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Judge Napolitano
Judge Andrew P. Napolitano
4 Feb 2016
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Government Spying Out of Control


After President Richard Nixon was forced from office in 1974, congressional investigators discovered what they believed was the full extent of his use of the FBI and the CIA to engage in domestic spying. In that pre-digital era, the spying consisted of listening to telephone calls, opening mail, and using undercover agents to infiltrate political organizations and, as we know, break into their offices. Nixon claimed he did this for the protection of national security. He also claimed he was entitled to break the law and violate the Constitution. "If the president does it, that means that it's not illegal," he once famously said.

Since no one was prosecuted on the basis of data stolen or retrieved by his spies, the courts rarely encountered this behavior and never had to rule on it, and thus it went largely unchecked. A few victims challenged the spying, but the Supreme Court ruled that without palpable harm, the challengers lacked the legal ability to complain in court — what judges call "standing."

But many Americans did complain to Congress, which in 1978 enacted the Foreign Intelligence Surveillance Act, commonly called FISA. FISA provided that all domestic surveillance be subject to the search warrant requirement of the Fourth Amendment, except for spying on foreign agents operating in the U.S. For those cases, FISA established a secret federal court that has been authorized to issue search warrants to spy on foreign agents.

The constitutional standard for all search warrants is probable cause of crime . FISA, however, established a new, different and lesser standard — thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution — of probable cause of status . The status was that of an agent of a foreign power. So, under FISA, the feds needed to demonstrate to a secret court only that a non-American physically present in the U.S., perhaps under the guise of a student, diplomat or embassy janitor, was really an agent of a foreign power, and the demonstration of that agency alone was sufficient to authorize a search warrant to listen to the agent's telephone calls or read his mail.

Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court. In fact, that court has rarely rejected anything, having granted search warrants in well over 97 percent of applications. This is hardly harmless, as foreign persons in the U.S.

are frequently talking to Americans in the U.S. Thus, not only did FISA violate the privacy rights of foreigners (the Fourth Amendment protects "people," not just Americans); it violated the rights of those with whom they were communicating, American or non-American.

It gets worse. The Patriot Act, which was enacted in 2001 and permits federal agents to write their own search warrants in violation of the Fourth Amendment, actually amended FISA so as to do away with the FISA-issued search warrant requirement when the foreign person is outside the U.S. This means that if you email or call your cousin in Europe or a business colleague in Asia, the feds are reading or listening, without a warrant, without suspicion, without records and without evidence of anything unlawful.

The Patriot Act amendments to FISA also permit the feds to use anything they see or hear while spying in a federal court. The amended FISA statute permitting these warrantless searches of emails, telephone calls and postal mail expires at the end of this month. Last month, the House quietly voted to extend this dreadful authority for another five years, and in the next week, the Senate will consider doing the same.

What's wrong with Congress?

FISA gives the government unchecked authority to snoop on all Americans who communicate with any foreign person, in direct contravention of the Fourth Amendment. The right to privacy is a natural human right. Its enshrinement in the Constitution has largely kept America from becoming East Germany. Moreover, everyone in Congress has taken an oath to uphold the Constitution, which could not be more clear: "The right of the people to be secure in their persons, houses, papers, and effects..." shall not be violated, except via a warrant issued by a neutral judge upon the judge finding probable cause of crime. If we let Congress, which is a creature of the Constitution, change the Constitution, then no one's liberty or property is safe, and freedom is dependent upon the political needs of those in power.

The president and the leadership of both political parties in both houses of Congress have abandoned their oaths to uphold the Constitution. They have claimed that foreigners and their American communicants are committed to destroying the country and only the invasion of everyone's right to privacy will keep us safe. They are violating the privacy of us all to find the communications of a few. Who will keep us safe from them? Their behavior is committed to destroying the Constitution.

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." To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit








1 Comments | Post Comment
Sir;... The spectacle of the government running scared from the people is not a strange one, but it would be in a democracy..When you have too few representing too many it is inevitable that conflicts of interest and conflicts of every sort should arise faster than government could quell them...
It makes no difference how many people swear to uphold the constitution... The Constitution itself was always a contradiction, and considered as a performance of music that a vast audience listens to, then each in his own way hears his own music, as each person sees something of value in the constitution, and to that they swear... I find value in the constitution, in parts of the constitution; but also danger... I like some of the bill of rights, but it is moot, and does not protect people as individuals..The changes made outside of the constitution without the check of the amendment process has been devestating to our society... For one, the parties which are no specific part of the constitution, are a hold over from England, and act as another department of government, supplying inertia and intransigence, and nothing of value... Another extraconstitutional change that was the child of parties was the limiting of representatives in the house to a fixed number... We see how this has allowed the parties to gerrymand districts and deliberately divide and frustrate the population...Today the house claims a mandate based upon the results of gerrymandered districts, and they should be laughed out of town...
If there were parties, but not such large congressional districts, then there would certainly be a party majority of some sort, but it would be much harder to contrive a safe district with a small population of voters, and it would be more likely that some would be elected by a ninety percent majority, and not so fear as representatives fear today the radicals they have helped to create out of the failure of government to serve every purpose...
The constitution has been a great failure judging by its preamble... Given that moral, and transendent forms that we think of as good that are the cause behind all of government are difficult to define, the cause of achieving those goals was always bound to be impossible... Still, if people today recognize the evil eminating from government surrounds them and threatens them on all sides, it is not because the cause behind government was bad, or wrong...The constitution tied the hands of government in regard to churches and business, and they should have known better, because between these two, alone and together you have the greatest tyrannies that have ever faced human kind... What is business without want, and what is want without poverty, and yet business is free to create both want and poverty... What is religion without ignorance and what is ignorance without pain, and religion promotes both ignorance and pain... Where is government to act against business and religion though they threaten our very survival as a nation and as individuals??? It was created powerless, and powerless it remains...What exactly is the task of government that will not govern that which governs all???
All that government can do is act the cop on every individual freedom so that for free religion and free enterprise the whole of the people are made slaves...The people should certainly be free in their homes and persons and effects... The people should be free everywhere... But no group of people seeking to profit on the people of this nation, to make their gain by a loss to this people should ever expect to be free from search, and in fact, should keep open books... The immortality of corporation should have to be renewed, or they will as Lord Coke said, have no souls...
Every group, setting itself apart from the people and their government should be considered suspect, and rather than having more rights and better enforced rights than people should have less rights with only social enforcement... Think of it: You want some gain by some new process or invention... Enjoy your advantage for a time; but that does not mean the wealth you acquire should be free of taxes, or should be yours into perpetuity...Take some wealth, and take some honor, and a -what have you done for me lately... When corporations exist only because they exist, because no one can stand against them, even the combined weight of the people through their government, then no one can say they exist for the value they create...
There is nothing outside the range of government interest, but there should be the presumption that anyone living off the commonwealth is doing so against the will of the people as an affront and an injury to those people... If you take oil out of our ground, then oil in our food, our air, and our water is your responsibility... Paying essential taxes on that oil, if fair, might be prohibitive cost; but to make it too cheap for the profit of a few cheapens the sacrifice of all who have died and lived for this country and for its resources... If you cannot tax to limit distructive or dangerous behavior, then your government is powerless because it will never be able to police where it cannot tax simply due to the costs... That is the great aim of smaller government, and lower taxes... It is the object of the rich to have the government work for them, to keep the people in line and make their tyranny complete...
The rich do not want to pay taxes to see themselves governed, or their businesses regulated in any sense of the word... So; who is it that should honor the constitution, and swear to uphold it???... I will not swear to it...
If you burned every part after the preamble there would be no loss to humanity, but good aims never considered do not make a crappy antique constitution fit for a modern age... You see it does not offer us protection... What good is it then???
Comment: #1
Posted by: James A, Sweeney
Thu Dec 13, 2012 4:59 AM
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