Find­ing a crime for ev­ery man

The Washington Times Weekly - - Commentary - By An­drew P. Napoli­tano

While the na­tion’s po­lit­i­cal class has been fix­ated on the gov­ern­ment shut­down in Wash­ing­ton this week, the Na­tional Se­cu­rity Agency (NSA) has con­tin­ued to spy on all Amer­i­cans and, by its am­bi­gu­ity and shrewd si­lence, seems to be ac­knowl­edg­ing slowly that the scope of its spy­ing is truly breath­tak­ing.

The Obama ad­min­is­tra­tion is of the view that the NSA can spy on any­one, any­where. The pres­i­dent thinks that fed­eral statutes en­able the se­cret For­eign In­tel­li­gence Sur­veil­lance Act (FISA) court to au­tho­rize the NSA to cap­ture any in­for­ma­tion it de­sires about any per­sons with­out iden­ti­fy­ing the per­sons and with­out a show­ing of prob­a­ble cause of crim­i­nal be­hav­ior on the part of the per­sons to be spied upon. This is the same mind­set that the Bri­tish gov­ern­ment had with re­spect to the colonists. It, too, thought that Bri­tish law per­mit­ted a judge in se­cret in Bri­tain to is­sue gen­eral war­rants to be ex­e­cuted in the Colonies at the whim of Bri­tish agents.

Gen­eral war­rants do not state the name of the place to be searched or the per­son or thing to be seized, and they do not have the ne­ces­sity of in­di­vid­u­al­ized prob­a­ble cause as their linch­pin. They sim­ply au­tho­rize the bearer to search wher­ever he wishes for what­ever he wants. Gen­eral war­rants were uni­ver­sally con­demned by colo­nial lead­ers across the ide­o­log­i­cal spec­trum — from those as rad­i­cal as Sam Adams to those as es­tab­lish­ment as Ge­orge Wash­ing­ton, and from those as in­di­vid­u­al­is­tic as Thomas Jef­fer­son to those as big­gov­ern­ment as Alexan­der Hamil­ton. We know from the lit­er­a­ture of the times that the whole pur­pose of the Fourth Amend­ment — with its re­quire­ments of in­di­vid­u­al­ized prob­a­ble cause and specif­i­cally iden­ti­fy­ing the tar­get — is to pro­hibit gen­eral war­rants.

Yet the FISA court has been is­su­ing gen­eral war­rants, and the NSA ex­e­cut­ing them since at least 2004.

Last week, we learned in a cu­ri­ous col­lo­quy be­tween mem­bers of the Se­nate Se­lect In­tel­li­gence Com­mit­tee and Gen. Keith Alexan­der and Deputy At­tor­ney Gen­eral James Cole that it is more likely than not that the FISA court has per­mit­ted the NSA to seize not only tele­phone, In­ter­net and tex­ting records, but also util­ity bills, credit card bills, bank­ing records, so­cial-me­dia records and dig­i­tal im­ages of mail, and that there is no up­per limit on the num­ber of Amer­i­cans’ records seized or the na­ture of those records.

The judges of the FISA court are sworn to se­crecy. They can’t even pos­sess the records of what they have done. There is no case or con­tro­versy be­fore them. There is no one be­fore them to op­pose what the NSA seeks. They don’t lis­ten to chal­lenged tes­ti­mony. All of this vi­o­lates the Con­sti­tu­tion be­cause it re­quires a real case or con­tro­versy be­fore the ju­ris­dic­tion of fed­eral courts may be in­voked. So when a FISA court judge is­sues an opin­ion declar­ing that NSA agents may spy to their hearts’ con­tent, such an opin­ion is mean­ing­less be­cause it did not em­anate out of a case or con­tro­versy. It is merely self-serv­ing rhetoric, un­chal­lenged and untested by the ad­ver­sar­ial process. Think about it: With­out an ad­ver­sary, who will chal­lenge the NSA when it ex­ceeds the “per­mis­sion” given by the FISA court or when it spies in de­fi­ance of “per­mis­sion” de­nied? Who will know?

For this rea­son, the FISA court is un­con­sti­tu­tional at best, and not even a court at worst. It con­sists of fed­eral judges ad­min­is­tra­tively ap­prov­ing in se­cret the wishes of the gov­ern­ment. By not ad­ju­di­cat­ing a dis­pute, which is all that fed­eral judges can do un­der the Con­sti­tu­tion, th­ese judges are not per­form­ing a ju­di­cial func­tion. Rather, they are per­form­ing a cler­i­cal or an ex­ec­u­tive one, nei­ther of which is con­tem­plated by the Con­sti­tu­tion.

Yet the pres­i­dent, his se­cret agents and the politi­cians who sup­port them would have you be­lieve that the NSA’s spy­ing has been ap­proved by bona fide fed­eral courts. It has not. Does the Con­sti­tu­tion per­mit the fed­eral gov­ern­ment to put us all un­der a mi­cro­scope? It does not. The gov­ern­ment is sup­posed to work for us and de­rive its pow­ers from the con­sent of the gov­erned. Do you know any­one who con­sented to all this? I do not.

The tra­di­tional bar that the gov­ern­ment must meet in or­der to be­gin gath­er­ing data on any of us is in­di­vid­u­al­ized, ar­tic­u­la­ble sus­pi­cion about crim­i­nal be­hav­ior. The pur­pose of that re­quire­ment is to pre­vent witch hunts and in­qui­si­tions and knocks on doors in the night. With­out that bar, there are no lim­its as to whom the feds can pur­sue.

What will be­come of us if the feds can watch our ev­ery move, hear our ev­ery con­ver­sa­tion, learn our ev­ery ex­pen­di­ture, read our ev­ery email, find out what we eat, whom we love and how we live? There are well over 4,500 fed­eral crimes. The feds can find some­thing wrong that any­one has done. Stalin’s chief of se­cret po­lice, the mon­ster Lavrenti Be­ria, once fa­mously pro­claimed: “Show me the man, and I will find you the crime.” His­tory teaches that a gov­ern­ment on a witch hunt, un­con­strained by law or Con­sti­tu­tion, will not stop un­til it can brand some­one as a witch. And an un­bri­dled in­qui­si­tion will not stop un­til it finds a heretic. The Con­sti­tu­tion sim­ply can never en­trusted the peo­ple who run the gov­ern­ment with this awe­some power. Rather, in the Fourth Amend­ment, it pro­hib­ited it.

If the right to life, lib­erty and the pur­suit of hap­pi­ness — which are the stated rea­sons for form­ing the United States of Amer­ica in the first place — means any­thing, its means that we all pos­sess the in­alien­able right to be dif­fer­ent and the in­alien­able right to be left alone. Nei­ther of th­ese rights can be hon­ored when the gov­ern­ment knows all. When the gov­ern­ment knows all and doesn’t like what it knows, we will have an au­thor­i­tar­ian state far more odi­ous than any other that his­tory has ever known.

On the face of an all-know­ing se­cret gov­ern­ment are large and aw­ful eyes — and no smile.

ILLUSTRATION BY GREG GROESCH FOR THE WASH­ING­TON TIMES

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