Judge Andrew P. Napolitano*
When German Chancellor Angela Merkel celebrated the opening of the new U.S. embassy in Berlin in 2008, she could not have imagined that she was blessing the workplace for the largest and most effective gaggle of American spies anywhere outside of the U.S.
It seems straight out of a grade-B movie, but it has been happening for the past eleven years: The NSA has been using Merkel as an instrument to spy on the president of the United States. We now know that the NSA has been listening to and recording Merkel’s cellphone calls since 2002. In 2008, when the new embassy opened, the NSA began using more sophisticated techniques that included not only listening, but also following her. Merkel uses her cellphone more frequently than her landline, and she uses it to communicate with her husband and family members, the leadership of her political party, and her colleagues and officials in the German government.
She also uses her cellphone to speak with foreign leaders, among whom have been President George W. Bush and President Obama. Thus, the NSA -- which Bush and Obama have unlawfully and unconstitutionally authorized to obtain and retain digital copies of all telephone conversations, texts and emails of everyone in the U.S., as well as those of hundreds of millions of persons in Europe and Latin America -- has been listening to the telephone calls of both American presidents whenever they have spoken with the chancellor.
One could understand the NSA’s propensity to listen to the conversations of those foreign leaders who wish us ill. And one would expect that it would do so. But the urge to listen to the leadership of our allies serves no discernible intelligence-gathering purpose. Rather, it fuels distrust between our nations and in the case of Merkel exacerbates memories of the all-seeing and all-hearing Stasi, which was the East German version of the KGB that ruled that police state from the end of World War II until it collapsed in 1989. Merkel was raised in East Germany, and she has a personal revulsion at the concept of omnipresent state surveillance.
Obama apparently has no such revulsion. One would think he’s not happy that his own spies have been listening to him. One would expect that he would have known of this. Not from me, says Gen. Keith Alexander, the director of the NSA, who disputed claims in the media that he told Obama of the NSA spying network in Germany last summer. Either the president knew of this and has denied it, or he is invincibly ignorant of the forces he has unleashed on us and on himself.
When Susan Rice, Obama’s national security advisor, was confronted with all of this by her German counterpart, she first told him the White House would deny it. Then she called him to say that the White House could not deny it, but the president would deny that he personally knew of it.
How did we get here? What are the consequences of a president spying on himself? What does this mean for the rest of us?
Neither Bush nor Obama has had a strong fidelity to the Constitution. They share the views of another odd couple of presidents from opposing political parties, Teddy Roosevelt and Woodrow Wilson, in that the Constitution is not the supreme law of the land as it proclaims to be, but rather a guideline that unleashes the president to do all that it does not expressly forbid him to do. In the progressive era 100 years ago, that presidential attitude brought us the Federal Reserve, the federal income tax, Prohibition, World War I, prosecutions for speech critical of the government and the beginnings of official modern government racial segregation.
That same attitude in our era has brought us the Patriot Act, which allows federal agents to write their own search warrants, government borrowing that knows no end -- including the $2 trillion Bush borrowed for the war in Iraq, a country which is now less stable than before Bush invaded, and the $7 trillion Obama borrowed to redistribute -- and an NSA that monitors all Americans all the time. In the case of the NSA spying, this came about by the secret orders of Bush and Obama, animated by that perverse TR/Wilsonian view of the Constitution and not by a congressional vote after a great national debate.
Just as people change when they know they are being watched, the government changes when it knows no one can watch it. Just as we can never be ourselves when we fear that we may need to justify our most intimate thoughts to an all-knowing government, so, too, the government knows that when we cannot see what it is doing, it can do whatever it wants. And it is in the nature of government to expand, not shrink. Thomas Jefferson correctly predicted that 175 years ago.
But spying on yourself is truly asinine and perhaps criminal. You see, the president can officially declassify any secrets he wants, but he cannot -- without official declassification -- simply reveal them to NSA agents. One can only imagine what NSA agents learned from listening to Bush and Obama as they spoke to Merkel and 34 other friendly foreign leaders, as yet unidentified publicly.
Now we know how pervasive this NSA spying is: It not only reaches the Supreme Court, the Pentagon, the CIA, the local police and the cellphones and homes of all Americans; it reaches the Oval Office itself. Yet when the president denies that he knows of this, that denial leads to more questions.
The president claims he can start secret foreign wars using the CIA, secretly kill Americans using drones, and now secretly spy on anyone anywhere using the NSA. Is the president an unwitting dupe to a secret rats’ nest of uncontrolled government spies and killers? Or is he a megalomaniacal, totalitarian secret micromanager who lies regularly, consistently and systematically about the role of government in our lives?
Which is worse? What do we do about it?
*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 seven books on the U.S. Constitution. The most recent is "Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom."