The Constitution’s Pearl Harbor

It was a sneak attack. As the stream of borrowed money that funds the Regime was threatened with a (temporary yet embarrassing) cutoff, Rep. Mike Rogers (R-Oceania), inserted what Rep. Justin Amash (R-Michigan) calls a "novel" provision into H.R. 4681, the Intelligence Authorization Act for Fiscal Year 2015 – one "that for the first time statutorily authorizes spying on U.S. citizens without legal process."

The resolution was headed for a perfunctory vote by acclamation but the ever-vigilant libertarian Amash insisted on a roll call vote, putting the culprits on the record – and mobilizing 45 Republicans and 55 Democrats to vote an emphatic "Nay!"

H.R. 4681 is now the law of the land – and the implications are ominous.

Previous legislation, including the PATRIOT Act, at least attempted to create a halo of "legality" around the Surveillance State by requiring some procedural folderol prior to despoiling the contents of our email in-boxes. That this ritual was to occur in secret, with the "court" 98.9 percent certain to take the government’s side, is beside the point – the point being that all pretenses have been dropped. The idea that the government must answer in court to the charge that it is overstepping its constitutional authority has been overthrown – and with it our old republic. Citizens have become subjects – and all with the stroke of a pen.

That the penumbra of "law" was always a smokescreen for the rapacity inherent in all governments is something us libertarians could have told you – indeed, have been telling you – and yet one can hardly fault the skepticism of both liberals and conservatives. After all, don’t we have a Bill of Rights? Isn’t this still America?

The answer to both questions is no. The irrefutable evidence for this is contained in section 309 of H.R. 4681. As Amash points out:

"To be clear, Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of US persons’ private communications obtained without legal process such as a court order or a subpoena. The administration currently may conduct such surveillance under a claim of executive authority, such as E.O. 12333. However, Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data."

The origins of this Pearl Harbor-type assault on the Constitution lie in an executive order issued by none other than that great "libertarian," Ronald Reagan. Executive Order 12333 allows for the collection, retention, and dissemination of all communications outside the United States in the course of a foreign intelligence investigation. US persons are not exempt provided the collection of their information is "incidental." Written in the pre-Internet era, 12333 never anticipated the global reach of the electronic age, a world where borders have been erased. Your communications and vital information – say, your bank password – is more than likely to at one point cross international borders and be stored on a server outside the United States.

The focus so far has been on the PATRIOT Act, but there is ample evidence our overseers are utilizing 12333 to justify a whole range of data collection we can only guess at.

The Rogers legislation for the first time gives the congressional imprimatur to Reagan’s executive overreach. This tells us all we need to know about the dire state of civil liberties in this country. Politically, the authoritarians in both parties are dominant: it was a grand alliance of Harry Reid, Mitch McConnell, John Boehner, and Nancy Pelosi that finally breached the Constitution’s last defenses.

The most revealing aspect of this whole issue is the experience of John Napier Tye former State Department official in charge of "Internet freedom," who wrote a speech routinely giving out the liberal-Obama administration party line that the government’s surveillance programs can always be "reformed" because we live in a "democracy." As per routine, he submitted his draft to White House legal counsel, probably not expecting any objection to this particular point – and was no doubt shocked to receive a correction from the lawyers:

"In March I received a call from the White House counsel’s office regarding a speech I had prepared for my boss at the State Department. The speech was about the impact that the disclosure of National Security Agency surveillance practices would have on U.S. Internet freedom policies. The draft stated that ‘if US citizens disagree with congressional and executive branch determinations about the proper scope of signals intelligence activities, they have the opportunity to change the policy through our democratic process.’

"But the White House counsel’s office told me that no, that wasn’t true. I was instructed to amend the line, making a general reference to ‘our laws and policies,’ rather than our intelligence practices. I did.

"Even after all the reforms President Obama has announced, some intelligence practices remain so secret, even from members of Congress, that there is no opportunity for our democracy to change them."

The myth of democracy is one of liberalism’s most cherished illusions, and yet here it was being rudely dispelled by the legal eagles of the most liberal administration in recent history. What a shock to the system!

Yet such shocks are what the present age is made of. In response to the shock of 9/11, the political spectrum once again rearranges itself, abolishing the old categories of "liberal" and "conservative" and ushering in new actors on the American political stage: authoritarians versus libertarians. The former are cultists of State power, who justify their depredations against the Constitution by invoking the sacred name of "national security," while the latter are the Constitution’s last remaining defenders, who in this instance were outflanked and outvoted.

The last-minute addition to the Intelligence Authorization Act is putting lipstick on a pig, a.k.a. Executive Order 12333, but no amount of cosmetics will dress up this act of Congress to look like anything other than what it is – the ugly face of unabashed authoritarianism. Remember this next time the US State Department – perhaps its "Internet freedom" section – warns us that Russia is "backsliding."

We’re all Soviet now.

Correction: The first paragraph of my Aug. 20 column, "Ferguson: Ten Days That Shook the Country," states unequivocally:

"The facts surrounding the murder of Michael Brown, an 18-year-old resident of Ferguson, Missouri, gunned down by Darren Wilson, a Ferguson police officer, are not entirely known – but enough is known that it’s quite justified to characterize it as cold-blooded murder."

The grand jury testimony of witnesses, and accounts of the forensic evidence throw considerable doubt on the accuracy of this statement. There was clearly some kind of struggle that occurred in or at Wilson’s patrol car, and there is further reason to dispute the contention that Brown died with his hands in the air in a gesture of surrender. On the other hand, Wilson is by no means exonerated by the evidence. In short, the circumstances surrounding Brown’s death are much murkier than I assumed them to be. In this case I appear to have contracted a bad case of confirmation bias, for which I apologize to my readers. However, I stand by the other 95 percent of my piece, which was concerned with the militarized response to the Ferguson events.


You can check out my Twitter feed by going here. But please note that my tweets are sometimes deliberately provocative, often made in jest, and largely consist of me thinking out loud.

I’ve written a couple of books, which you might want to peruse. Here is the link for buying the second edition of my 1993 book, Reclaiming the American Right: The Lost Legacy of the Conservative Movement, with an Introduction by Prof. George W. Carey, a Foreword by Patrick J. Buchanan, and critical essays by Scott Richert and David Gordon (ISI Books, 2008).

You can buy An Enemy of the State: The Life of Murray N. Rothbard (Prometheus Books, 2000), my biography of the great libertarian thinker, here.

Author: Justin Raimondo

Justin Raimondo passed away on June 27, 2019. He was the co-founder and editorial director of, and was a senior fellow at the Randolph Bourne Institute. He was a contributing editor at The American Conservative, and wrote a monthly column for Chronicles. He was the author of Reclaiming the American Right: The Lost Legacy of the Conservative Movement [Center for Libertarian Studies, 1993; Intercollegiate Studies Institute, 2000], and An Enemy of the State: The Life of Murray N. Rothbard [Prometheus Books, 2000].