Chris Christie vs. Rand Paul

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The dust-up between New Jersey Gov. Chris Christie and Kentucky Sen. Rand Paul over presidential fidelity to the Constitution -- particularly the Fourth Amendment -- was the most illuminating two minutes of the Republican debate last week.

It is a well-regarded historical truism that the Fourth Amendment was written by victims of government snooping, the 1770s version. The Framers wrote it to assure that the new federal government could never do to Americans what the king had done to the colonists.

What did the king do? He dispatched British agents and soldiers into the colonists’ homes and businesses ostensibly looking for proof of payment of the king’s taxes and armed with general warrants issued by a secret court in London.

A general warrant did not name the person or place that was the target of the warrant, nor did it require the government to show any suspicion or evidence in order to obtain it. The government merely told the secret court it needed the warrant -- the standard was “governmental need” -- and the court issued it. General warrants authorized the bearer to search wherever he wished and to seize whatever he found.

The Fourth Amendment requires the government to present to a judge evidence of wrongdoing on the part of a specific target of the warrant, and it requires that the warrant specifically describe the place to be searched or the person or thing to be seized. The whole purpose of the Fourth Amendment is to protect the right to be left alone -- privacy -- by preventing general warrants.

The evidence of wrongdoing that the government must present in order to persuade a judge to sign a warrant must constitute probable cause. Probable cause is a level of evidence sufficient to induce a neutral judge to conclude that it is more likely than not that the government will find what it is looking for in the place it wants to search, and that what it is looking for will be evidence of criminal behavior.

But the government has given itself the power to cut constitutional corners. The Foreign Intelligence Surveillance Act, the Patriot Act and the Freedom Act totally disregard the Fourth Amendment by dispensing with the probable cause requirement and substituting instead -- incredibly -- the old British governmental need standard.

Hence, under any of the above federal laws, none of which is constitutional, the NSA can read whatever emails, listen to whatever phone calls in real time, and capture whatever text messages, monthly bank statements, credit card bills, legal or medical records it wishes merely by telling a secret court in Washington, D.C., that it needs them.

And the government gets this data by area codes or zip codes, or by telecom or computer server customer lists, not by naming a person or place about whom or which it is suspicious.

These federal acts not only violate the Fourth Amendment, they not only bring back a system the Founders and the Framers hated, rejected and fought a war to be rid of, they not only are contrary to the letter and spirit of the Constitution, but they produce information overload by getting all the data they can about everyone. Stated differently, under the present search-them-all regime, the bad guys can get through because the feds have more data than they can analyze, thus diluting their ability to focus on the bad guys.

Among the current presidential candidates, only Paul has expressed an understanding of this and has advocated for fidelity to the Constitution. He wants the government to follow the Fourth Amendment it has sworn to uphold. He is not against all spying, just against spying on all of us. He wants the feds to get a warrant based on probable cause before spying on anyone, because that’s what the Constitution requires. The remaining presidential candidates -- the Republicans and Hillary Clinton -- prefer the unconstitutional governmental need standard, as does President Obama.

But Christie advocated an approach more radical than the president’s when he argued with Paul during the debate last week. He actually said that in order to acquire probable cause, the feds need to listen to everyone’s phone calls and read everyone’s emails first. He effectively argued that the feds need to break into a house first to see what evidence they can find there so as to present that evidence to a judge and get a search warrant to enter the house.

Such a circuitous argument would have made Joe Stalin happy, but it flunks American Criminal Procedure 101. It is the job of law enforcement to acquire probable cause without violating the Fourth Amendment. The whole purpose of the probable cause standard is to force the government to focus on people it suspects of wrongdoing and leave the rest of us alone. Christie wants the feds to use a fish net. Paul argues that the Constitution requires the feds to use a fish hook.

Christie rejects the plain meaning of the Constitution, as well as the arguments of the Framers, and he ignores the lessons of history. The idea that the government must break the law in order to enforce it or violate the Constitution in order to preserve it is the stuff of tyrannies, not free people.

*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.

Lies the Government is Telling You

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Last week, Republicans and Democrats in Congress joined President Barack Obama in congratulating themselves for taming the National Security Agency’s voracious appetite for spying. By permitting one section of the Patriot Act to expire and by replacing it with the USA Freedom Act, the federal government is taking credit for taming beasts of its own creation.

In reality, nothing substantial has changed.

Under the Patriot Act, the NSA had access to and possessed digital versions of the content of all telephone conversations, emails and text messages sent between and among all people in America since 2009. Under the USA Freedom Act, it has the same. The USA Freedom Act changes slightly the mechanisms for acquiring this bulk data, but it does not change the amount or nature of the data the NSA acquires.

Under the Patriot Act, the NSA installed its computers in every main switching station of every telecom carrier and Internet service provider in the U.S. It did this by getting Congress to immunize the carriers and providers from liability for permitting the feds to snoop on their customers and by getting the Department of Justice to prosecute the only CEO of a carrier who had the courage to send the feds packing.

In order to operate its computers at these facilities, the NSA placed its own computer analysts physically at those computers 24/7. It then went to the U.S. Foreign Intelligence Surveillance Court and asked for search warrants directing the telecoms and Internet service providers to make available to it all the identifying metadata -- the times, locations, durations, email addresses used and telephone numbers used -- for all callers and email users in a given ZIP code or area code or on a customer list.

The first document revealed by Edward Snowden two years ago was a FISA court search warrant directed to Verizon ordering it to make available to NSA agents the metadata of all its customers -- more than 113 million at the time. Once the court granted that search warrant and others like it, the NSA computers simply downloaded all that metadata and the digital recordings of content. Because the FISA court renewed every order it issued, this arrangement became permanent.

Under the USA Freedom Act, the NSA computers remain at the carriers’ and service providers’ switching offices, but the NSA computer analysts return to theirs; and from there they operate remotely the same computers they were operating directly in the Patriot Act days. The NSA will continue to ask the FISA court for search warrants permitting the download of metadata, and that court will still grant those search warrants permitting the downloading. And the NSA will continue to take both metadata and content.

The Supreme Court has ruled consistently that the government must obtain a search warrant in order to intercept any nonpublic communication. The Constitution requires probable cause as a precondition for a judge to issue a search warrant for any purpose, and the warrant must “particularly (describe) the place to be searched, and the persons or things to be seized.” Because this is expressly set forth in the Constitution itself, Congress and the president are bound by it. They cannot change it. They cannot avoid or evade it.

Probable cause is evidence about a person or place sufficient to permit a judge to conclude that evidence of a crime will probably be found. Both the Patriot Act and the USA Freedom Act disregard the "probable cause" standard and substitute instead a “government need” standard. This is, of course, no standard at all, as the NSA has claimed under the Patriot Act -- and the FISA court bought the argument -- that it needs all telephone calls, all emails and all text messages of all people in America. Today it may legally obtain them by making the same claim under the USA Freedom Act.

When politicians tell you that the NSA needs a court order in order to listen to your phone calls or read your emails, they are talking about a FISA court order that is based on government need -- not a constitutional court order, which can only be based on probable cause. This is an insidious and unconstitutional bait and switch.

All this may start with the NSA, but it does not end there. Last week, we learned that the FBI is operating low-flying planes over 100 American cities to monitor folks on the streets and intercept their cellphone use -- without any search warrants. Earlier this week, we learned that the Drug Enforcement Administration has intercepted the telephone calls of more than 11,000 people in three years -- without any search warrants. We already know that local police have been using government surplus cell towers to intercept the cellphone signals of innocent automobile drivers for about a year -- without search warrants.

How dangerous this is. The Constitution is the supreme law of the land. It applies in good times and in bad, in war and in peace. It regulates the governed and the governors. Yet if the government that it regulates can change it by ordinary legislation, then it is not a constitution but a charade.

Suppose the Congress wants to redefine the freedom of speech or the free exercise of religion or the right to keep and bear arms, just as it did the standards for issuing search warrants. What is the value of a constitutional guarantee if the people into whose hands we repose the Constitution for safe keeping can change it as they see fit and negate the guarantee?

What do you call a negated constitutional guarantee? Government need.

*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.

Neither Freedom Nor Safety

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

In their continuous efforts to create the impression that the government is doing something to keep Americans safe, politicians in Washington have misled and lied to the public. They have violated their oaths to uphold the Constitution. They have created a false sense of security. And they have dispatched and re-dispatched 60,000 federal agents to intercept the telephone calls, text messages and emails of all Americans all the time.

In the process, while publicly claiming they only acquire identifying metadata -- the time, date, location, duration, telephone numbers and email addresses of communications -- they have in fact surreptitiously gained access to the content of these communications.

On June 1, one of the three claimed legal authorities for all this, Section 215 of the Patriot Act, expired, as Congress was unable to agree on either its reinstitution or the enactment of a substitute. At the time that Section 215 was about to expire, President Obama, Attorney General Lynch and FBI Director Comey warned that the NSA’s computers would go dark and the American public would be at the mercy of our enemies. Their warnings were nonsense.

The NSA is a military entity that utilizes the services of military computer experts and agents, employs civilians, and hires companies that provide thousands of outside contractors. After nearly 14 years of spying on us -- all authorized by a secret court whose judges cannot keep records of what they have ordered or discuss openly what they know -- the NSA now has computers and computer personnel physically located in the main switching offices of all telecom and Internet service providers in the United States. It has 24/7 access to the content of everyone’s telephone calls, emails and text messages.

The data amassed thereby is so vast that the government cannot sift through it quickly or effectively enough to stop such notorious events as the Boston Marathon bombings, the Ft. Hood massacre and the attempted massacre last month outside of Dallas. The Justice Department acknowledged this last month when it revealed that all this spying has not succeeded in stopping any terrorist plots and has not aided any federal prosecutions of terrorism.

Then why do it? Because the feds want to calm American nerves by giving the impression that they are doing something -- even though we know that they know that what they are doing fails to keep us safe. They are giving us a false impression. But they owe us the truth, not falsehoods designed to make themselves look like they are doing what they claim. Their spying has failed to enhance our safety.

It also has failed to protect our freedoms. The Constitution requires probable cause as a precondition for all search warrants. That is a level of evidence about the place to be searched or the person or thing to be seized sufficient to induce a judge to conclude that a crime probably has been committed. Without this probable cause requirement, nothing would stop the government from searching and seizing whatever it wants. Yet that is where we are today. The NSA’s unconstitutional standard of “government need” reinstitutes the general warrants -- search where you wish and seize what you find -- which the Fourth Amendment was written to prohibit.

Both the Patriot Act and the Freedom Act, the substitute law enacted by Congress, do away with the probable cause requirement. Both of those laws permit the FISA court to issue general warrants based on the government’s needs, rather than probable cause. It is the government-need standard, which is no standard at all, that has resulted in spying on all persons all the time.

When Section 215 of the Patriot Act expired, the NSA’s legal (yet unconstitutional) authority to spy did not. The propaganda that its computers were shut down is false. Section 702 of the FISA law and President Bush’s October 2001 executive order were and are still valid, and both have been interpreted to unleash the NSA.

Section 702 permits warrantless surveillance of Americans who speak with foreigners, and the NSA has gotten FISA warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses all persons in the United States. Bush’s executive order was given to all military intelligence agencies -- of which the NSA is but one. It instructed the military to intercept the calls and emails of whatever Americans it needs to listen in upon to enhance safety. That executive order still stands. This is why the hand wringing and false claims that the NSA computers went dark is untruthful. The computers violate our privacy and assault our liberty and fail to enhance our safety, but they are not dark.

Last week, one of the pro-spying politicians was clever, even cute, when he issued the one-liner: “You can’t enjoy civil liberties from a coffin.” His statement was a craven articulation of failure. The government’s job is to keep us free and safe. If it keeps us safe but not free, it has failed to do its job. Today it does neither. I suggest to him Patrick Henry on this: “Give me liberty or give me death.”

Which one-liner better embodies American values, history and traditions?

*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.

Saving the Fourth

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The Patriot Act has a bad pedigree and an evil history. In the fearful days immediately following 9/11, the Department of Justice quickly sent draft legislation to Congress that, if enacted, would have permitted federal agents to violate their oaths to uphold the Constitution by writing their own search warrants. The draft subsequently was revealed to have been written before 9/11, but that’s another story.

The House Judiciary Committee reviewed the legislation and revised it so that it would meet Fourth Amendment norms. The revised version permitted federal agents to write their own search warrants for business records, but the warrants could be challenged by the custodian of the records or by the person whose records were being sought. Because the records were in the hands of a third party, they were in no danger of destruction.

The Fourth Amendment was written largely to assure that the general warrants British soldiers used to search the colonists’ homes would never be lawful in the United States. General warrants were issued by secret courts in London based on the government’s needs, not on evidence of wrongdoing. They authorized the bearer to search wherever he wished and seize whatever he found.

In order to protect the natural right to be left alone -- privacy -- the Framers enacted standards in the Fourth Amendment that required the government to produce evidence about the person whose records it wants -- called probable cause -- and present that evidence to a judge when it wants a search warrant. If granted, the Constitution requires that the warrant particularly describe the place to be searched or the person or thing to be seized.

After the House Judiciary Committee took all this into account in its redrafting of the proposed Patriot Act, the House Republican leadership and the George W. Bush White House pulled a fast one. They switched the painstakingly negotiated version of the Patriot Act for the original version and posted the original version on the House intranet, and leadership scheduled a vote within the hour of posting.

It is safe to say that no member of the House read the Patriot Act in that hour. It takes about 20 hours to read, as it is hundreds of pages in length, and it amends dozens of prior statutes that also must be read. Most House members clearly never knew what they were authorizing. The only negotiated-for provision that survived the switch was the sunset provision of section 215.

Section 215 only authorizes the feds to write their own search warrants for business records and for surveillance of so-called lone-wolf terrorists no matter what telephone they may use. The Bush and Obama administrations secretly persuaded the secret Foreign Intelligence Surveillance Act (FISA) court that somehow section 215 also permitted the NSA to acquire bulk data from telephone and computer use based on the government’s needs, not based on probable cause.

Bulk data is undifferentiated as to persons. Rather, it is collected by zip code or area code or service provider customer base. Section 215 expires at the end of this week.

The U.S. Court of Appeals for the Second Circuit, the second highest court in the land, declared the collection of bulk data under section 215 to be illegal. The court ruled that the language of section 215 does not authorize bulk data collection, and no section of the Patriot Act does. That court gave Congress until June 1 to clarify the language. If Congress fails to do so by June 1, the court will entertain applications to bar the NSA from collecting bulk data, and it indicated it would likely grant those applications.

Last week, the House voted to revise section 215, and the Senate did not. Thus, it is likely to expire on Sunday night.

President Obama, who falsely claims to be opposed to the collection of bulk data, can stop it with his signature, but he has not done so. He claims to favor the House version of surveillance, which has ridiculously been dubbed the Freedom Act.

The Freedom Act would get the NSA’s computer geeks physically out of the facilities of telecoms and computer servers, but would let them back in digitally with the FISA court’s approval, and that approval is not conditioned on probable cause. Rather, it is to be granted whenever the NSA needs the data. In the 14 years of all this spying, the NSA has made more than 34,000 requests of the FISA court; only 12 have been denied.

If section 215 expires next week, the feds will need individualized search warrants in order to listen to phone calls. They already have been getting individualized search warrants for the phone calls and emails of potential lone-wolf terrorists and for the business records of suspected terrorist groups and those whom they have successfully prosecuted for terrorist acts.

If all of the above is not enough to induce anyone in Congress faithful to the Constitution to reject extending section 215, perhaps the findings of the inspector general of the Department of Justice itself will. Late last week, he released a report in which he found that the bulk collection of data has not stopped a single act of terror or aided a single federal terrorism prosecution since the Patriot Act became law on October 26, 2001.

The government's bulk collection of data must go. It assaults freedoms, and it fails to enhance our safety.

*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.

Rand and Ted on the Fourth

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

A decision last week about NSA spying by a panel of judges on the United States Court of Appeals in New York City sent shock waves through the government. The court ruled that a section of the Patriot Act that is due to expire at the end of this month and on which the government has relied as a basis for its bulk acquisition of telephone data in the past 14 years does not authorize that acquisition.

This may sound like legal mumbo jumbo, but it goes to the heart of the relationship between the people and their government in a free society. Here is the backstory and the latest.

The Patriot Act is the centerpiece of the federal government’s false claims that by surrendering our personal liberties to it, it can somehow keep us safe. The liberty-for-safety offer has been around for millennia and was poignant at the time of the founding of the American republic.

The Framers addressed it in the Constitution itself, where they recognized the primacy of the right to privacy and insured against its violation by the government by intentionally forcing it to jump through some difficult hoops before it can capture our thoughts, words or private behavior.

Those hoops are the requirement of a search warrant issued by a judge and based on evidence -- called probable cause -- demonstrating that it is more likely than not that the government will find what it is looking for from the person or place it is targeting. Only then may a judge issue a warrant, which must specifically describe the place to be searched or specifically identify the person or thing to be seized.

None of this is new. It has been at the core of our system of government since the 1790s. It is embodied in the Fourth Amendment, which is at the heart of the Bill of Rights. It is quintessentially American.

The Patriot Act has purported to do away with the search warrant requirement by employing language so intentionally vague that the government can interpret it as it wishes. Add to this the secret venue for this interpretation -- the FISA court to which the Patriot Act directs that NSA applications for authority to spy on Americans are to be made -- and you have the totalitarian stew we have been force-fed since October 2001.

Because the FISA court meets in secret, Americans did not know that the feds were spying on all of us all the time and relying on their own unnatural reading of words in the Patriot Act to justify it until Edward Snowden spilled the beans on his former employer nearly two years ago.

The feds argued to the secret court that they were entitled to any phone call data they wanted -- usually sought by area code or zip code or the customer base of telecom service providers -- so long as they claimed to need it to search for communications about terror-related activities, and they claimed they needed EVERYONE’S records, and they claimed the Patriot Act authorized this.

The secret court bought those claims, and -- fast-forward to today -- the feds now have immediate access to our phone calls in real time. They can turn on our cellphones in our pockets and purses and use them as listening devices without us knowing it, and they have physical access to all telephone carriers’ equipment whenever they wish, which today is 24/7.

Some members of Congress reject this. Foremost among the outraged in the Senate is Kentucky Sen. Rand Paul. It is none of the government’s business, he argues, what we say on our phone calls. If the NSA wants to hear us, let them present probable cause to a judge identifying the person they want to hear and seek a search warrant. Paul’s is a genuine outrage from the only voice among those running for president who is faithful to the Constitution.

Other senators, foremost among them Texas Sen. Ted Cruz, also running for president, are pretending outrage by offering a Band-Aid to replace the Patriot Act called the Freedom Act. The Freedom Act gets the NSA physically out of the telecoms’ offices, but lets them come back in digitally whenever one of these secret FISA courts says so, and the standard for saying so is not probable cause as the Constitution requires. It is whatever the government wants and whenever it wants it.

The so-called Freedom Act would actually legitimize all spying all the time on all of us in ways that the Patriot Act fails to do. It is no protection of privacy; it is no protection of constitutional liberty. It unleashes American spies on innocent Americans in utter disregard of the Fourth Amendment.

Earlier this week, Paul announced that he feels so strongly about the right to be left alone, and takes so seriously his oath to uphold the Constitution, and believes so certainly that our phone calls are none of the government’s business that he plans to filibuster all attempts to permit this to continue. For that alone, he is a hero to the Constitution. Perhaps his friend Cruz will return to his constitutional roots and join him.

How do we know that the Freedom Act is a Band-Aid only? Because the NSA supports 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.

Restore the Fourth

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

If you plan to visit a college campus this month, don’t be surprised if you see signs and placards encouraging you to “Restore the Fourth.” Restore the Fourth is not about an athletic event or a holiday; it is about human freedom. The reference to “the Fourth” is to the Fourth Amendment, and it is badly in need of restoration.

In the dark days following 9/11, Congress enacted the Patriot Act. The Patriot Act has many flaws, including its prohibition of certain truthful public speech, but its most pernicious assault is on the constitutional right to privacy.

One of its sections permits federal agents to write their own search warrants and serve them on persons and entities who by law are the custodians of records about others, such as physicians, lawyers, bankers, telecoms, public utilities and computers servers. The same section of the act has been used perversely by the NSA and the secret FISA court to authorize the bulk collection of data.

Bulk collection of data -- the indiscriminate governmental acquisition of the contents of emails, text messages, telephone calls, bank statements and credit card bills -- is what the NSA seeks when it acquires all data in a specific area code or zip code or from a named provider, like Verizon, AT&T and Google.

What’s wrong with bulk collection? The warrant issued by the FISA court that authorizes bulk collection is known as a general warrant. A general warrant does not name a person or place, but authorizes the bearer to search wherever he wishes and seize whatever he finds. General warrants were a tool of colonial repression used by the king prior to the American Revolution. They were issued by secret courts in London. They were so loathed by the Framers that they are expressly forbidden by the Fourth Amendment.

The Fourth Amendment requires evidence -- called probable cause -- about a particular person, place or event to be presented to a judge and requires the judge to decide whether it is more likely than not that the government will find what it is looking for. The wording of the amendment could not be more precise, and in a Constitution known for vague language, this precision is instructive: All warrants must “particularly descr(ibe) the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects all persons’ bodies, houses, papers and effects.

Yet the Patriot Act purports to avoid these requirements by permitting secret FISA court judges to authorize NSA agents to execute general warrants; thus, without probable cause and without describing the place to be searched or the person or thing to be seized.

The purpose of the Fourth Amendment is to prohibit government fishing expeditions, common to totalitarian countries. The theory of the Fourth Amendment is that a restrained government -- restrained by an instrument the government cannot change, like the Constitution -- is essential if people are to be free. The natural right protected by the Fourth Amendment is the right to be left alone.

Enter Restore the Fourth.

Restore the Fourth is a movement gaining steam now because the section of the Patriot Act that is so constitutionally offensive expires on May 31. President Obama wants it extended so his spies can continue their bulk collection of data. The Republican leadership in the Senate agrees with the president and accepts the myth that less freedom equals more security. The Republican leadership in the House has proposed a Band-Aid that would require the telecoms and computer service providers to sit on bulk data until the feds come calling, but to surrender it without the judicial finding of probable cause or specificity.

The Patriot Act should be repealed because it violates the Constitution and it doesn’t keep us safe. It renders us less safe and less free. The indiscriminate unconstitutional bulk collection of data is far too much raw material even for the 60,000 NSA agents and contractors to navigate. We saw that as recently as last weekend, when two jihadists known to the FBI and who had used email and cellphones attacked a free speech symposium outside of Dallas and were stopped at the last minute by courageous local police who saw their guns -- not by federal spies’ warnings.

When longtime NSA Director Gen. Keith Alexander was asked under oath how many plots the NSA has stopped in 10 years, he stated 53. The next day, he modified his testimony to three, but declined to elaborate. Edward Snowden, whose revelations about NSA spying have never been refuted, says that no plots have been stopped because the NSA looks at everyone, rather than targeting the bad guys, as the probable cause requirement -- if complied with -- would induce it to do.

Americans are largely free because of the rule of law. The rule of law means a supreme law of the land to which even the government is subject, just as are all persons. Without the rule of law, we are subject to the rule of whoever runs the government, and our rights become licenses to be granted or denied by whoever runs the government. In that world, who or what would restrain the government? An unrestrained government is what we fought the American Revolution against.

That’s why we must Restore the Fourth.

*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.

What if Secrecy Trumps the Constitution?

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.

Freedom for Me, but Not for Thee

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.” 

A Rivalry of Government Hackers

Judge Andrew P. Napolitano*

The government is caught up in another scandal in which federal agents have been accused of hacking into one another's computers.

When the CIA was established in 1947, Congress and President Truman were concerned that it might not confine itself to spying. Its sole statutory purpose was to steal secrets from foreign governments so that the U.S. would know what they were planning and could prepare for any behavior adverse to American government interests. By its nature, it was operating in secret, and because it lacked transparency, it lacked accountability. One of the statutory mechanisms to achieve accountability was to require the CIA to report to two committees of Congress, but in secret.

Over the years, as sometimes happens between regulators (the congressional committees) and the entity to be regulated (the CIA), they developed a chummy relationship. In this case, the relationship has been so chummy that at the behest of Presidents Bush and Obama the CIA has gone to the Senate and House Intelligence committees, instead of going to the full Congress, for permission to torture prisoners, kill Americans with drones and fight small-scale wars -- all well beyond the statutory mission of stealing secrets.

The members of these committees are senators and representatives who apparently approve of the CIA’s expanded role. Because the committees meet in secret, we don’t know what the CIA requested, whether any members objected to any requests, whether the committees denied any requests or even precisely what was approved. The members of Congress who are on these committees have sworn oaths of secrecy.

These are the same committees that have given permission to the National Security Agency (NSA) to spy on all Americans all the time, so we are probably justified in concluding that the committees and the intelligence agencies they supposedly regulate are more attuned to governmental power than to personal liberty.

The power of these committees effectively has established them as mini-Congresses that are unrecognized by the Constitution and are well outside its confines. The Constitution provides that “all legislative powers” are granted to Congress, not to a select few in Congress, but to Congress as a whole. This is a serious constitutional issue because Congress is mostly transparent and its members are directly answerable to the voters, yet the secrecy of these committees prevents their members from discussing what they know with other members of Congress, unless done openly on the floor of the House or Senate, which they rarely do. The mania for secrecy and the natural inclination of unaccountable governmental entities to grow rather than stabilize or shrink have resulted in the present state of affairs.

The present state of affairs has 95 percent of Congress in the dark about what the CIA is doing and the CIA getting its authority to exceed its statutory limitations from the other 5 percent. But a dispute has arisen between the CIA and the Senate Intelligence Committee over the nature and extent of the CIA detentions and use of torture during the Bush years. In February 2009, the Senate Intelligence Committee decided to investigate the CIA.

After CIA stonewalling and after learning that a senior CIA official destroyed much evidence of torture, the Senate Intelligence Committee insisted on examining the CIA’s secret files to learn what it did to those prisoners in its custody and what evidence was destroyed. Torturing prisoners and destroying government records are federal crimes. In order to facilitate the Senate investigation, the CIA was instructed to make its records digitally available to investigators, which it did at an unmarked subterranean facility in Virginia.

There, investigators have spent many months looking at CIA computer records of its Bush-era interrogation procedures. In the course of doing so, they learned that their computers in the CIA’s secure facility -- the ones they were using to examine CIA files in the subterranean room -- were hacked. It appears to the Senate investigators that the hackers were CIA agents wanting to learn what the investigators found out about them. The CIA counters that the investigators actually hacked into CIA computers when they examined far more materials than the CIA had agreed to make available.

This is more than a schoolyard brawl. This is the unbridled and likely unlawful use of government computers and classified materials by CIA employees trying to dampen the enthusiasm of their regulators, or by Senate investigators accessing classified materials to which they may not be entitled. Either way, this is a violation of the Fourth Amendment’s prohibition of warrantless searches and seizures. Any other persons who did this would be indicted for hacking. Because all of this is so secret, we don’t know whether the Department of Justice is looking into who broke what laws.

But we do know that like its cousin the NSA, the CIA often acts above the law. It does so knowing that indictments for torturing, destroying evidence or computer hacking are unlikely, as any trial would expose the depths of this skullduggery, the unconstitutional system of mini-Congresses and the secrets these employees are trying to keep from their employers -- the American people.

In a democracy, the government must be accountable to the people it serves. Secrecy and accountability are enemies. The natural right to know what the government is doing means that secrecy must be severely and aggressively minimized. A Congress that rubber-stamps what secret agents want it to do by a secret procedure is a dangerous mix that will impair personal liberty in a free society.

In our post 9/11 world, the government has gotten away with hiding its worst behavior behind a veil of secrecy, publicly justified by the fears of a loss of safety that it has instilled in the public. That is not condoned by the Constitution. Under the Constitution, a free people are always entitled to know what the government is doing, and we are entitled to a government that obeys the laws it enforces against the rest of us so we can replace the government when it fails to protect our freedoms.

*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.”

A New Assault on Freedom of the Press

Judge Andrew P. Napolitano*

Judge Nap.png

Last week, a little noticed clash took place on Capitol Hill involving the fundamental values underlying the First Amendment. The issue was the lawfulness of publishing the secrets that were given to reporters by former National Security Agency (NSA) contractor Edward Snowden. The disputants were Cong. Mike Rogers, R-Mich., and FBI Director James Comey.

Rogers is the chief congressional apologist for the massive NSA spying apparatus. He is the current chair of the House Permanent Select Committee on Intelligence, and in that capacity, he is one of the dozen members of Congress from both houses who were privy to much of the NSA spying before the Snowden revelations. In our perverse post-9/11 world, federal law actually permits this Gang of 12 to substitute for all 535 members of Congress with respect to knowledge of intelligence secrets.

Since 9/11, the Bush and Obama administrations have succeeded in claiming they have congressional consent for the massive NSA spying by merely getting a consensus from the Gang of 12. There is, of course, no provision in the Constitution for the substitution of all 535 members of Congress with a select group of 12 of them, but Congress and Presidents Bush and Obama have gone along with this. The kicker is that all members of the Gang of 12 have been sworn to secrecy and threatened with prosecution if they reveal to anyone, including other members of Congress, what the NSA and other intelligence agencies reveal to them. What kind of representative democracy is that?

Rogers is one of the chief architects and cheerleaders of this post-9/11 unconstitutional version of representative democracy. This is the same system that sends the NSA to judges of the Foreign Intelligence Surveillance Court for search warrants that purport to authorize the NSA to capture the content of every text message, email, telephone call, bank statement, credit card bill and utility bill of everyone in America. This apparatus, too, involves another Gang of 12: the 12 federal judges on the FISA court. They suffer from the same secrecy kicker as Rogers’ gang does: They, too, are sworn to secrecy and have been implicitly threatened with prosecution if they violate their oaths.

These judges issue search warrants based on the NSA’s unchallenged wishes, not based on the constitutional requirement of particularly identifying for the court the target of the search and then presenting evidence to the court that constitutes probable cause of criminal behavior on the part of the target. This, too, is unconstitutional, as it is the product of a congressional alteration of the Constitution. As most schoolchildren know, Congress cannot alter or amend the Constitution; only the states can. Yet, by instructing FISA judges to issue search warrants that do not meet the constitutional identity of target and probable cause standards, Congress has substantially altered the Constitution, and the judicial Gang of 12 has gone along with this.

As one of the architects of all this domestic spying, and as one of the believers that the public should be kept in the dark about it, Rogers has not been happy with the Snowden revelations. Snowden subscribed to the same oath of secrecy as the two Gangs of 12, but he also swore -- as have both Gangs of 12 -- to uphold the Constitution.

To Snowden, the people have a fundamental right to know that their government has cooked up the most massive secret violation of civil liberties in the nation’s history, and his oath to uphold the Constitution compelled his revelations. To Rogers, Snowden must be a traitor or a spy.

Even the Obama administration has not bought that argument, as it only charged Snowden with the delivery of classified materials to unauthorized persons. It did not charge him with treason (waging war on the United States or giving aid and comfort to enemies of the United States) or spying (giving classified secrets to enemies of the United States).

Frustrated that Snowden is apparently living freely in Moscow, Rogers summoned the FBI director before his House committee to float a truly novel and pernicious theory of First Amendment law. At that hearing last week, he attempted to persuade Comey to accept his idea that publishing classified secrets is a crime if the publisher was paid for his work. So, if the owners of and reporters at The Guardian of London or The New York Times or The Washington Post, who publicly revealed the secrets Snowden gave them, were paid for their work, the Rogers argument goes, they, too, could be prosecuted for espionage.

Rogers is not a lawyer, but he is an ex-FBI agent. He should know the law, but it was necessary for Comey to tutor him. The law is clear and was stated by the Supreme Court in the Pentagon Papers case, and Comey publicly reminded Rogers of this: If classified materials are of interest to the public, their publication is protected.

Stated differently, it matters not how the journalist acquires the classified materials or whether the journalist and his bosses are paid for his work. If the classified materials are newsworthy, they can be published, and no one can be sued or prosecuted for doing so.

In the clash between government secrecy and public transparency, the Framers placed a value judgment in the First Amendment. Since the press is the eyes and ears of the public, and since the public needs to know what the government is doing so it can make informed decisions when electing people to the government, publishers and reporters are immune from criminal prosecution and civil liability for lifting the veil on the governments’ secrets. An informed public is more likely to make better decisions than an ignorant one.

I am happy that Comey did not fall for Rogers’ ignorant argument, and I am happy, too, that the argument will fall on deaf ears. In a free society, knowledge is superior to ignorance. Politicians who would criminalize publishing the truth should be voted out of office.

*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."