Judge Andrew P. Napolitano*
What if the National Security Agency (NSA) knows it is violating the Constitution by spying on all Americans without showing a judge probable cause of wrongdoing or identifying the persons it wishes to spy upon, as the Constitution requires? What if this massive spying has come about because the NSA found it too difficult to follow the Constitution?
What if the Constitution was written to keep the government off the people’s backs, but the NSA and the president and some members of Congress have put the NSA not only on our backs, but in our bedrooms, kitchens, telephones and computers? What if when you look at your computer screen, the NSA is looking right back at you?
What if the NSA really thought it could keep the fact that it is spying on all Americans and many others throughout the world secret from American voters? What if Congress enacted laws that actually delegate some congressional powers to elite congressional committees -- one in the Senate and one in the House? What if this delegation of power is unconstitutional because the Constitution gives all legislative powers to Congress as a whole and Congress itself is powerless to give some of its power away to two of its secret committees? What if the members of these elite committees who hear and see secrets from the NSA, the CIA and other federal intelligence agencies are themselves sworn to secrecy?
What if the secrets they hear are so terrifying that some of these members of Congress don’t know what to do about it? What if the secrecy prohibits these congressional committee members from telling anyone what they know and seeking advice about these awful truths? What if they can’t tell a spouse at home, a lawyer in her office, a priest in confessional, a judge when under oath in a courtroom, other members of Congress or the voters who sent them to Congress?
What if this system of secrets, with its promises not to reveal them, has led to a government whose spies have intimidated and terrified some members of Congress? What if one member of Congress -- Sen. Jay Rockefeller, a Democrat from West Virginia -- wrote to then-Vice President Dick Cheney and voiced fears that totalitarianism is creeping into our democracy? What if he wrote that letter in his own hand because he feared he might be prosecuted if he dictated it to a secretary or gave it to his secretary for typing? What if he was terrified to learn what the spies told him because he knew he could not share it with anyone or do anything about it?
What if the NSA’s chief apologist in Congress -- Sen. Dianne Feinstein, a Democrat from California -- took to the only safe place in the world where she could reveal what she learned from the spies and not be prosecuted for violating her oath of secrecy and there revealed a secret? What if that place is the Senate floor, and what if, while there, she revealed that she approved of the NSA spying on all Americans but disapproved of the CIA spying on her staff? What if it is unlawful and unconstitutional for the CIA to spy on anyone in the United States -- whether private citizen, illegal alien or member of a Senate staff?
What if the equality of the branches of government is destroyed when one of them spies on the other? What kind of a president spies on Congress? What kind of members of Congress sit back and let themselves become victims of spying? What if Congress could stop all spying on all Americans by a simple vote? What if Congress could stop the president from spying on its own members with a simple vote? What if Congress is afraid to take these votes?
What if secret government is unaccountable precisely because it is secret? What if the people’s representatives in government have a moral obligation to reveal to their constituents that the president’s spies are spying on all of us, and they -- members of Congress -- have not lifted a finger to stop it? Would we all vote differently if we knew the secrets the government has shared with a select few but kept from the rest of us? What if your own representatives in the House and the Senate are lying to you because of fear of the consequences of revealing secrets?
What if the NSA chief claimed to a congressional committee -- one of those with which he secretly shares secrets -- that all this spying has stopped 57 terror plots? What if the next day he changed that number to three plots? What if he has declined to say what those three plots were? What if a federal judge found that all this spying has not prevented any identifiable plots?
What if all this spying doesn’t work? What if the NSA has too much data about all of us? What if the president knowingly declined to uphold the Constitution and instructed his spies to do the same? What if the NSA is so accustomed to spying on all of us all the time that it lacks the ability to obtain probable cause and to identify the persons upon whom it needs to spy? What if the government’s culture of secrecy and spying has taken on a life of its own? What if even those who started it are afraid to stop it?
What if the NSA missed the shoe bomber, the underwear bomber, the Ft. Hood massacre, the Times Square bomber, the Boston Marathon bombers, the coup in Kiev and the Russian invasion of Ukraine? What if the NSA wasted its time spying on Aunt Tillie in Des Moines and the Pope in Rome and Chancellor Merkel in Berlin, instead of Vladimir Putin in Moscow?
What if secrecy has replaced the rule of law? What if that replacement has left us in the dark about what the government knows and what it is doing? What if few in government believe in transparency? What if few in government believe in the Constitution?
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.