Judge Andrew P. Napolitano*
Happy New Year. Just when you thought the NSA spying scandal couldn’t get any worse, it has.
Last week, Sen. Bernie Sanders, I-Vt., wrote to Gen. Keith Alexander, director of the National Security Administration (NSA), and asked plainly whether the NSA has been or is now spying on members of Congress or other public officials. The senator’s letter was no doubt prompted by the revelations of Edward Snowden to the effect that the federal government’s lust for personal private data about all Americans and many foreigners knows no bounds, and its respect for the constitutionally protected and statutorily enforced right to privacy is nonexistent.
The senator’s benign and neutral letter came on the heels of a suggestion by his colleague Sen. Rand Paul, R-Ky., to the effect that Alexander’s boss, Gen. James Clapper, director of national intelligence, perjured himself before a Senate subcommittee when he testified that the NSA is not gathering massive amounts of data from tens or hundreds of millions of Americans. Alexander himself is also on the hook for having testified in a highly misleading manner to a House committee when he was asked whether the NSA has the ability to read emails and listen to phone calls and he stated: “No, we don’t have that authority.”
Thus far, Paul is the only member of Congress possessed of the personal courage to call out Clapper by arguing that working for the government is no defense to lying under oath. The gravity of Paul’s charges was enhanced by revelations subsequent to the Clapper testimony to the effect that Clapper was told in advance of his testimony what questions would be put to him and then declined an offer afterward to correct any misstatements. In a new low for members of Congress, the NSA’s own advocate in the House, Long Island’s Rep. Peter King, R-N.Y., attacked Paul for attacking Clapper for lying under oath. The King argument is: Anything goes when it comes to national security -- even lying under oath, even violating everyone’s constitutional rights, even destroying the freedom you have sworn to protect.
All of this is background to the timing of Sanders’ letter. That Clapper perjured himself before, and Alexander misled, Congress is nothing new. And the punishments for lying to Congress and for misleading Congress are identical: five years per lie or per misleading statement. Hence, the silence from the NSA to Sanders.
Well, it wasn’t exactly silence, but rather a refusal to answer a simple question. The NSA did reply to Sanders by stating -- in an absurd oxymoron -- that members of Congress receive the same constitutional protections as other Americans: that is to say, none from the NSA.
The NSA’s refusal to answer Sanders’ question directly is a tacit admission, because we are all well aware that the NSA collects identifying data on and the content of virtually every email, text message and phone call sent or received in the U.S. In fact, just last week, the secret FISA court renewed the order authorizing massive records collection for the 36th time. If members of Congress are treated no differently than the American public, then the NSA is keeping tabs on every email, text and phone call members of Congress send and receive, too.
That raises a host of constitutional questions. Under the Constitution, Congress and the executive branch are equals. The president -- for whom the NSA works -- can no more legally spy on members of Congress without a search warrant about the members to be spied upon than Congress can legally spy on the president. Surely the president, a former lecturer in constitutional law at the University of Chicago Law School, knows this.
There was a time when the NSA’s failure to answer such a straightforward question as Sanders has asked would have led to hearings and bipartisan investigations. However, Democrats are largely silent, choosing party and personality over principle, and Republicans know all of this started under President George W. Bush and are afraid to open a can of worms -- except for King, who apparently likes to be spied upon.
Under laws that have been held to be both unconstitutional and constitutional by two different courts, the NSA can obtain surveillance orders with no articulated suspicion about those to be spied upon, even though the Fourth Amendment requires probable cause, a high level of individualized suspicion.
Basically, the NSA can tell a FISA judge that two thugs in area code 212 are chatting with five jerks in area code 312, and they are all texting six malcontents in area code 310. It knows who they are and where they are, but instead of going to New York and Chicago and Los Angeles and following them and investigating them, instead of asking for a search warrant to spy on just them, the NSA wants a warrant to spy on everyone in those area codes. It is a lot easier for our spies to throw a few switches at a telecom office than to burn shoe leather. If authorities in New Jersey had asked this of me when I was on the bench there, I’d have thrown them out of my courtroom because the Constitution expressly forbids this.
Just as disturbing as the revelation that the NSA is spying on members of Congress is the fear of what the NSA does with the information it collects. In September, The Guardian newspaper reported that the NSA shares raw, unfiltered information it has gathered with some foreign nations, including England and Israel. It also reported that the NSA shares this raw data with its boss: President Obama. Hence, Sanders’ letter.
The lawlessness continues. The president's NSA spies remain out of control. They are spying on Congress and the courts; the military and the press; the CIA and other spies; friends, foes and the Pope. If we fail to stop this soon, the next generation of Americans will not even know what privacy is.
*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."