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The NSA Scandal Violates the Lessons of Our History and Our Constitution

We're tumbling down a slippery slope.

When British soldiers were roaming the American countryside in the 1760s with lawful search warrants with which they had authorized themselves to enter the private homes of colonists in order to search for government-issued stamps, Thomas Paine wrote, "These are the times that try men's souls." The soul-searching became a revolution in thinking about the relationship of government to individuals. That thinking led to casting off a king and writing a Constitution.

What offended the colonists when the soldiers came legally knocking was the violation of their natural right to privacy, their right to be left alone. We all have the need and right to be left alone. We all know that we function more fully as human beings when no authority figure monitors us or compels us to ask for a permission slip. This right comes from within us, not from the government.

Thomas Jefferson made the case for natural rights in the Declaration of Independence ("endowed by their Creator with certain inalienable rights"). The Bill of Rights was added to the Constitution to reduce to writing the guarantees of personal liberty. ("Congress shall make no law abridging the freedom of ... religion ... speech ... press ... assembly..." "No person shall ... be deprived of life, liberty, or property, without due process of law..." "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.")

And, of course, to prevent the recurrence of soldier-written search warrants and the government dragnets and fishing expeditions they wrought, the Constitution mandates that only judges may issue search warrants, and they may do so only on the basis of probable cause of crime, and the warrants must "particularly describ(e) the place to be searched, and the persons or things to be seized."

Last week, we discovered that the government has persuaded judges to issue search warrants not on the constitutionally mandated basis, but because it would be easier for the feds to catch terrorists if they had a record of our phone calls and our emails and texts. How did that happen?

In response to the practice of President Richard Nixon of dispatching FBI and CIA agents to wiretap his adversaries under the guise of looking for foreign subversives, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. It prohibited all domestic surveillance in the U.S., except if authorized by a judge based on probable cause of crime, or if authorized by a judge of the newly created and super-secret FISA court. That court was empowered to issue warrants based not on probable cause of crime, but on probable cause of the target being an agent of a foreign power.

The slippery slope began.

Soon the feds made thousands of applications for search warrants to this secret court every year; and 99 percent of them were granted. The court is so secret that the judges who sit on it are not permitted to keep records of their decisions. Notwithstanding the ease with which the feds got what they wanted from the FISA court, Congress lowered the standard again from probable cause of being an agent of a foreign power to probable cause of being a foreign person.

After 9/11, Congress enacted the Patriot Act. This permitted federal agents to write their own search warrants, as if to mimic the British soldiers in the 1760s. It was amended to permit the feds to go to the FISA court and get a search warrant for the electronic records of any American who might communicate with a foreign person.

In 30 years, from 1979 to 2009, the legal standard for searching and seizing private communications -- the bar that the Constitution requires the government to meet -- was lowered by Congress from probable cause of crime to probable cause of being an agent of a foreign power to probable cause of being a foreign person to probable cause of communicating with a foreign person. Congress made all these changes, notwithstanding the oath that each member of Congress took to uphold the Constitution. It is obvious that the present standard, probable cause of communicating with a foreign person, bears no rational or lawful resemblance to the constitutionally mandated standard: probable cause of crime.

Now we know that the feds have seized the telephone records of more than 100 million Americans and the email and texting records of nearly everyone in the U.S. for a few years. They have obtained this under the laws that permit them to do so. These laws -- just like the ones that let British soldiers write their own search warrants -- were validly enacted, but they are profoundly unconstitutional. They are unconstitutional because they purport to change the clear and direct language in the Constitution, and Congress is not authorized to make those changes.

These laws undermine the reasons the Constitution was written, one of which was to guarantee the freedom to exercise one's natural rights. These laws directly contradict the core American value that our rights come from our humanity and may not be legislated away -- not by a vote of Congress, not by the consensus of our neighbors, not even by agreement of all Americans but one.

The government says we should trust it. Who in his right mind would do so after this? President Obama says the feds have your phone records but are not listening to your calls and will not read your emails. Who would believe him? James Clapper, the director of national intelligence, testified that the feds were not gathering vast data on Americans. Who would trust him? The NSA says that Congress knew about all this, but its members were prohibited from telling the American people. What kind of a democracy is that?

The modern-day British soldiers -- our federal agents -- are not going from house to house; they are going from phone to phone and from computer to computer, enabling them to penetrate every aspect of our lives. If anything violates the lessons of our history, the essence of our values and the letter of the Constitution, it is this.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. 

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  • PS||

    That's what I'm talkin' 'bout. Give 'em hell, Judge.

  • Floridian||

    Didn't the Boston soldiers already write their own warrants and do house to house searches? If I remember correctly the soldiers were praised for their bravery by the colonialist.

  • Ted S.||

    It took me a minute or two to figure out whether you were really talking about the British soldiers in Boston in the 1770s, or the Boston-area cops looking for the Tsarnaevs. :-(

  • Floridian||

    After posting I realized I should have added terrorist.

  • Live Free or Diet||

    Actually, I thought leaving it open was brilliant.

  • sarcasmic||

    They are unconstitutional because they purport to change the clear and direct language in the Constitution

    "General welfare... regulate commerce... necessary and proper"

    From what I'm reading, the federal government can do anything without restriction.

  • np||

    Kurt Godel agrees:

    On December 5, 1947, Einstein and Morgenstern accompanied Gödel to his U.S. citizenship exam, where they acted as witnesses. Gödel had confided in them that he had discovered an inconsistency in the U.S. Constitution, one that would allow the U.S. to become a dictatorship.

    Einstein and Morgenstern were concerned that their friend's unpredictable behavior might jeopardize his chances. Fortunately, the judge turned out to be Phillip Forman. Forman knew Einstein and had administered the oath at Einstein's own citizenship hearing.

    Everything went smoothly until Forman happened to ask Gödel if he thought a dictatorship like the Nazi regime could happen in the U.S. Gödel then started to explain his discovery to Forman. Forman understood what was going on, cut Gödel off, and moved the hearing on to other questions and a routine conclusion.[16][17]
  • Bob Straub||

    Mr. Napolitano has written in previous articles that the government using those phrases to do whatever it wants makes no sense, given the explicit powers of and limitations on it elsewhere in the document. The founders weren't that stupid. The conflict can be resolved by assuming that the phrases didn't mean then what many want them to mean now.

    Enter Sheldon Cooper mode: Oh, was that sarcasm? Exit same.

  • np||

    The problem is that intent was not written into the document. There are loopholes--vague, ambiguous words and undefined limits. Given the nature positive legalism, a government of unlimited powers and citizens of limited, enumerated rights is the natural result.

    Even Jefferson realized the mistake:

    The Constitution is a mere thing of wax in the hands of the Judiciary, which they may twist and shape in any form they please.

    I regret that I am now to die in the belief that the useless sacrifices of themselves by the generation of '76 to acquire self-government and happiness to their country, is to be thrown away by the unwise and unworthy passions of their sons, and that my only consolation is to be that I shall not live to see it.
  • Inigo M.||

    Good thing he didn't live to see the idiots around today who actually are ready to DISMISS the protections written into the constitution because "the founding fathers were slave owners anyway, so they were clueless about rights." (Never mind that not all of them even had slaves, that's besides the point to these modern morons.)

    This kind of thing is unbelievable to me. I suppose we should also ignore Plato's geometry because, as one of those ancient Greeks, there's a good chance Plato may have fancied young boys. And never mind about Einstein's Theory of Relativity, I guess. Einstein was a serial adulterer, so why should we trust what he said about science?

    My own consolation is that I may be dead by the time the next few decades lowers the stupidity level of the general public to the point where they won't even know Thomas Jefferson from Thomas the Tank Engine.

  • Scruffy Nerfherder||

    The FBI and the NSA are just trying to protect us from the evil French and Indian threat.

  • Rich||

    What offended the colonists when the soldiers came legally knocking was the violation of their natural right to privacy, their right to be left alone.

    I like the tack the Judge is taking here.

    These days, pushing the "the NSA's activities *offend* us" meme will probably get more leverage than "this is blatantly unconstitutional".

  • Scruffy Nerfherder||

    If the government truly gave a shit, I might agree with you. But to them, we are merely plebes. There is no respect for the will of the people when the agencies are involved. They will only do what they have to do to settle the commotion (which will be next to nothing) and continue on with business as usual. Either Congress or SCOTUS needs to stamp out the agencies' powers.

  • Rich||

    Either Congress or SCOTUS needs to stamp out the agencies' powers.

    *** rising intonation ***

    What about Executive Order?

  • Eduard van Haalen||

    "Thomas Jefferson made the case for natural rights in the Declaration of Independence ("endowed by their Creator with certain inalienable rights")."

    That's why all those ancient documents are outdated; they manifest belief in a Sky-Daddy. Today we're more enlightened than those 100-year-ago writings of wig-wearing poofters.

  • Bob Straub||

    Disbelief in a Sky-Daddy doesn't automatically mean that there are no natural rights. Mr. Napolitano believes they are god-given, but we are able to discover, declare, and respect a similar set of them by ourselves.

  • Libertymike||

    The biggest sky daddy of them all is government.

  • Libertymike||

    Jesus H. Christ sure beats government.

  • Bill Dalasio||

    What does the H. stand for?

  • SlowburnAZ||

    Hammurabi?

  • Live Free or Diet||

    Hammertime!

  • sasob||

    Hallelujah?

  • sasob||

    Holy?

  • ||

    "These laws -- just like the ones that let British soldiers write their own search warrants -- were validly enacted, but they are profoundly unconstitutional. They are unconstitutional because they purport to change the clear and direct language in the Constitution, and Congress is not authorized to make those changes."

    In other words these are no laws at all.

    Not to worry though, Obumbles swears we can trust him and many congresscritters tell us this is all legal and A-OK. Why, even John Stossel stepped up yesterday and said he had no problem with it at all. I mean, its not like government goons are interrogating people and searching their homes because of opinions they have expressed on twitter. Its no like they are threatening to violate people's second amendment rights because they exercised their first amendment rights.

    I wouldnt be a bit surprised if President Not My Fault started wearing the military uniform of a 50 star general , five lbs of medals and badges, and an enourmous hat emblazoned with gold wings.

  • Rich||

    Something like this?

  • Jordan||

    Nah, more like the North Korean generals who have so many medals that they have to pin them on their pants legs.

  • ||

    Take your pick. I like Than Shwe, #6. That is what I had in mind.

    http://www.google.com/imgres?i.....CCYQ9QEwBg

  • ||

    But the hat needs to be more like the size of Lukashenko's at the bottom of the page.

  • ||

  • wwhorton||

    I like Raul Castro's getup. He sort of looks like he's coming to read your meter, or maybe do a roofing quote.

  • GroundTruth||

    Another good one, Judge!

    Keep 'em coming!

    (But sorry that there are so many subjects so ripe for comment.)

  • DEATFBIRSECIA||

    Stossel: Bad!

    Napolitano: Good!

  • elric1911||

    they are Unalienable rights, not Inalienable rights, there is a significant difference

  • LifeStrategies||

    There's a book, or chapter of a book, called You're probably a Federal Criminal by Judge Alex Kozinski. It made quite a stir, Google the title to find it...

    If some faceless government bureaucrat decides he wants to get you, for any reason, then it seems that he now has no problem in doing so.

    Scary. What happened to the rule of law?

  • Anders||

    "Tumbling"
    "Slippery Cliff"

    Not really. We've been pushed out of the back of the Presidential Low-Rider and are currently descending into the Marianas Trench.

  • IceTrey||

    They haven't seized the phone records for millions they seized the phone records of 4 or 5 phone companies. Phone records don't belong to you they belong to the phone company. The Judge is being disingenuous.

  • Marty .||

    I don't agree. Besides, you're arguing the wrong point. Why is the government entitled to the details of a contract and service provided to me by a private company?

    The warrant(s) are NOT LEGAL, because suspicion of communication is not enough for a dragnet search.

  • BillEverman||

    He's not being disingenuous; the Telecommunications Act of 1996 affirms that you have a privacy interest in your phone records, and that was supported by a later FTC ruling. The Telecommunications Act also requires the phone companies to protect the confidentiality of those records. Obviously, those protections would not apply to a lawful court order, but this looks more like a general warrant--which is blatantly unconstitutional--than a lawful court order.

  • DenverJay||

    Not to quibble with an otherwise excellent column, but "not even by agreement of all Americans but one." is not quit accurate. If every American but one decided to amend the Constitution, then they could certainly do so.

  • nikki_burges||

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