Judge Andrew P. Napolitano*
What if the current massive spying on Americans began with an innocent secret executive order signed by President Reagan in 1986? What if Reagan contemplated that he was only authorizing American spies to spy on foreign spies unlawfully present in the U.S.?
What if Reagan knew and respected the history of the Fourth Amendment? What if the essence of that history is the colonial revulsion at the British use of general warrants? What if general warrants were issued by a secret court in London and authorized British agents in America to search wherever they wished and to seize whatever they found? What if the revulsion at this British government practice was so overwhelming that it led to the Revolutionary War against the king?
What if the whole purpose of the Fourth Amendment was to outlaw general warrants? What if the Fourth Amendment specifically guarantees the right to privacy to all in America in their persons, houses, papers and effects?
What if, in order to emphasize its condemnation of general warrants, the Fourth Amendment requires the government to obtain a warrant from a judge before invading the persons, houses, papers or effects of anyone and lays down the preconditions for the issuance of such warrants? What if those preconditions are individualized suspicion and articulated evidence of crime -- called probable cause -- about the specific person whose privacy the government seeks to invade?
What if these principles of constitutional fidelity, privacy and probable cause and the unlawfulness of general warrants have been regarded universally and publicly as quintessentially American values, values that set this nation apart from all others?
What if the administration of President George W. Bush was so embarrassed that 9/11 happened on its watch that it fought a useless public war in Iraq -- which had nothing to do with 9/11 -- and a pernicious private war against American values by unleashing American spies on innocent Americans as to whom there was no individualized probable cause so that it could create the impression it was doing something to keep America safe from another 9/11-like attack?
What if the Bush folks took Reagan’s idea of spying on foreign spies and twisted it so that they could spy on not just foreign spies, but also on foreign persons? What if they took that and leapt to spying on Americans who communicated with foreign persons?
What if they then concluded that it was easier to spy on all Americans rather than just those who communicated with foreign persons? What if they claimed in secret that all this was authorized by Reagan’s executive order and two federal statutes, their unique interpretations of which they refused to discuss in public? What if the Reagan order and the statutes authorized no such thing?
What if The New York Times caught the Bush administration in its massive violation of the Fourth Amendment, whereby it was spying on all Americans all the time without any warrants? What if the Times sat on that knowledge during, throughout and beyond the presidential election campaign of 2004? What if, when the Times revealed all this, the Bush administration agreed to stop spying? What if it didn’t stop?
What if President Obama came up with a scheme to make the spying appear legal? What if that scheme involved using secret judges in secret courts to issue general warrants? What if the Obama administration swore those judges to secrecy? What if it swore to secrecy all in the government who are involved in undermining basic American values? What if it forgot that everyone in government also swears an oath to uphold the Constitution? What if Edward Snowden violated his oath to secrecy in order to uphold his oath to the Constitution, which includes the Fourth Amendment, and spilled the beans on the government?
What if all this spying by the feds has spawned spying by the locals? What if more than 50 local police departments now have received false cell towers from the FBI, but have sworn not to tell anyone about them? What if these towers trick cellphone signals into exposing the content of cellphone conversations to the police? What if the police have done this without the knowledge of the elected representatives who are their bosses? What if they do this without any warrants? What if the Supreme Court last year outlawed police invading cellphones without warrants?
What if both Bush and Obama have argued that their first job is to keep America safe, and they will twist, torture the plain meaning of and even break laws in order to accomplish that job? What if the presidential oath is to enforce all laws faithfully, including ones the president may hate?
What if Bush and Obama have been wrong about the priority of their constitutional duties as president? What if the president’s first job is to preserve the Constitution? What if that includes the Fourth Amendment? What if the president keeps us safe but unfree?
What if invading our freedoms keeps us less safe? What if the president has failed to keep our freedoms safe? What if the government doesn’t like freedoms? What if the government is afraid we will exercise them?
*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.