Judge Andrew P. Napolitano*
Initially, I was gratified to learn that Sen. Dianne Feinstein, D-Calif., the chair of the Senate Intelligence Committee, was unafraid to take on the Central Intelligence Agency (CIA) over the issue of domestic spying.
The CIA is limited by its charter to stealing secrets from foreigners outside the U.S. However, in a recent dust-up, Feinstein took to the Senate floor to accuse the CIA of spying on staff members of her committee while they were examining CIA documents in Virginia. This may be the first acknowledgment by any senior government official who walks the halls of the intelligence community that the CIA engages in domestic spying.
For five years, the Senate Intelligence Committee has been examining classified CIA materials involving CIA use of torture during the Bush administration. It is doing so because a now retired CIA official admitted destroying evidence of torture. We may never know what torture the CIA was authorized to engage in, but we can conclude that along with its counterpart in the House, the Senate Intelligence Committee has either looked the other way or expressly approved CIA behavior that well transcends its charter. This unlawful behavior includes not only torture, but also killing Americans via the use of drones, and small-scale unpublicized warfare.
So, you can imagine the glee this defender of personal freedom and the rule of law initially felt when I learned that the CIA’s erstwhile champion had had what appeared to be a change of heart. Feinstein surely is the most effective defender of the intelligence community on Capitol Hill. Until last week, she publicly supported and shielded but never criticized the massive spying on Americans by the National Security Agency (NSA), the CIA’s cousin. She must have supported the CIA's torture, killings and warfare -- but something about the torture caused her to induce her committee to engage in a full-scale investigation of the Bush-era torture her committee must have approved.
I say “must have” because, in this weird post-9/11 world, Congress does not review the CIA’s behavior or expand its powers; these two congressional committees do. Because Congress chartered the CIA, and because the CIA charter does not contemplate behavior beyond stealing foreign secrets, and because only Congress can change federal laws, any expansion of the CIA’s duties not authorized by Congress is unconstitutional -- and yet aside from the point I address here.
The point I address here is that Feinstein’s outrage was directed at CIA domestic spying for the wrong reasons. She not only expressed no outrage over NSA spying, including upon her 37 million California constituents, but she approved it. The CIA behavior that she condemns is the unapproved or unreported torture and the domestic spying on a dozen persons in another branch of government. The NSA behavior that she approves is spying on all Americans all the time. All of this behavior goes to the heart of personal liberty in a free society.
At that heart is the principle of personal sovereignty -- the idea that individuals are sovereign and the state is merely one instrument with which to protect that sovereignty.
Yet the government of which Feinstein approves has been assaulting personal sovereignty by destroying personal privacy. Privacy is not only a natural right -- it exists by virtue of our humanity -- but it has sound historical and textual roots. A natural right is an area or zone of personal behavior that may not be interfered with by the government, no matter whose good that interference might serve.
The historical roots of privacy are the now well-known numerous instances of colonial antipathy toward the British practice of general warrants. General warrants were issued by British judges to British agents in London in secret, and they permitted and authorized British agents in America to search wherever they wished for whatever they sought. Sound familiar? The textual roots of privacy have been identified by the Supreme Court in numerous places in the Constitution, not the least of which is the Fourth Amendment prohibition of searches and seizures without warrants that identify the target and that are based on the probable cause of criminal behavior of the target.
Feinstein’s farrago against the CIA was forceful yet personal. She has defended certain forms of torture when employed by the CIA to obtain intelligence from the victims of the torture. Yet she has deplored certain forms of torture -- without identifying them -- because the CIA apparently did not seek the permission of the congressional committees in advance or misrepresented the nature and severity of the torture to the committees afterward.
Her committee was undertaking an investigation into this unreported or under-reported torture when it noticed that the CIA had hacked into its computers. That hacking, which the CIA has denied, caused her to rip into the CIA on the Senate floor.
Do you see where Feinstein and her colleagues have taken us? They have taken us to a secret government willing to crush natural rights to privacy and bodily integrity -- but only if Feinstein and her dozen or so congressional colleagues approve.
Is she seeking to expose torture because it is immoral, unlawful, unconstitutional and un-American or because she had not approved of it? Is she angry because the CIA illegally spied in the U.S. or because the CIA illegally spied in the U.S. on her staff? Who can be intellectually honest about anger over spying on a handful of colleagues and indifferent to or even supportive of spying on hundreds of millions of Americans?
You get the picture. She has no problem with experiments with our liberties, unless she and her staff are the victims.
If the government truly derives its powers from the consent of the governed, it must recognize that in areas of natural rights -- speech, press, worship, self-defense, travel, bodily integrity, privacy, etc. -- no one, not even a well-intended majority, can consent to their surrender for us. James Madison knew this when he argued that experiments with our liberties would be the beginning of the end of personal freedom.
We are now well beyond that beginning.
*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.”