Judge Andrew Napolitano

Domestic Spying Is Dangerous to Freedom

By Judge Andrew Napolitano - Thursday, August 8, 2013

How is it that the government can charge Edward Snowden with espionage for telling a journalist that the feds have been spying on all Americans and many of our allies, but the NSA itself, in a public relations campaign intended to win support for its lawlessness, can reveal secrets and do so with impunity? That question goes to the heart of the rule of law in a free society.

Since Snowden’s June 6th revelations about massive NSA spying, we have learned that all Americans who communicate via telephone or the Internet (who doesn’t?) have had all of their communications swept up by the federal government for two-plus years. The government initially claimed that the NSA has gathered only telephone numbers and billing data. Now we know that the NSA has captured and stored the content of trillions of telephone conversations, texts and emails, and can access that content at the press of a few computer keys. All of this happened in the dark, with the permission of President Obama, with the knowledge and consent of fewer than 20 members of Congress who were forbidden from doing anything about it by the laws they themselves had written, and based on secret legal arguments accepted by a secret court that keeps its records secret even from the judges who sit on the court.

This massive spying — metadata gathering, as the NSA calls it — was also done notwithstanding statements NSA officials made in public under oath and in secret classified briefings to Congress, which effectively denied it. The denials were in one case admitted to — “least untruthful,” as the director of national intelligence later called his own testimony. Then, when even members of Congress who usually support a muscular national security apparatus realized that they, too, had been lied to by the NSA, the NSA responded with its own leaks.

It has leaked, for example, that as a consequence of its spying it has prevented at least 50 foreign-originated plots from harming Americans. It eventually backed off that number and declined to reveal with specificity what it independently learned and how that knowledge foiled the plots. But we do know that its colleagues in the FBI were participants in many of those plots, which means they weren’t real plots at all — just government stings going after dopes and dupes.

Last week, the NSA leaked that it captured actionable intelligence of grave and imminent danger to our embassies in the Middle East. The implication it wants you to draw here is that because it caught al-Qaida operatives talking in code in Yemen about deadly deeds they plan to perpetrate in the Arabian Peninsula, somehow the NSA’s spying on 300 million innocent Americans is constitutional, lawful, effective and therefore worth the loss of freedom.

Earlier this week, we learned that other federal agencies of alphabet nomenclature — the DHS, the DoJ, the DoD, the DEA, the CIA, the IRS, the FBI — all want access to the NSA’s database, and it has shared some of it with most of them. Also this week, former DEA (Drug Enforcement Administration) agents, claiming this has been going on for at least a decade, acknowledged that the DEA regularly receives raw data from the NSA and uses that data to commence criminal investigations.

Down the slippery slope we go.

The whole NSA spying apparatus was sold to Congress as a limited mechanism for combating foreign terrorists. How putting the intimate thoughts of all Americans who use telephones and the Internet under the federal microscope helps to fight foreign terrorists has never been explained in a public court — only in a secret one. But using this extra-constitutional means to fight crime brings us closer to a Soviet-style and value-free police state.

The Constitution intentionally has placed values in the path of law enforcement and national security so as to maintain our natural rights. Those values are generally articulated throughout the Constitution and specifically addressed in the Fourth Amendment. The linchpin of those values is the natural right to be left alone. All persons — even bad guys — have that inalienable right, and the government may only invade that right when it can identify a bad guy and articulate the probable cause it has to believe he is committing criminal acts. The rest of us — those for whom there is no probable cause of criminal acts — retain that right, and it cannot be taken away from us by the supine acquiescence of Congress or an unnamed judge in a secret court. That constitutional requirement — and that requirement alone — has kept Americans free from Soviet-style persecutions.

Now comes Obama, who is quarterbacking the most massive end run around the Constitution in modern times by invading everyone’s right to be left alone in the name of national security, but in reality for any governmental purpose the government wishes. And for the unfortunate people whose criminal prosecutions have commenced from the NSA’s supposedly anti-terror spying, the feds are refusing to reveal to lawyers what the source of the negative information against them was. That, of course, violates the constitutionally protected right to confront all of one’s accusers, especially those who have been paid for their accusations.

What’s going on here?

It is painfully obvious that the government is not troubled by its own violation of the Constitution. The people in the government who have done this are far more concerned with their retention of power than they are with protecting our personal liberties. That explains their perverse view that when Snowden frustrates them with a whistle-blowing leak, he can be prosecuted, but when they rebut him with their own leaks, they are to be lauded. That is not the rule of law in a free society.

What will the NSA spies seek next? Our passwords? We already know the answer to that one. They asked for them last week.


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2 Responses to “Domestic Spying Is Dangerous to Freedom”

  1. proudtobefree says:

    Pretend there is no internet, no cell phones, no electronic means of communication. There is only a copy machine and thousands of Government workers with the job title "National Security Agency Copyists" (NSAC).

    Their job is to secretly open every letter sent by US citizens to anyone i the world and copy it using a copy machine. They don't read the letters, they only copy them and store them for future references, in case there is a perceived threat against the "Homeland".

    I think not.

    Doesn't recording and storing our texts, emails and conversations amount to the same thing – no matter who sees them or when?

    Its information about peoples thoughts – politics, religious beliefs, sex life, etc. sitting around waiting to be used against whomever is deemed an enemy of the "Homeland" at some point in the future. There are 2 countries where this happened in recent history. Germany and Russia. The Fascists used information about Liberals, Communists and Conservatives to squelch any dissent against the Nazis. The Communists used the same information against Fascists, Liberals, Conservatives and Jews. Thousands of European Liberals, Jews and Conservatives had their freedoms, property and lives forfeited. Many were persecuted (prosecuted) for revealing state secrets like the existence of concentration camps and the mass murders of the Jews, the programs to deal with the infirm by euthanizing them or for.

    People say it can't happen here, or that the above comparison doesn't fit. Really, almost monthly I hear our President refer to Conservatives as being cruel and mean, Tea Party members as being fringe and out of touch, Libertarians as just plain Kooks. Apparently anyone who voices dissent against our current government can be seen as a threat to the "Homeland". Anyone who studies the history of Europe in the early 20th century can't help but see the parallels between what was going on then and what is now happening in America.

    The crisis snuck up on the early 20th century Europeans, they thought that the loss of their freedoms would be temporary and the they woke up one morning with nothing but war and misery that lasted for decades.

    What kind of country have we become? Many say that this power struggle between individual freedom and government control as been going on for decades, and it has. The problem is that the government is winning. It is slowly but surly eroding personal freedom and it is doing it in secret in the name of protecting those freedoms. How ironic.

  2. Daniel Joseph says:

    The FBI legally recorded phone conversations of alleged mobsters back in the 1950s. These legal wire taps were approved by Federal Judges in sealed court orders. There may have also been illegal wire taps but we know there were legal wire taps. Homes, businesses, auto, etc. have also been legally recorded for 60 years.

    These legal wire taps were an effective tool against organized crime until organized crime members learned that the phone conversations were being wire taped. As soon as they learned, organized crime members began speaking in code. Rather than saying something like: “The body was buried in the forest preserve.” they said something like: “The thing was taken care of in the usual place.”

    In other words, as soon as any bad guy (including terrorists) knows someone is listening, they don’t become honest. Bad guys just adapt. Prepaid phones; encrypted emails; proxy servers; speaking in code; face-to-face conversations; etc. make all the money NSA has spent completely ineffective against bad guys.

    The single best tool law enforcement has ever had is the anonymous informant. A long time ago, people could make a call from a pay phone to law enforcement anonymously. Law enforcement professional will tell you that this has always been the most effective tool against crime. For this call to be effective, the call would include details that made law enforcement’s job easy without providing the caller’s identity.

    Today, voice recognition software makes the anonymous call impossible. So called whistle blowers are punished for doing the right thing. The recent video of the 13 year old boy being beaten on the school bus is a heart wrenching example. But examples of whistle blowers being punished are everywhere.

    But there is a solution. The anonymous first class letter. I would propose that honest Muslims would rat out Radical Muslims if they knew how to do it in a way where they would not suffer consequences.

    I suggest that the FBI print one-page flyers telling people how to report a potential crime anonymously. Everyone knows that a call to an 800 number will be traced and your voice print will be recorded. Everyone knows that an FBI promise to protect an informant is a joke. Tell whistle blowers to print a letter on common paper from a common printer from a computer that is not connected to the internet. Don’t touch the paper (no fingerprints) or lick or tough the stamp or the envelope (no DNA) and mail it from a mail box that doesn’t have a camera recording who dropped mail in the box but probably has a lot of mail in the box. The letter should have as much detail as possible about the situation to add credibility to you allegations and make law enforcement’s job easy.

    The entire insider trading scandal in the 1980s started with a package in the mail from Brazil with lots of detail about the insider trading scandals.

    Now, what does the former anonymous caller do if they think that law enforcement is dirty, incompetence or only interested in selected enforcement like the DofJ, IRS, EPA, etc. have demonstrated the last several years? Send the same anonymous letter to the news media. Mainstream news may not care. But use your brain and you can figure out someone who will care.

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