What if some spies are bad guys?

The Con­sti­tu­tion re­quires that all war­rants par­tic­u­larly de­scribe the per­son or thing to be seized

The Washington Times Daily - - OPINION - By An­thony P. Napoli­tano Andrew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Washington Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

What if the fed­eral gov­ern­ment cap­tures in real time the con­tents of every tele­phone call, email and text mes­sage and all the fiber-op­tic data gen­er­ated by every per­son and en­tity in the United States 24/7/365? What if this mass sur­veil­lance was never au­tho­rized by any fed­eral law? What if this mass sur­veil­lance has come about by the se­cret col­lu­sion of pres­i­dents and their spies in the Na­tional Se­cu­rity Agency and by the fed­eral gov­ern­ment’s forc­ing the ma­jor tele­phone and com­puter ser­vice providers to co­op­er­ate with it? What if the ser­vice providers were co­erced into giv­ing the feds con­tin­u­ous phys­i­cal ac­cess to their com­put­ers and thus to all the data con­tained in and pass­ing through those com­put­ers?

What if Pres­i­dent Ge­orge W. Bush told the NSA that since it is part of the De­fense De­part­ment and he was the com­man­der in chief of the mil­i­tary, NSA agents could spy on any­one, not­with­stand­ing any court or­ders or statutes that pro­hib­ited it? What if Mr. Bush be­lieved that his or­ders to the mil­i­tary were not con­strained by the laws Congress had writ­ten or the in­ter­pre­ta­tions of those laws by fed­eral courts or even by the Con­sti­tu­tion?

What if Congress has writ­ten laws that all pres­i­dents have sworn to up­hold and that re­quire a war­rant is­sued by a judge be­fore the NSA can spy on any­one but Mr. Bush ef­fec­tively told the NSA to go through the mo­tions of get­ting a war­rant while spy­ing with­out war­rants on ev­ery­one in the U.S. all the time? What if Pres­i­dents Barack Obama and Don­ald Trump have taken the same po­si­tion to­ward the NSA and or­dered or per­mit­ted the same war­rant­less and law­less spy­ing?

What if the Con­sti­tu­tion re­quires war­rants based on prob­a­ble cause of crim­i­nal be­hav­ior be­fore sur­veil­lance can be con­ducted but Congress has writ­ten laws re­duc­ing that stan­dard to prob­a­ble cause of com­mu­ni­cat­ing with some­one who has com­mu­ni­cated with a for­eign na­tional? What if a ba­sic prin­ci­ple of con­sti­tu­tional law is that Congress is sub­ject to the Con­sti­tu­tion and there­fore can­not change its terms or their mean­ings?

What if the Con­sti­tu­tion re­quires that all war­rants par­tic­u­larly de­scribe the place to be searched or the per­son or thing to be seized? What if the war­rants Congress per­mits the NSA to use vi­o­late that re­quire­ment by per­mit­ting a fed­eral court to is­sue gen­eral war­rants? What if gen­eral war­rants do not par­tic­u­larly de­scribe the place to be searched or the per­son or thing to be seized but rather au­tho­rize the bearer to search in­dis­crim­i­nately through ser­vice providers’ cus­tomer data?

What if most Amer­i­cans have of­fered the view that they have noth­ing to hide from the gov­ern­ment? What if the gov­ern­ment has no moral, con­sti­tu­tional or le­gal right to per­sonal in­for­ma­tion about and from all of us with­out a valid search war­rant con­sis­tent with con­sti­tu­tional re­quire­ments?

What if raw in­tel­li­gence data comes to the gov­ern­ment with­out any proper names on it? What if in or­der to find those proper names, the gov­ern­ment goes through a pro­ce­dure called un­mask­ing? What if law­ful un­mask­ing can only oc­cur when the gov­ern­ment knows that a na­tional se­cu­rity prob­lem is afoot and it needs to know the iden­tity of the per­son whose com­mu­ni­ca­tions it has in hand?

What if the Obama ad­min­is­tra­tion made it eas­ier for po­lit­i­cal ap­pointees to un­mask mem­bers of Congress and other gov­ern­ment of­fi­cials with­out demon­strat­ing a na­tional se­cu­rity need as a rea­son for do­ing so? What if un­mask­ing for po­lit­i­cal pur­poses is a felony?

What if there are 17 fed­eral in­tel­li­gence agen­cies that col­lect raw in­tel­li­gence data from Amer­i­cans? What if for gen­er­a­tions these agen­cies needed to keep the se­crets they ac­quired to them­selves, un­less the dis­sem­i­na­tion of the se­crets or the un­mask­ing of the com­mu­ni­cants was nec­es­sary for na­tional se­cu­rity pur­poses?

What if af­ter Mr. Trump was elected pres­i­dent, the Obama ad­min­is­tra­tion is­sued reg­u­la­tions that per­mit­ted the in­dis­crim­i­nate shar­ing of raw in­tel­li­gence data among agents from any of the 17 fed­eral in­tel­li­gence agen­cies? What if, af­ter this raw in­tel­li­gence data shar­ing was per­mit­ted, some of it ended up in The New York Times and The Washington Post? What if Pres­i­dent Trump him­self was a vic­tim of in­dis­crim­i­nate shar­ing and crim­i­nal un­mask­ing? What if no one has been pros­e­cuted for this?

What if the use of raw in­tel­li­gence data for po­lit­i­cal pur­poses is a se­ri­ous threat to per­sonal lib­erty? What if we in Amer­ica are the most watched, pho­tographed and copied so­ci­ety in his­tory? What if we never agreed to this? What if in­stead we have a Con­sti­tu­tion that was writ­ten in large mea­sure to pre­vent this? What if the pur­pose of the prob­a­ble cause re­quire­ment and the speci­ficity of war­rants re­quire­ment was to pro­tect the in­di­vid­ual right to be left alone?

What if our per­sonal rights are in­alien­able as the Dec­la­ra­tion of In­de­pen­dence states? What if the gov­ern­ment can­not morally, con­sti­tu­tion­ally or legally in­ter­fere with in­alien­able rights with­out a jury trial? What if the whole pur­pose of the pri­macy of the Con­sti­tu­tion was to es­tab­lish the fed­eral gov­ern­ment and at the same time pre­vent its in­ter­fer­ence with in­alien­able per­sonal rights with­out prob­a­ble cause or a jury trial?

What if we fought a rev­o­lu­tion against a Bri­tish king be­cause his agents were in­ter­fer­ing with in­alien­able rights with­out first prov­ing to a court any wrong­do­ing on the part of those whose rights were tram­pled? What if be­cause of weak­ness or fear or se­crecy or lethargy or slick ar­gu­ments, we have a new nor­mal in the U.S. in which every per­son’s in­alien­able right to be left alone is vi­o­lated by the fed­eral gov­ern­ment so thor­oughly, qui­etly and con­tin­u­ously that we don’t even no­tice it un­til it is too late?

What if when the feds know enough about us to harm us, it will be too late? What if it is al­ready too late? What do we do about it?

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