How a Bipartisan Majority in Congress Shredded the Constitution, Again.

Hidden in the Cromnibus was a clause allowing the NSA to gather your private data and share it with law enforcement and foreign governments.


When the government is waving at us with its right hand, so to speak, it is the government's left hand that we should be watching. Just as a magician draws your attention to what he wants you to see so you will not observe how his trick is performed, last week presented a textbook example of public disputes masking hidden deceptions. Here is what happened:

Last week was dominated by two huge news stories. One was the revelation by the Senate Intelligence Committee of torture committed by CIA agents and contractors on 119 detainees in the post-9/11 era— 26 of whom were tortured for months by mistake. In that revelation of anguish and error were the conclusions by CIA agents themselves that their torture had not produced helpful information. President Barack Obama acknowledged that the CIA had tortured, yet he directed the Department of Justice not to prosecute those who tortured and those who authorized it.

The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of September 2015. That legislation, which is 2,000 pages in length, was not read by anyone who voted for it. It spends a few hundred billion dollars more than the government will collect in tax revenue. The compromise was achieved through bribery; members of Congress bought and sold votes by adding goodies (in the form of local expenditures of money borrowed by the federal government) to the bill that were never debated or independently voted upon and were added solely to achieve the votes needed for passage. This is how the federal government operates today. Both parties participate in it. They have turned the public treasury into a public trough.

Hidden in the law that authorized the government to spend more than it will collect was a part about funding for the 16 federal civilian intelligence agencies. And hidden in that was a clause, inserted by the same Senate Intelligence Committee that revealed the CIA torture, authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments.

"Nonpublic data" is the government's language referring to the content of the emails, text messages, telephone calls, bank statements, utility bills, and credit card bills of nearly every innocent person in America—including members of Congress, federal judges, public officials and law enforcement officials. I say "innocent" because the language of this legislation—which purports to make lawful the NSA spying we now all know about—makes clear that those who spy upon us needn't have any articulable suspicion or probable cause for spying.

The need for articulable suspicion and probable cause has its origins in the Fourth Amendment to the Constitution, which was written to prohibit what Congress just authorized. That amendment was a reaction to the brutish British practice of rummaging through the homes of American colonists, looking for anything that might be illegal. It is also a codification of our natural right to privacy. It requires that if the government wants nonpublic data from our persons, houses, papers, or effects, it must first present evidence of probable cause to a judge and then ask the judge for a search warrant.

Probable cause is a level of evidence that is sufficient to induce a judge into concluding that it is more likely than not that the place to be examined contains evidence of crimes. In order to seek probable cause, the government must first have an articulable suspicion about the person or place it has targeted. Were this not in the law, then nothing would stop the government from fishing expeditions in pursuit of anyone it wants to pursue. And fishing expeditions turn the presumption of liberty on its head. The presumption of liberty is based on the belief that our rights are natural to us and that we may exercise them without a permission slip from the government and without its surveillance.

Until last week, that is. Last week Congress, by authorizing the massive NSA spying to continue and by authorizing the spies to share what they have seized with law enforcement, basically permitted the fishing expeditions that the Fourth Amendment was written to prevent.

How can the president and Congress defy the Constitution, you might ask? Hasn't every member of the government taken an oath to uphold the Constitution? Doesn't the Constitution create the presidency and the Congress? How can politicians purport to change it? The answers to these questions are obvious, as is the belief of most of those in government that they can write any law and regulate any behavior and ignore the Constitution they have sworn to uphold whenever they want, so long as they can get away with it.

NEXT: Brickbat: Don't Say That

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 or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. A spending bill can counteract the Bill of Rights. Look it up. It’s in the Constitution. (Somewhere in the back, I think.)

    1. I’m flipping the pages,here it is,FYTW

      1. Cheater. That clause isn’t in the Constitution. It’s on a cocktail napkin stapled to the back.

  2. It’s just so depressing.

  3. This would be true except for the fact that the NSA is a FOREIGN intelligence agency. They are NOT- repeat, NOT – charged with spying on American citizens, and in fact have to drop all surveillance of their foreign targets if they travel to American soil. If you are worried about domestic spying, I would take it up with the FBI.

    1. Your not living in the real world,they are spying inside this country and reports have tied them to giving evidence to law enforcement.

      1. “Monty” seems to be oblivious to the fact that Snowden’s leaks have confirmed the NSA spies on Americans in America, and also gives evidence they find regarding drugs, etc. to law enforcement and helps them lie about where they got it. So “Monty” is either an idiot or a dishonest troll. Actually, why not both?

        1. Oh, well if you read it on the internet it must be true, then…

          1. Shorter Monty: I’ve got nothing.

          2. Wow, do you click your ruby slippers together to get home?

    2. This is either sarcasm or retardedness; can’t tell which.

      1. Monty could be the sort of disinformation that Cass Susstein had advocated when government is confronted with its misdeeds. His comments are dimwitted enough to be the product of a government program.

    3. Monty, how do you square your assertion that the NSA does absolutely nothing within our borders with the fact that the spending bill recognizes and ratifies massive data collection within our borders?

      1. Show me the language that contradicts Smith Vs Maryland in the bill and I will concede. There is no TARGETED intentional collection from the agency within domestic borders and anything that comes through is INCIDENTAL.

        1. yeah,they just happen to find this information and pass it on.,is this Mike Rogers?

        2. There is no TARGETED intentional collection from the agency within domestic borders and anything that comes through is INCIDENTAL.

          We know its not targeted, you idiot. They are sweeping up masses of data with no justification or cause whatsoever, “just in case”. That’s the problem, and that’s why its a violation of the Constitution.

          1. And do you think that all that data is looked at? Evaluated? Processed in any way by a human being?

            1. And that data that you are referring to is mostly metadata that is not subject to 4A protections under Maryland vs Smith. Unless you show me some goddamn actual verbiage of the bill that says otherwise.


      1. That linked to nothing, dude.

  4. And the IRS has FAR more access to your information and can make life FAR more unpleasant for you than the NSA. And most of them have badges, while some of them have guns. No one at NSA has that shit.

    1. Sorry NSA drone, we’re not limited in our dislike and distrust of government. We have distain and emnity to spare for all branches and agencies!

    2. authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments

      I guess you overlooked that part.

    3. How long have you been working for the government? You can’t be this stupid AND make these kind of statements. The obvious conclusion is that you are on the payroll.

  5. Andy was going so well until the last paragraph.

    1. How did he make it so far before falling off the wagon? What drives him to do this? Why is it of such interest to Reasonoids?

      I’m just axin’ questions here…

  6. NSA related – good thing we HAVE the NSA, or the NORKs never could have carried out that hack against Sony. Cause that kind of foreign “cyberterrorism” is – in part – what the NSA is there to prevent.

    And they did, so therefore, it’s all worth it.

    Hey….wait a second…

    1. Don’t be ridiculous, the NSA is too busy spying on Americans to catch any foreign saboteurs.

    2. Just like Ferguson needs militarized police, in order to stop looters, etc.

    3. Sounds like a scam to me.

    4. Whoever said that Sony should just release The Interview online for free had it right. Failing that, some millionaire should buy the rights and make a fortune selling the movie with all this free publicity.

      1. Sony has to be trying to figure out a way to capitalize on the prevailing narrative that seeing a fucking Seth Rogen stoner comedy is patriotic. (Never mind that people who have looked at the exploit’s code have said NK’s involvement is dubious. Good narrative is good.) Great PR for a movie that’s probably a piece of shit. I predict a release at some point that will make a ton of money.

    5. If the NSA would use its vast computing and surveillance power to stop spam e-mail and robocalls, I might change my mind. Instead, they just seem to share information to prosecute victimless crimes.

  7. OT: The God Squad versus The Kochtopus:…..-koch.html

    It harkens back to a 2012 Politico article where he [David Koch]said, “I believe in gay marriage,” pointing out that he openly supported legal abortion as a Libertarian party candidate in 1980.

    Marriage Supporter, this is exactly the problem. Millionaires and billionaires are lining up in support of this radical social agenda… even on the right! And I need your help to stop it!

    1. I am going to take you as being sincere. So, I am going to give you my Christian explanation of why we disagree.

      The Lord my God, gave his people free will, the ability to chose, so that they could freely chose to follow Him and His laws or sin. Just as virtue has no meaning without temptation, Salvation must be chosen with repentance.

      This is important because when you attempt personally, or via surrogates, to force people to follow God’s laws you are committing as SIN. You are putting yourself above God, placing your judgement above His, Making YOURSELF a false god.

      You are also depriving those who are forced the right to chose righteousness for themselves. Your attempt to limit temptation, even as Christ was tempted, has the effect of thwarting God’s will and diverting those you force from the need to chose Him.

      So even though I believe that Homosexual relations are sinful, just as adultery is sinful, it would be a sin to FORCE others to not engage in them. My actions must be limited to encouraging them to avoid sin and persuading them what is sinful.

      This is why I believe Christians should all be libertarians.

      1. And you tell ME “You can’t be this stupid AND make these kind of statements.”

        Physician, heal thyself!

        1. Peter King,is that you?

          1. You’re HALF- RIGHT!!!

            1. so,small peter?

              1. I AM A KING!!!

                1. King of the Maroons!

                  1. I was a maroon, too! Damn, you are good at this!

  8. Someone should redo “A Christmas Carol” with Scrooge as an old Congressman. “I am the Ghost of Constitution Past!”

  9. Yesterday I picked up a brand new Lotus Esprit after making $6059 this ? 4 weeks past an would you believe $10 thousand this past-month; this is actually the most-comfortable work I’ve had . I actually started 10-months ago and pretty much immediately got minimum $80 per-hr . Get More Info @
    Handsome earning dream is just a click away…..

  10. Valerie `s posting is shocking… on saturday I bought a great new Jaguar XJ after I been earnin $6211 this last four weeks an would you believe 10k this past month . it’s by-far my favourite-work I’ve ever done . I started this eight months/ago and immediately startad bringin home over $71… per hour .
    am impresses but join this site and earn money easily.

  11. Valerie `s posting is shocking… on saturday I bought a great new Jaguar XJ after I been earnin $6211 this last four weeks an would you believe 10k this past month . it’s by-far my favourite-work I’ve ever done . I started this eight months/ago and immediately startad bringin home over $71… per hour .
    am impresses but join this site and earn money easily.

  12. As usual, the Judge fails to fully inform.
    Pursuant to the Declaration of Independence:
    Job #1 = secure endowed rights,
    Job #2 = govern those who consent.
    CAVEAT : consent waives rights.

    “What I do say is that no man is good enough to govern another man without that other’s consent. I say this is the leading principle, the sheet-anchor of American republicanism. Our Declaration of Independence says: “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
    – – – Abraham Lincoln, Speech at Peoria, Illinois (1854)

    As Lincoln reminds us, under the republican form, promised by the USCON, instituted by the Declaration of Independence, NO MAN (nor American government) is good enough to govern you without your consent.

    You must learn HOW and WHEN you gave consent and decide if you wish to continue or withdraw that consent.

    Once you give consent, all bets are off.

Please to post comments

Comments are closed.