboise. RP made a heck of a difference in how a lot of people think — the judge could build on that.

    The fact that his Fox News fans’ heads would explode when he spoke of legalizing drugs would be icing on the cake.

    1. People vote on hairlines. The judge’s hairline looks superimposed and alien. Wonderful mind and kind face- I just cannot stop my brain from analyzing that hairline. Maybe it’s just me, if so, ignore, move on, forget…

  15. That’s a lot of what-ifs.

  16. What if it’s already too late, and we can’t do a damn thing about it?
    The Republic is dead, long live the FYTWocracy!

  17. What if you drive me freakin’ crazy with this “what if” trope and I get so P.O.’d I just stop reading the damn thing? Whaddaya think? I saw the subhead and said, aloud, “Oh, no, not another one of Napolitano’s ’76 Questions’ things!

    Aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaargh! Run away! Run away! Stop using this horrible construction. Please.

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