A pres­i­den­tial placebo

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

When Pres­i­dent Obama chose a Fri­day be­fore a three-day hol­i­day weekend to ad­dress a mat­ter as pro­found as the Na­tional Se­cu­rity Agency (NSA) spy­ing scan­dal, I sus­pected he would raise is­sues that he hoped the me­dia would ig­nore. That’s be­cause the Rea­gan White House did a study in the early 1980s and con­cluded that Fri­days are low-value news days, and thus, a good time to bury the lead, so to speak. Ev­ery pres­i­dent since then has fol­lowed that lead.

In­stead of ad­dress­ing the mas­sive vi­o­la­tions of the nat­u­ral and con­sti­tu­tion­ally pro­tected right to pri­vacy; in­stead of ac­knowl­edg­ing that but for the per­sonal courage of Ed­ward Snow­den, his ad­min­is­tra­tion would still be pulling the wool over our eyes; and in­stead of re-es­tab­lish­ing the se­ri­ous con­sti­tu­tional and civil lib­er­ties bona fides he es­tab­lished for him­self as a U.S. se­na­tor, the pres­i­dent de­fended his mas­sive spy­ing as a nec­es­sary tool in the fight to main­tain na­tional se­cu­rity and of­fered only a placebo to its crit­ics.

Just how mas­sive is this scan­dal? The Wash­ing­ton Post has re­ported that the NSA hacks into 500,000 Amer­i­can buddy lists and 600,000 Amer­i­can ad­dress books ev­ery day, and The Guardian of Lon­don re­ported last week that the NSA seizes 200 mil­lion Amer­i­can text mes­sages ev­ery day. This is in ad­di­tion to seiz­ing the con­tent of all cell­phone- and land­line-gen­er­ated tele­phone con­ver­sa­tions and copies of all emails sent or re­ceived in the United States. All of that is in ad­di­tion to seiz­ing all bank records, util­ity bills and credit card bills of ev­ery­one in the United States.

By not ad­dress­ing or re­fut­ing any of this, the pres­i­dent ob­vi­ously plans to con­tinue it. He also plans to re­ject the most ba­sic prin­ci­ples of Amer­i­can gov­ern­ment. If the gov­ern­ment de­rives its pow­ers from the con­sent of the gov­erned, as the Dec­la­ra­tion of In­de­pen­dence de­clares it does, and if the gov­erned lack the law­ful au­thor­ity to hack and seize our neigh­bors’ texts, phone calls and util­ity bills, how could we have given that au­thor­ity to the gov­ern­ment?

In the pres­i­dent’s world, that’s an easy ques­tion to an­swer: Do it in se­cret. En­act leg­is­la­tion that lets a dozen NSA-syco­phan­tic mem­bers of Congress speak for the leg­isla­tive branch, tell only that dozen about the spy­ing in se­cret and swear them to se­crecy. En­act leg­is­la­tion that lets a dozen se­cret judges is­sue search war­rants based on the gov­ern­ment’s wishes rather than prob­a­ble cause, and seek per­mis­sion from any one of those judges in se­cret and swear them to se­crecy. Then in pub­lic, deny and lie, and change the sub­ject.

In a thinly dis­guised ef­fort to change the sub­ject, Mr. Obama’s Fri­day speech fo­cused on where the seized data is stored, rather than on whether the gov­ern­ment in a free so­ci­ety is em­pow­ered to col­lect it. He pro­posed that the data seized by the NSA be stored at non­govern­ment lo­ca­tions that he did not iden­tify and kept there and be made avail­able to the NSA af­ter ap­proval by the se­cret For­eign In­tel­li­gence Sur­veil­lance Act (FISA) court.

Even if a third party will­ing and able to store this data could be found, the ad­di­tional step to the FISA court is no ad­di­tional con­sti­tu­tional pro­tec­tion what­so­ever. Ev­ery fed­eral and state court in the United States fol­lows the con­sti­tu­tional re­quire­ment that when­ever any gov­ern­ment is seek­ing a search war­rant to con­duct sur­veil­lance, the gov­ern­ment must present par­tic­u­lar­ized ev­i­dence iden­ti­fy­ing its tar­get, and the ev­i­dence must con­sti­tute prob­a­ble cause of crim­i­nal be­hav­ior on the part of that tar­get — ev­ery court, that is, ex­cept the FISA court. That court is­sues gen­eral war­rants that do not name a tar­get and are based on the NSA’s wishes, rather than ev­i­dence of prob­a­ble cause.

That silent ex­ha­la­tion of relief from the NSA last week was gen­er­ated by the re­al­iza­tion that this third­party stor­age pro­posal will not re­strict the mas­sive spy­ing one iota.

Added to this placebo is the pres­i­dent’s pro­posal to em­ploy a de­fender of the Con­sti­tu­tion (what a great job ti­tle!) to ap­pear be­fore the FISA court, along with lawyers for the NSA, and ar­gue against the NSA’s wishes. This is another di­ver­sion that would add another level of un­con­sti­tu­tional and ir­rel­e­vant com­plex­ity to the cur­rent scheme.

Cur­rently, the per­sons on the FISA court may be fed­eral judges, but they are per­form­ing cler­i­cal func­tions, not ju­di­cial func­tions. That’s be­cause, un­like state courts, which are courts of gen­eral ju­ris­dic­tion, the ju­ris­dic­tion of all fed­eral courts can only be in­voked when there are real cases and con­tro­ver­sies brought to them. If the de­fender of the Con­sti­tu­tion ap­peared in front of the FISA court, he could only do so by rep­re­sent­ing a real client in a real dis­pute with the fed­eral gov­ern­ment. How­ever, the NSA does not iden­tify its tar­gets, much less deal with their lawyers. The pres­i­dent’s pro­posal would turn this non-court court into a law school moot-court ex­er­cise.

His third pro­posal adds in­sult to in­jury. He of­fers to stop the NSA from do­ing to for­eign lead­ers what it has been do­ing to Amer­i­cans. No doubt, that is to en­able him to save face with his selfie-snap­ping Euro­pean col­leagues. It hardly smacks of un­der­stand­ing the prob­lem of mas­sive spy­ing, though. It may be an in­sult to spy on his fel­low heads of state, and it may af­fect diplo­macy with them, but stop­ping it hardly en­hances the nat­u­ral right to pri­vacy for the rest of us.

This mass spy­ing is uniquely and pro­foundly unAmer­i­can, and will con­tinue to un­der­mine our free­doms. I am not ar­gu­ing here that all spy­ing is il­le­gal — just that spy­ing on all of us is il­le­gal. Why bother with the for­mal­ity of war­rants when they per­mit all spy­ing all the time? Spy­ing on any­one not named in a war­rant, or em­ploy­ing a war­rant not based on prob­a­ble cause, is the hall­mark of those to­tal­i­tar­ian regimes against which we have fought our just wars and our cold wars. Yet to­day, the gov­ern­ment in Amer­ica seems more like the for­mer en­e­mies we van­quished than the place of life, lib­erty and the pur­suit of hap­pi­ness the Framers es­tab­lished. An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is an an­a­lyst for the Fox News Chan­nel. He has writ­ten seven books on the U.S. Con­sti­tu­tion.

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