Judge Andrew Napolitano

Fidelity to the Constitution When We Need It

By Judge Andrew Napolitano - Thursday, June 20, 2013

When former spy Edward Snowden revealed to the world that the federal government is spying on most Americans, most Americans were surprised and unhappy. But half of official Washington yawned before it roared. Somehow the people in the government had a pretty good idea of what government spies are doing, and they more or less approve of it — but not all of them.

Politicians as diverse as Republican Speaker John Boehner and Democratic Sen. Dianne Feinstein called Snowden a traitor. So did former Vice President Dick Cheney, and President Obama said that for once Cheney’s words were music to his ears. On the other hand, former Democratic Congressman Dennis Kucinich, Republican Sen. Rand Paul, my Fox News colleague Bill O’Reilly and I have all referred to Snowden as a hero.

What did Snowden do that has those in power screaming for his scalp and those — generally — who fear the loss of liberty, including millions of young people, grateful for his courage?

The NSA is America’s domestic spying apparatus. Its budget is secret. It will soon occupy the largest federal building on the planet. It often hires outside contractors to do much of its work. One of those contractors is Booz Allen Hamilton. Booz Allen’s co-chair is former Admiral John M. McConnell, who once headed the NSA. When Snowden began his work for Booz Allen, he took two oaths. The first oath was to keep secret the classified materials to which he would be exposed in his work as a spy; the second oath was to uphold the Constitution.

Shortly after Snowden began his work with the NSA, he came to the realization that he could not comply with both oaths. He realized that by keeping secret what he learned, he was keeping the American public in the dark about what its government is doing outside the Constitution in order to control the public.

What is it doing?

The government persuaded a federal judge with a perverse understanding of the values and history and language of the Constitution to sign a series of orders directing the largest telephone company in the U.S. and the largest Internet providers in the world to make available to the government’s prying eyes all sorts of information about nearly all of us, thus allowing the feds to monitor our use of land line and wireless phones, as well as our use of emails and texts. The numbers are staggering. Verizon has greater than 113,000,000 U.S. customers who generate or receive more than one billion phone calls every day. Americans text and email one another using the services of Microsoft, Google, Yahoo, Facebook and others many billions of times every day.

The judge’s order was profoundly unconstitutional, as is the section of the Patriot Act that authorized it. The Constitution requires that the government demonstrate to all judges being asked to sign search warrants specific evidence of criminal behavior contained in the things to be seized. And it requires that the warrants themselves particularly describe the places to be searched or the persons or things to be seized.

In this case, the things being seized consist of digital data about nearly everyone in America, which in the hands of a skilled spy can be used to monitor our physical movements and communications and, according to former CIA Director David Petraeus, to predict them. The Patriot Act facilitates these dragnets by unconstitutionally reducing the standard for the issuance of search warrants. The president, who refuses to deny that his spies possess the contentof our communications, claims they are not listening to it or reading it.

Who would believe President Obama?

One of the spies who knew the power he and his fellow spies had and who had access to the innermost thoughts of hundreds of millions of us — and who disbelieved the president — was Edward Snowden. Snowden realized the unconstitutional nature of what the government was doing and concluded that he could not be faithful to both of his oaths. One of those oaths — to retain secrets — is grounded in a federal statute that requires secrecy and punishes the exposure of secrets. The other oath is grounded in the Constitution, which is the supreme law of the land and protects the natural right to be left alone and does not punish the governmental violation of that right.

When confronted with the conflicting oaths, Snowden opted for the higher good: fidelity to the supreme law of the land. Hence, in order to protect the privacy of us all, Snowden violated the lesser oath and upheld the greater one. He could not serve two masters when the lesser of the two (fidelity to the government’s laws) facilitated a corruption of the greater of the two (the primacy to the Constitution).

He’s a traitor, the establishment roared. He’s a high school dropout. He left the Army. He admits to having lots of sex with his girlfriend. He fled to Hong Kong.

Who cares?

He understands, as Ronald Reagan did, that if we don’t control the government, the government will control us. That’s why the Washington establishment yawned when we learned what it knew and now roars because Snowden challenged it. Those in power want to stay there and will misuse the Constitution to do so for as long as they can get away with it, no matter to which political party they belong. Any government that secretly spies on nearly all the population is aiming to control the population.

Snowden knew that this massive violation of the constitutionally guaranteed rights of nearly every American, orchestrated and operated in secrecy, is corrupting the Constitution and empowering the corruptors. It was that understanding plus a willingness to face down those in power who lack fidelity to the Constitution and who can do him harm that constituted the behavior of a hero.

Is he flawed?

The only hero who was not flawed was nailed to a tree 2,000 years ago because those He came into the world to save rejected Him.


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18 Responses to “Fidelity to the Constitution When We Need It”

  1. Andrew John says:

    Good article Judge.

    However, please note that DC politicians do use the Constitution whenever it furthers their goals to reduce its importance and influence over them (see Patriot Act and NDAA).

    I would like to give a shout out to one of my high school buddies who works for the NSA (and are probably reading it as I type it). Keep up the good work Dano!!!

  2. Kate says:

    Violation of our constitution has to stop! Good for you Snowden – wish there were more people who actually know what the constitution is all about.

  3. Linda L. Johnston says:

    we have been told from the beginning of this scandal that Congress was aware this had been going on for some time. does that mean everyone in congress? if that is the case, i think we need a clean-sweep thoughout congress. i'd like to know who in congress knew what and when. i think most folks would. i also believe it would make a huge impact on each of us the next time we vote for our representatives.

  4. The LookOut says:

    Great article Judge.
    In answer to the question – I Would Believe Snowden before Obama by a ratio of 100/1

  5. libertarianzen says:

    I believe we can conclude that the political establishment follows the principles of George Orwell's doublespeak, directly violating the Law of Non-Contradiction (A=A). It's members would have you believe A=B,C,Z anything but A.

    The article "The Warrior Discovers the True Patriot of the American Way of Life" http://dld.bz/cBns8 says: I doubt if anyone would state that our founding fathers were anti-patriots, unless they are supporters of socialism or the monarchial system of government.

    Imagine this if you can. If Thomas Jefferson, James Madison, John Hancock, John Adams and the others were around today, our government and many of its citizens would consider them as anti-patriotic traitors. Our government might even label them as terrorists. You can see why establishment politicians label Edward Snowden as a traitor.

  6. Mike P. says:

    Gadz…….I've come to expect great articles from the Judge, but once again I am surprised by his clarity and brilliance. Judge, thank you just for being here for us!

  7. Lawrence Ekdahl, says:

    Mr. Snowdon's life is over. He will be mercilessly hunted down and have almost no place of refuge. A tyrannical government can't allow the truth of their unlawful actions see the light of day.

    • texas wolfie says:

      No way. He will be a hot potato no matter where he lands. If he comes up dead or damaged, the government will have hell to pay.

  8. Gill O’Teen says:

    I’m shocked! Shocked, I say! I actually find myself in agreement with Dennis Kucinich and Bill O’Reilly at least this one time. In their cases it must be because even a broken clock occasionally provides the correct time – twice a day if the hands no longer move.

  9. texas wolfie says:

    Anyone who dilutes the power in Washington is a hero to me; I don't care if he rides a camel, wears a toga, and drinks yak's milk, he is my hero.

  10. Pup says:

    I think you are giving Snowden a lot of credit for being as clear thinking as you are. If that was the case then kudos to him. I suspect his motives may not have been this noble.

  11. Wordpainter says:

    God job Judge. I worry every day about the safety of those who speak out against the abuses of government. Petreaus, who wouldn't agree to the talking points suddenly find his affair becomes public and he has to leave. Hicks is being vilified (since when is being told not to go to where you can help, but somewhere else, not being told to stand down) General Carter Hamm commander of AFRICOM goes quiet (after first saying he had people ready to help in Ben Ghazi) and now Snowden is up against the power of the US government. Some ask why he couldn't go through channels with his information? Just look at what other whistleblowers went through to know that doesn't seem to work, though it should. Wouldn't surprise me if Glenn Beck wasn't forced off TV. This country was founded on the right to dissent, but now we are all afraid to.

  12. Annette says:

    Why are we shocked? The guys in the White House look to us as the little people and when they’re caught out .. how dare one of the little people speak out! Snowden is indeed a hero but alas we will need many more before the people once again have the power to put governments around the world back in their rightful place …. Serving us , not ruling us

  13. frank says:

    thank you judge for another great essay…..the most offensive behavior of the us governemnt in this and other cases is
    their obsession with suppressing by any means necessary
    with laws,persecution,threats,intimidation, and many other criminal acts- the first amendment of the us constitution…..

    they can’t get enough votes
    to repeal the first amendment so the next best thing
    is to add unconstitutional laws that facilitate suppressing it or eliminating it…or exercising criminal threats and intimidation…..

    ..to keep this in perspective the nazis bombed
    london over 200 nights in a row and the british were not as obsessed as the us government in suppressing free speach……

  14. Alice says:

    Thank you once again for giving voice to what we at the bottom can only gnash our teeth about.
    Indeed, that young man is a hero. It is our duly elected officials who are guilty of treason.

  15. Hans Slade says:

    Are we to believe the bad guys do not know their plotting on the phone and emails are subject to government snooping? I guess the public has no "need to know" of this well guarded Secret.
    Our elected officials really do believe they are reigning over a constituency of idiots.
    Indignation after being caught with your pants down can hardly bother an emperor with no clothes.
    When will enough be enough?

  16. 67ghq says:

    Those in power want to stay there and will misuse the Constitution to do so for as long as they can get away with it, no matter to which political party they belong.

    And this is the condemnation, that light is come into the world, and men loved darkness rather than light, because their deeds were evil.
    For every one that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved.

    God has the same problem as we do, and that problem is us! Who can heal us? Who other than the God who underpins the Declaration OI, and the Creator of the realities of the Bible. First if we desire it, He will give us Independence from the greatest tyrant of all – the sin in our individual members. [Romans7] Otherwise we (gods) are eternally trapped in our collective "us" in so many ways and elections, however "democratic" will not save us.

  17. texas wolfie says:

    Who the hell ever allowed union workers in the Federal government?? I don't recall giving my permission to the congressmen/women or senators in my district??? How did this happen to us??

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