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A Parting Shot
at Personal Freedom
By Judge Andrew P.
Napolitano
January 19,
2017 "Information
Clearing House"
- On Jan. 3, outgoing Attorney General Loretta Lynch
secretly signed an order directing the National Security
Agency – America’s 60,000-person-strong domestic spying
apparatus – to make available raw spying data to all
other federal intelligence agencies, which then can pass
it on to their counterparts in foreign countries and in
the 50 states upon request. She did so, she claimed, for
administrative convenience. Yet in doing this, she
violated basic constitutional principles that were
erected centuries ago to prevent just what she did.
Here is the
back story.
In the
aftermath of former President Richard Nixon’s abusive
utilization of the FBI and CIA to spy on his domestic
political opponents in the 1960s and ’70s – and after
Nixon had resigned from office in the wake of all that –
Congress passed the Foreign Intelligence Surveillance
Act, which created a secret court that was charged with
being the sole authority in America that can authorize
domestic spying for non-law enforcement purposes.
The standard
for a FISA court authorization was that the subject of
the spying needed to be a foreign person in the United
States who was an agent of a foreign power. It could be
a foreign janitor in a foreign embassy, a foreign spy
masquerading as a diplomat, even a foreign journalist
working for a media outlet owned by a foreign
government.
The American
spies needed a search warrant from the FISA court.
Contrary to the Constitution, the search warrant was
given based not on probable cause of crime but rather on
probable cause of the status of the person as an agent
of a foreign power. This slight change from "probable
cause of crime" to "probable cause of foreign agency"
began the slippery slope that brought us to Lynch’s
terrible order of Jan. 3.
After the
Foreign Intelligence Surveillance Act, numerous other
statutes were enacted that made spying easier and that
continued to erode the right to be left alone guaranteed
by the Fourth Amendment. The Patriot Act permitted FBI
agents to write their own search warrants for business
records (including medical, legal, postal and banking
records), and amendments to FISA itself changed the
wording from probable cause "of foreign agency" to
probable cause of being "a foreign person" to all
Americans who may "communicate with a foreign person."
As if Americans
were children, Congress made those sleight-of-hand
changes with no hoopla and little serious debate. Our
very elected representatives – who took an oath to
preserve, protect and defend the Constitution – instead
perverted it.
It gets worse.
The recent USA
Freedom Act permits the NSA to ask the FISA court for a
search warrant for any person – named or unnamed – based
on the standard of "governmental need." One FISA
court-issued warrant I saw authorized the surveillance
of all 115 million domestic customers of Verizon. The
governmental need standard is no standard at all, as the
government will always claim that what it wants, it
needs.
All these
statutes and unauthorized spying practices have brought
us to where we were on Jan. 2 – namely, with the NSA
having a standard operating procedure of capturing every
keystroke on every computer and mobile device, every
telephone conversation on every landline and cellphone,
and all domestic electronic traffic – including medical,
legal and banking records – of every person in America
24/7, without knowing of or showing any wrongdoing on
the part of those spied upon.
The NSA can use
data from your cellphone to learn where you are, and it
can utilize your cellphone as a listening device to hear
your in-person conversations, even if you have turned it
off – that is, if you still have one of the older phones
that can be turned off.
Notwithstanding
all of the above gross violations of personal liberty
and constitutional norms, the NSA traditionally kept its
data – if printed, enough to fill the Library of
Congress every year – to itself. So if an agency such as
the FBI or the DEA or the New Jersey State Police, for
example, wanted any of the data acquired by the NSA for
law enforcement purposes, it needed to get a search
warrant from a federal judge based on the constitutional
standard of "probable cause of crime."
Until now.
Now, because of
the Lynch secret order, revealed by The New York Times
late last week, the NSA may share any of its data with
any other intelligence agency or law enforcement agency
that has an intelligence arm based on – you guessed it –
the non-standard of governmental need.
So President
Barack Obama, in the death throes of his time in the
White House, has delivered perhaps his harshest blow to
constitutional freedom by permitting his attorney
general to circumvent the Fourth Amendment, thereby
enabling people in law enforcement to get whatever they
want about whomever they wish without a showing of
probable cause of crime as the Fourth Amendment
requires. That amendment expressly forbids the use of
general warrants – search where you wish and seize what
you find – and they had never been a lawful tool of law
enforcement until Lynch’s order.
Down the slope
we have come, with the destruction of liberty in the
name of safety by elected and appointed government
officials. At a time when the constitutionally
recognized right to privacy was in its infancy, Justice
Louis Brandeis warned all who love freedom about its
slow demise. He wrote: "Experience should teach us to be
most on our guard to protect liberty when the
Government’s purposes are beneficent. Men born to
freedom are naturally alert to repel invasion of their
liberty by evil-minded rulers. The greatest dangers to
liberty lurk in insidious encroachment by men of zeal,
well meaning but without understanding."
Someday we will
learn why Obama did this. I hope that when we do, it is
at a time when we still have personal liberty in a free
society.
Andrew Peter
Napolitano is the Senior Judicial Analyst for Fox News
Channel, commenting on legal news and trials, and is a
syndicated columnist whose work appears in numerous
publications, such as Fox News, The Washington Times,
and Reason.https://www.creators.com/read/judge-napolitano
Creators Syndicate, Inc. © 2017 |
