"Liberty lies in the hearts of men and women;
when it dies there, no constitution, no law, no court can save it;
no constitution, no law, no court can even do much to help it."
– Judge Learned Hand (1872-1961)
Late last week, a judge on the Foreign Intelligence Surveillance Court revealed that he had had enough of the FBI and Congress trashing the Constitution. The normally secretive court and the normally secretive judge explained in a rare public opinion the unlawful behavior of FBI agents spying on ordinary Americans in violation of the Fourth Amendment.
The FISA Court judge revealed that the FBI has spied illegally on 278,000 Americans in 2022, including – all unnamed – a U.S. senator, a state senator and a state judge. These revelations should have been shocking, but they were buried on the back pages of weekend newspapers and never made it to a national debate. The story was not even featured prominently on major websites.
The restraints imposed on the government in the Fourth Amendment have been so routinely and consistently disregarded that the public has come to expect them – and their revelations no longer outrage the conscience.
Nevertheless, every encroachment upon personal freedom – here the natural human right to be left alone – when unchecked, forms a small precedent, and becomes another step on the stairway to totalitarianism. It makes the next encroachment easier for the zealots in the government to accomplish and to justify.
If Americans believe that the Bill of Rights means what it says, then all rational persons – except the zealots in the deep state and the quislings in Congress – should be demanding that the Congress and the FBI conform to and abide by the restraints imposed upon them by the Constitution they have sworn to uphold.
Here is the backstory.
The Fourth Amendment, which was written in the aftermath of British soldiers searching colonial homes with general warrants – search where you please and seize what you wish – serves two values. The first is privacy, and the second is restraint upon the government.
Privacy is a natural human right. A right is an indefeasible claim against the whole world. The right to privacy comes from our hearts, along with other natural human rights, such as life, speech, press, association, religion, self-defense, travel, ownership and use of property. We all yearn for privacy. Because privacy is integral to us – like the yearning to think as you wish and say what you think – it is not a gift or privilege from the government.
In protecting privacy in the Fourth Amendment, James Madison, the drafter of the Bill of Rights, was determined to prevent the new American government from doing to Americans what the British had done to the colonists. Thus, the Fourth Amendment serves that purpose – and embraces privacy as a value, a human right superior to the needs of the government – by imposing a warrant requirement on the government.
This warrant requirement protects all people – good, bad, Americans, foreigners, people the government hates and fears – from the violation of their privacy. Surveillance is a search for and seizure of data from or about a person, and all searches and seizures can only lawfully be done via a warrant.
Only judges can issue warrants, and they can only do so after evaluating evidence under oath demonstrating that it is more likely than not that there exists more evidence of crime in the place to be searched or on the person or thing to be seized. The warrant itself must specifically describe the place to be searched or the person or thing to be seized.
The warrant requirement’s second purpose is to confine the government and its appetite for surveillance to crimes that have already occurred. This is done by limiting the basis for the warrant to probable cause – the more likely than not standard. Thus, only probable cause of crimes that have already occurred can be presented to a judge in a warrant application.
Sadly, much of this changed from and after 9/11, as President George W. Bush sought to blame anyone and anything he could for his own failures to abide intelligence warnings. Foremost among those blamed was THE CONSTITUTION ITSELF.
Bush persuaded Congress to eliminate the warrant requirement for foreign persons communicating in the US so the government could surveil them and predict their crimes. Thus, Congress enacted section 702 of FISA authorizing the FBI and their federal cousins to spy without warrants on foreign persons and on the Americans with whom the foreign persons communicate. The FISA Court has extended this authority to the sixth level of communication.
Section 702 expires at the end of this year. It is unconstitutional on its face – Congress cannot alter the Fourth Amendment – and it should not be reenacted.
When the FBI spies on a foreign person without a warrant and comes upon communications of an American, those communications are supposed to be put into a database and accessed only by a search warrant. The angry FISA Court judge revealed last week that that database – containing warrantlessly obtained private communications of suspicion-free Americans – was accessed illegally by FBI agents 278,000 times last year.
We don’t know who the public officials are who were swept up in this. But we do know that when the state judge complained to the FBI about constitutional violations he observed and which were not redressed by local authorities, the FBI spied on him!
Enough is enough. If we don’t fire and prosecute the folks who have sullied the Constitution, if we are no longer outraged at its most obvious violations, if we elect to office those who promise to uphold it and reelect them after they have trashed it, we must recognize that we have lost freedom in our hearts.
And then it is gone.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the US Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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