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President Obama's Parting Shot at Personal Freedom

To make things more convenient for the government, the Obama administration makes it easier for agencies to spy on citizens.

On the way out...Pete Souza/The White HouseOn Jan. 3, outgoing Attorney General Loretta Lynch secretly signed an order directing the National Security Agency — America's 60,000-person-strong domestic spying apparatus — to make available raw spying data to all other federal intelligence agencies, which then can pass it on to their counterparts in foreign countries and in the 50 states upon request. She did so, she claimed, for administrative convenience. Yet in doing this, she violated basic constitutional principles that were erected centuries ago to prevent just what she did.

Here is the back story.

In the aftermath of former President Richard Nixon's abusive utilization of the FBI and CIA to spy on his domestic political opponents in the 1960s and '70s — and after Nixon had resigned from office in the wake of all that — Congress passed the Foreign Intelligence Surveillance Act (FISA), which created a secret court that was charged with being the sole authority in America that can authorize domestic spying for non-law enforcement purposes.

The standard for a FISA court authorization was that the subject of the spying needed to be a foreign person in the United States who was an agent of a foreign power. It could be a foreign janitor in a foreign embassy, a foreign spy masquerading as a diplomat, even a foreign journalist working for a media outlet owned by a foreign government.

The American spies needed a search warrant from the FISA court. Contrary to the Constitution, the search warrant was given based not on probable cause of crime but rather on probable cause of the status of the person as an agent of a foreign power. This slight change from "probable cause of crime" to "probable cause of foreign agency" began the slippery slope that brought us to Lynch's terrible order of Jan. 3.

After the Foreign Intelligence Surveillance Act, numerous other statutes were enacted that made spying easier and that continued to erode the right to be left alone guaranteed by the Fourth Amendment. The Patriot Act permitted FBI agents to write their own search warrants for business records (including medical, legal, postal and banking records), and amendments to FISA itself changed the wording from probable cause "of foreign agency" to probable cause of being "a foreign person" to all Americans who may "communicate with a foreign person."

As if Americans were children, Congress made those sleight-of-hand changes with no hoopla and little serious debate. Our very elected representatives — who took an oath to preserve, protect, and defend the Constitution — instead perverted it.

It gets worse.

The recent USA Freedom Act permits the NSA to ask the FISA court for a search warrant for any person — named or unnamed — based on the standard of "governmental need." One FISA court-issued warrant I saw authorized the surveillance of all 115 million domestic customers of Verizon. The governmental need standard is no standard at all, as the government will always claim that what it wants, it needs.

All these statutes and unauthorized spying practices have brought us to where we were on Jan. 2 — namely, with the NSA having a standard operating procedure of capturing every keystroke on every computer and mobile device, every telephone conversation on every landline and cellphone, and all domestic electronic traffic — including medical, legal and banking records — of every person in America 24/7, without knowing of or showing any wrongdoing on the part of those spied upon.

The NSA can use data from your cellphone to learn where you are, and it can utilize your cellphone as a listening device to hear your in-person conversations, even if you have turned it off — that is, if you still have one of the older phones that can be turned off.

Notwithstanding all of the above gross violations of personal liberty and constitutional norms, the NSA traditionally kept its data — if printed, enough to fill the Library of Congress every year — to itself. So if an agency such as the FBI or the DEA or the New Jersey State Police, for example, wanted any of the data acquired by the NSA for law enforcement purposes, it needed to get a search warrant from a federal judge based on the constitutional standard of "probable cause of crime."

Until now.

Now, because of the Lynch secret order, revealed by The New York Times late last week, the NSA may share any of its data with any other intelligence agency or law enforcement agency that has an intelligence arm based on — you guessed it — the non-standard of governmental need.

So President Barack Obama, in the death throes of his time in the White House, has delivered perhaps his harshest blow to constitutional freedom by permitting his attorney general to circumvent the Fourth Amendment, thereby enabling people in law enforcement to get whatever they want about whomever they wish without a showing of probable cause of crime as the Fourth Amendment requires. That amendment expressly forbids the use of general warrants — search where you wish and seize what you find — and they had never been a lawful tool of law enforcement until Lynch's order.

Down the slope we have come, with the destruction of liberty in the name of safety by elected and appointed government officials. At a time when the constitutionally recognized right to privacy was in its infancy, Justice Louis Brandeis warned all who love freedom about its slow demise. He wrote: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."

Someday we will learn why Obama did this. I hope that when we do, it is at a time when we still have personal liberty in a free society.

COPYRIGHT 2017 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

Photo Credit: Pete Souza/White House

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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  • Tony Cr||

    Andrew...where have you been? "National security" has overridden personal freedom at least since the "Patriot Act" (now there's a misnomer) and, probably, decades before.

  • ||

    Remember the Carnivore program?

  • Cute Little Bunny Rabbit||

    ^ Well done.

  • loveconstitution1789||

    Another reason Obama is one of the worst President ever.

    Luckily, these can be rolled back. Unfortunately, these unconstitutional government actions wont be rolled back.

  • Magnificent Bastard||

    Oh yeah, Trump and Sessions are gonna roll all this back. I remember Sessions crying foul over and over when Bush and Cheney and Alberto pulled these shenanigans. The new administration won't stand for this.

  • sarcasmic||

    Someday we will learn why Obama did this.

    Fuck you, that's why.

  • ||

    He is a totalitarian wannabe. He always was. I would think he did it out of principle. Every despot needs secret police.

    He is part of the crowd that thinks the island prison of Cuba with it's breathtaking inequality between the people and the ruling class is 'authentic' and something to be emulated.

  • Mickey Rat||

    He had a consistant pattern of being very assertive of executive authority. I am not sure there was any issue where Obama acknowledged a constitutional limit on what a President could order.

  • Munge||

    Obozo is and Lynch are both lawless scumbags. Neither of them have followed the constitution or the rule of law they should both be prosecuted.

  • Trigger Hippie||

    I see you, you see me
    Watch you blowin' the lines
    When you're making a scene
    Oh girl, you've got to know
    What my head overlooks
    The senses will show to my heart
    When it's watching for lies
    You can't escape my
    Private eyes(clap)
    They're watching you(clap,clap)
    They see your every move
    Private eyes(clap)
    They're watching you(clap,clap)
    Private eyes
    They're watching you watching
    You watching you watching you

  • Sanjuro Tsubaki||

    When my Baby, When my baby smiles at me I go to Rio De Janeiro
    My-oh me-oh
    I go wild then I have to do the samba, then la Bamba
    Now I'm not the kind of person with a passionate persuasion for dancin' or romancin'
    But I give in to the rhythm and my feet follow the beat of my heart
    When my baby, when my baby smiles at me
    I go to Rio, De Janeiro
    Me salsa fellow
    When my baby smiles at me
    She shines the lanterns of my life
    And I am free at last what a blast!
    Whoa
    When my baby, when my baby smiles at me
    I feel like Tarzan of the jungle
    There on the hot sand
    And in the bungalow
    While monkeys play above-a
    We'll make love-a
    Now I'm not the type to let vibrations
    tickle my imagination easily
    You know that's just not me
    But I turn into a tiger every time I'm beside the one I love

  • Rich||

    As if Americans were children, Congress made those sleight-of-hand changes with no hoopla and little serious debate.

    Oh, FFS, Judge! This shit happens all the time!

  • Enjoy Every Sandwich||

    All of the people with Obama's ballprints on their chins will no doubt have the nerve to complain when Trump uses this power.

  • ||

    I fully expect Obumbles himself to be one of the loudest of those voices.

  • Necron 99||

    Every breath you take and every move you make
    Every bond you break, every step you take, I'll be watching you
    Every single day and every word you say
    Every game you play, every night you stay, I'll be watching you

    Oh, can't you see you belong to me...

  • Sanjuro Tsubaki||

    You asked for it...

    Her name was Lola, she was a showgirl
    With yellow feathers in her hair and a dress cut down to there
    She would merengue and do the cha-cha
    And while she tried to be a star
    Tony always tended bar
    Across the crowded floor, they worked from 8 til 4
    They were young and they had each other
    Who could ask for more?

    [Chorus:]
    At the copa (CO!) Copacabana (Copacabana)
    The hottest spot north of Havana (here)
    At the copa (CO!) Copacabana
    Music and passion were always the fashion
    At the copa.... they fell in love

    His name was Rico
    He wore a diamond
    He was escorted to his chair, he saw Lola dancing there
    And when she finished, he called her over
    But Rico went a bit to far
    Tony sailed across the bar
    And then the punches flew and chairs were smashed in two
    There was blood and a single gun shot
    But just who shot who?

    [Chorus]

    At the copa... she lost her love

    Her name is Lola, she was a showgirl
    But that was 30 years ago, when they used to have a show
    Now it's a disco, but not for Lola
    Still in dress she used to wear
    Faded feathers in her hair
    She sits there so refined, and drinks herself half-blind
    She lost her youth and she lost her Tony
    Now she's lost her mind

    [Chorus]

    At the copa... don't fall in love
    Don't fall in love

  • Citizen X||

    Christ, what an asshole.

  • Jerryskids||

    Now, because of the Lynch secret order, revealed by The New York Times late last week, the NSA may share any of its data with any other intelligence agency or law enforcement agency that has an intelligence arm based on — you guessed it — the non-standard of governmental need.

    From what I understand, that's not even remotely near enough the horrible truth. It's not that the NSA "may share" any of its data, as if the NSA is the one in charge of parceling out the dirt, it's that the other agencies are now allowed to browse through the raw data and take what they want. The NSA has always illegally leaked hot tips to the FBI or CIA on stuff they're not supposed to be tracking - they're supposed to be looking for terrorists, not drug dealers or kidnappers or tax cheats, that's none of their business - now the other agencies don't have to wait for crumbs to be dropped by the NSA, they can hop right up on the table and tear into that juicy turkey.

    It's the standard mission creep/slippery slope/just the tip that we're always told we're silly for worrying about when this shit gets started.

  • Enjoy Every Sandwich||

    That's a good point. I just can't envision the NSA stopping another agency with a declaration like "no, because that would violate the citizen's rights!"

  • The Elite Elite||

    Man, Reason really needs a proofreader. They've published an article claiming it was written by Judge Napolitano, yet there are no rhetorical questions. Clearly written by someone else.

  • Enjoy Every Sandwich||

    Maybe he's being blackmailed by Putin! "Comrade Judge, I will tell the world what you did with those Russian hookers! The peeing, the whole nine yards!"

  • Uncle Jay||

    RE: President Obama's Parting Shot at Personal Freedom
    To make things more convenient for the government, the Obama administration makes it easier for agencies to spy on citizens.

    Well so what?
    Since when do we have the right to question Dear Leader's decisions to enslave us all?
    Don't you realize that personal freedom is so passe and bourgeois?
    It should be blatantly clear by now our ruling elitist filth know what's best for all of us.
    We should let them enslave us more so we can be free to live in a totalitarian state.
    Life will be so much better for all of us little people.

  • GroundTruth||

    Nice to have at least a few people finally coming to see what is going on. Too bad that the judge singles out Obumah though; W (or Chenney) did just as much to move the authoritarian crowd towards their goal.

    I just wish a few more had spoken up 15 years ago.

  • Jima||

    So wouldn't this type of thing give pretty much every American citizen, group, etc. standing to sue the US government for breach of the 4th Amendment? Why do we all just sit back and take it? Shouldn't we fight for this freedom in court? Seriously, WTF?

  • Brochetta's magic (((pants)))||

    Just think what they can do with all that information collected by the CFPB or electronic healthcare records. Why, it's almost like there's a...conspiracy.

  • Nunya||

    Jesus. If you learn no other grammar in your attempts to deceive, at least learn the difference between there and their.

  • sagginfast||

    It was used correctly. There's a conspiracy (There is a conspiracy). What point are you trying to make with their?

  • Alan@.4||

    Where, and when one wonders, will this crap be ended, and when will said ending, and the necessary roll back commence?

  • Hank Phillips||

    Civil asset forfeiture does not require so much as a jaywalking charge, so the looter Star Chamber isn't using your data for law enforcement, but rather, for legalized looting. What you are seeing is straight out of Atlas Shrugged: "But when a society establishes criminals-by-right and looters-by-law—-men who use force to seize the wealth of disarmed victims—-then money becomes its creators' avenger."
    Ironically, this can only make bitcoins--the nearest thing to currency based on kWh--more popular. Once people see the connection between these enactments, market crashes, financial panics and Great Depressions, they may learn to think more kindly of the Libertarian Party.

  • Hank Phillips||

    Whenever the Kleptocracy wants to topple another looter mixed economy it need only hand over Swiss bank account info, motel videos and telephone conversations of politicians, bureaucrats, field-marshals and archbishops and short their stock and currency markets. I suspect this was how TARP was paid for with Europe's ruin. These flash crashes the Kleptocracy struggles to erase down the memory hole are a record of when such information is used or even brandished.

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  • kenzy9||

    In the aftermath of former President Richard Nixon's abusive utilization of the FBI and CIA to spy on his domestic political opponents in the 1960s and '70s — and after Nixon had resigned from office in the wake of all that — العاب فلاش 69
    العاب 69Congress passed the Foreign Intelligence Surveillance Act (FISA), which created a secret court that was charged with being the sole authority in America that can authorize domestic spying for non-law enforcement purposes.

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