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Last week, The Wall Street Journal revealed that members of the intelligence community — part of the deep state, the unseen government within the government that does not change with elections — now have acquired so much data on everyone in America that they can selectively reveal it to reward their friends and harm their foes. Their principal foe today is the president of the United States.

Liberty is rarely lost overnight. The wall of tyranny often begins with benign building blocks of safety — each one lying on top of a predecessor — eventually collectively constituting an impediment to the exercise of free choices by free people, often not even recognized until it is too late.

Here is the back story.

In the pre-Revolutionary era, British courts in London secretly issued general warrants to British government agents in America. The warrants were not based on any probable cause of crime or individual articulable suspicion; they did not name the person or thing to be seized or identify the place to be searched. They authorized agents to search where they wished and seize what they found.

The use of general warrants was so offensive to our Colonial ancestors that it whipped up more serious opposition to British rule and support for the revolutionaries than the “no taxation without representation” argument did. And when it came time for Americans to write the Constitution, they prohibited general warrants in the Fourth Amendment, the whole purpose of which was to guarantee the right to be left alone by forcing the government to focus on bad guys and prohibit it from engaging in fishing expeditions. But the fishing expeditions would come.

In 1978, Congress passed the Foreign Intelligence Surveillance Act, which was intended to rein in the government spying on Americans that had been unleashed by the Nixon administration. FISA established a secret court and permitted it to issue warrants authorizing spying on agents of foreign governments when physically present in the United States.

People born in foreign countries who are here for benevolent or benign or even evil purposes have the same constitutional protections as those of us born here. That’s because the critical parts of the Constitution that insulate human freedom from the government’s reach protect “persons,” not just citizens. But FISA ignored that.

And FISA was easy for the government to justify. It was a pullback from Richard Nixon’s lawlessness. It required the feds to seek a warrant from federal judges. The targets were not Americans. Never mind, the argument went, that FISA has no requirement of showing any probable cause of crime or even articulable suspicion on the part of the foreign target; this will keep us safe. Besides, the government insisted, it can’t be used against Americans.

That argument was bought by presidents, members of Congress and nearly all federal courts that examined it. We don’t know whether the authors of this scheme really wanted federal spies to be able to spy on anyone at will, but that is where we are today. Through secret courts whose judges cannot keep records of their own decisions and secret permissions by select committees of Congress whose members cannot tell their constituents or other members of Congress what they have learned in secret, FISA has morphed so as to authorize spying down a slippery slope of targets, from foreign agents to all foreigners to anyone who communicates with foreigners to anyone capable of communicating with them.

The surveillance state regime today permits America’s 60,000 military and civilian domestic spies to access in real time all the landline and mobile telephone calls and all the desktop and mobile device keystrokes and all the digital data created and used by anyone in the United States. The targets today are not just ordinary Americans; they are justices on the Supreme Court, military brass in the Pentagon, agents in the FBI, local police in cities and towns, and the man in the Oval Office.

The British system that arguably impelled our secession in 1776 is now here on steroids.

Enter the outsider as president. Donald Trump has condemned the spying and leaking, as he is a victim of it. While he was president-elect, the spies told him they knew of his alleged misbehaviors — vehemently denied — in a Moscow hotel room. Last week, his White House staff was shaken by what the spies did with what they learned from a former Trump aide.

Trump’s former national security adviser, retired Lt. Gen. Michael Flynn, himself a former military spy, spoke to the Russian ambassador to the United States in December via telephone in Trump Tower. It was a benign conversation. He knew it was being monitored, as he is a former monitor of such communications. But he mistakenly thought that those who were monitoring him were patriots as he is. They were not.

They violated federal law by revealing in part what Flynn had said, and they did so in a manner to embarrass and infuriate Trump.

Why would they do this? Perhaps because they feared Flynn’s being in the White House, since he knows the power and depth of the deep state. Perhaps to send a message to Trump because he once compared American spies to Nazis. Perhaps because they believe that their judgment of the foreign dangers America faces is superior to the president’s. Perhaps because they hate and fear the outsider in the White House.


The chickens have come home to roost. In our misguided efforts to keep the country safe, we have neglected to keep it free. We have enabled a deep state to become powerful enough to control a powerful president. We have placed so much data and so much power in the hands of unelected, unaccountable, opaque spies that they can use it as they see fit — even to the point of committing federal felonies. Now some have boasted that they can manipulate and thus control the president of the United States by selectively revealing and concealing what they know about anyone, including the president himself.

This is a perilous state of affairs, brought about by the maniacal passion for surveillance spawned under George W. Bush and perfected under Barack Obama — all with utter indifference to the widespread constitutional violations and permanent destruction of personal liberties. This is not the government the Framers gave us. But it is one far more dangerous to human freedom than the one from which they seceded in 1776.

Copyright 2017 Andrew P. Napolitano. Distributed by

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  1. Ivy says:

    Gradually, then suddenly. That describes a type of moral bankruptcy afflicting so much of DC in particular.

  2. unit472 says:

    Very true but when you allow rattlesnakes to live in your yard you can’t give them the same benefit of the doubt you give to a black snake. That is the dilemma large scale Muslim immigration poses. We have allowed several million people with a brutal theology and a violent nature to wander our cities.

    During the World Wars and Cold War we did not allow large scale immigration from enemy nations. In fact, foreign nationals were rounded up, deported or kept under surveillance. If the US operated under today’s rules then Germany could have sent its armies to the US as asylum seekers and we would have allowed those ‘refugees’ the same 2nd amendment rights as native born citizens. How could we have prevailed under such circumstances?

    • Replies: @jacques sheete
    , @jtgw
  3. In our misguided efforts to keep the country safe, we have neglected to keep it free.

    How did you conclude that such efforts were intended to keep the country safe?

  4. @unit472

    Very true but when you allow rattlesnakes to live in your yard you can’t give them the same benefit of the doubt you give to a black snake. That is the dilemma large scale Muslim immigration poses.

    The same could be said for domestic rattlesnakes, such as bankers, militarists, and politicians, no? If not, why not?

    “The adversary is closer to home; it’s the Pentagon bureaucracy…”

    – Donald Rumsfeld on Sept. 10, 2001

  5. Wow, quite an indictment. Should we be thankful our spooks are not as clever as the Mossad or Shin Bet or…God forbid, the SAVAK?

  6. jtgw says:

    Why not adopt a non-interventionist foreign policy instead and stop provoking blowback? That way we wouldn’t need either a police state or a ban on immigration.

    • Replies: @Quartermaster
    , @unit472
  7. @jacques sheete

    Thank you. As if the scum that inevitably rises to the top is capable of good intentions.

  8. Che Guava says:

    While he was president-elect, the spies told him they knew of his alleged misbehaviors — vehemently denied — in a Moscow hotel room.

    Mr. Napolitano, I am not a USA person, and am generally liking your writing.

    How do you know that the first point in your assertion is true?

    The alleged misbehaviours are clearly the crudest form of disinfo.

    They only came into vague shadowy form after Hanoi Hilton John, aka America’s traitor, McCain, shopped the confection around (since one of the places he shopped it to was the FBI, one has to wonder what the origin was, I would guess simply people with Internet troll experience).

    McCain’s new little act of treachery seems to have been post-inauguration, although I may not be accurately remembering the sequence.

    I very much doubt that you have any better idea of the origin of this ‘report’ than I do. If it wasn’t totally ridiculous, there would have been quotes, not just murmurs.

    Was hoping that you would be elevated in the judiciary for the sake of USA people, but the above makes me wonder.

  9. @jtgw

    You’ll still need the ban on immigration.

    • Replies: @jtgw
  10. jtgw says:

    First of all, how are you defining “immigration”? Some people use it as a synonym for “entry”, whether for temporary visits or a permanent stay, while others mean something more specific, like permanent residence or settlement.

    Secondly, don’t forget that immigration bans have costs as well as benefits. A blanket ban on a group of people may exclude those you don’t want, but also those you do want. What we want is for everybody to be able to associate freely with anyone else; we don’t people who don’t want to associate being forced to associate (e.g. public accommodations laws that force private businesses to accommodate those they don’t want to accommodate) nor do we want to prevent people associating that do want to associate (banning foreign students who have been invited to attend privately run university in this country).

    I’ve known several Muslims in my time and they’ve all been decent people that I would not refuse to associate with, so I’m not sure what gives anybody else the right to prevent us associating.

  11. log says: • Website

    So, basically, we’re careening towards civil and perhaps global war because government by force is unmanageable. And we haven’t learned a damned thing from the latest experiment in government by force, so we’re going to repeat the errors once the radioactive dust settles.

    And the reason why we cannot learn a damned thing from the latest experiment in government by force is because nobody can conceive of an alternative to government by force because no alternative can in principle give controlled results – which is another way of saying government by force is the only game in town if one wants predictability.

    Except apparently goverment by force does not deliver predictability, since now we are getting unpredictability. The contradiction, therefore, in government by force, even if denied in words, is being realized in reality before our eyes.

    So maybe – just maybe – we ought to give serious thought to the alternative to government by force, which is self-government. But that would be a religious government with rules like those promulgated by Jesus Christ.

    And his rules don’t let us win, nor keep our property, therefore to retain our stuff and our status vis-a-vis each other we must rely upon government by force, contradictions be damned.

    And the cycle from anarchy to totalitarianism back to anarchy continues, only today with more nuclear weapons. Good going, humanity!

  12. @jtgw

    So you’re saying that freedom of association more or less nullifies borders.

    Libertarians are funny. You must be an academic. Only academics are smart enough to fool themselves this thoroughly.

    Btw, if you can’t figure out that individual anecdotes have no bearing on group averages, you really don’t have much standing around here. I’ve known nice black people. Does that change the fact that blacks are seven times more likely to commit violent crime than whites?

    “Oh,” you say, “but I’m talking about the nice ones.” Ever heard of regression to the mean? Ever notice that many Muslim terrorists are well-educated, second-generation kids of people just like your friends?

    Let Muslims have their own countries. Oh wait, they already do. Feel free to exercise your freedom of association by visiting those countries to your heart’s content.

    Finally, so bans have costs as well. What great benefits are Muslims bringing to our shores that we can’t live without them? I notice that Japan gets along just fine without importing Muslims. But, of course, the Japanese government is impinging on the freedom of association of its citizens. I’m sure that they’re heart-broken to miss out on fanatical energy that Muslims bring to society. Also, let’s not forget that cleaning up the body parts and physical wreckage technically counts as improving GDP, so there’s that.

  13. unit472 says:

    The US had a ‘non interventionist’ foreign policy in the run up to both World Wars. As the world’s largest economy and most powerful nation since the beginning of the 20th century it is not possible for the US to avoid becoming embroiled in the conflicts and rivalries in the rest of the world. To not take a ‘side’ is, in effect, intervening when you hold the balance of power.

    • Replies: @jtgw
  14. @Citizen of a Silly Country

    ” What great benefits are M bringing to our shores that we can’t live without them”

    This is such a profoundly wise, in it’s brevity, brilliant statement, that it should resound from coast to coast.

    Sir I tip my hat to you.

    Authenticjazzman “Mensa” society member since 1973, and pro jazz artist.

  15. jtgw says:
    @Citizen of a Silly Country

    There is no ban on Muslims entering Japan; this idea that Islam is banned in Japan has been making the rounds in alt-right circles, but it’s not actually true. It is difficult for Muslim foreigners to become Japanese citizens, but then it’s difficult for any foreigner to become a Japanese citizen. Japan does have a small Muslim community, though.

    And if you want to talk about the value of anecdotal evidence, maybe start with your exaggerated fear of terrorism. The number of Americans killed in terrorist attacks is dwarfed by any number of other causes. As a proportion of all Muslims, terrorists are a tiny minority. So yes, it’s not clear how much the benefits of making the tiny probability of a terror attack even tinier outweigh the costs of, say, preventing the entry of Muslim employees of American companies, forcing those companies to pass on costs to customers.

    That being said, I like Steve’s idea of immigrant insurance. I don’t think anyone should be allowed to enter unless they have been invited by a citizen sponsor. I think it’s reasonable that the sponsor should be liable for any damages caused by the immigrant that the immigrant cannot cover out of his own funds, so that would in turn create a market for insurance to cover the liabilities of sponsors.

  16. jtgw says:

    Those are pretty debatable statements. For instance, in what way was our Lend Lease program with Britain compatible with our official neutrality between them and Germany? Where’s the non-interventionism in that?

    As for the idea that being powerful means having to become embroiled in the world’s conflicts, that’s also pretty debatable. I don’t see the logical necessity of one leading to the other, for one thing. Presumably the main advantage of being the most powerful nation is that no other nation dare attack you, so all you have to do is sit there; you don’t need to go around making trouble and trying to “contain” other powers. I suppose you think that bossing around other countries makes us more powerful, but it seems to me the opposite is true. Expanding our activities around the globe makes us weaker, not stronger, since we over-extend ourselves and divert resources from domestic growth to militarism and empire.

    I really hate it when people say “an absence of policy is also a policy”. No it isn’t. An absence of policy is an absence of policy. Not acting or not intervening is not the same as acting or intervening.

  17. KenH says:

    People born in foreign countries who are here for benevolent or benign or even evil purposes have the same constitutional protections as those of us born here. That’s because the critical parts of the Constitution that insulate human freedom from the government’s reach protect “persons,” not just citizens. But FISA ignored that.

    I beg to differ. If non-citizens here illegally, or even legally as say, students, have the same rights as citizens then what’s the point of seeking citizenship? To pay exorbitant personal income taxes?

    That opinion is befitting of a liberal activist judge and not an originalist.

    This sounds more like libertarian fundamentalism and wishful thinking than what the the framers intended or believed. If we take the libertarian article of faith that people have the right to live in any nation they wish to its logical conclusion then the white world will be swamped by the non-white world and the libertarian ideology will die since it has yet to gain currency among black Africans, Mestizos, Asians and Muslims.

    • Replies: @jtgw
  18. KenH says:

    Civil liberty protections is one of the few bones I have to pick with Donald Trump. He said Snowden should be executed and seems to worship the police state and the FBI. His CIA director is no friend of the civil liberties enshrined in the Constitution and I don’t anticipate any rollback of the Patriot Act (so called) intrusions into privacy.

  19. jtgw says:

    Have you read Murray Rothbard’s essay “Nations by Consent”? I think you would appreciate it. Rothbard was a radical libertarian all his life and was firmly for open borders most of his career, but in this essay that he wrote shortly before his death he reconsiders the immigration question and addresses some of the concerns you raise.

    • Replies: @KenH
  20. vetran says:
    @Citizen of a Silly Country

    Ever notice that many Muslim terrorists are well-educated, second-generation kids of people just like your friends?

    Indeed, they’re so smart that they managed to topple 3 towers with 2 airplanes, make another airplane to evaporate into a tiny hole in the Pentagon (with Aladin’s genie on their side?), all of this conducted by a caveman in Afghanistan. What a feat!

    Let Muslims have their own countries. Oh wait, they already do. Feel free to exercise your freedom of association by visiting those countries to your heart’s content.

    Luckily with all those US bases and US special forces occupying/roaming the Middle east, I can be assured to eat my kebab in peace and go in the casbah to bargain a carpet without hassle.

  21. “The British system that arguably impelled our secession in 1776 is now here on steroids.”

    To be fair to the British, many of the injustices attributed to George Guelph in the Declaration of Independence had already been worked out in the English Common Law. General Warrants, for example, had been held to be invalid in Entick v Carrington[1765], and things like Habeus Corpus earlier than that. One might reasonably infer that the founding fathers, knowing they were essentially depriving the Crown of it rightful property, streams of income, and subjects, needed to lay it on a bit thick to further make their case.

    It cost the Founding Fathers very little to enshrine these rights in the Constitution, since they had no reasonable expectation that they could completely pick up the mantle of King George, but it was truly a bargain for us in that it took the better part of two centuries for the State to thoroughly corrupt these rights.

  22. @jacques sheete

    haha, it is working as intended 😛 leverage and blackmail material.

    • Replies: @Ivy
  23. mtn cur says:

    Those aren’t chickens coming home to roost, they are flying monkeys.

    • Replies: @Sam J.
  24. Ivy says:
    @Astuteobservor II

    Leverage and Blackmail, being offered Spring Semester in Poli Sci 520, only for well-qualified undergraduates and first year Masters candidates. Ample thesis opportunities and stipends available.

  25. El Dato says:

    Well, it has evidently been coming since the times of the Freeh FBI and the Clinton-era “Crypto Wars” at least. That american eagle is now just another chicken in a chicken farm.

    Now what?

    Up shit creek w/ a paddle and people are talking “immigration”.

  26. KenH says:

    Interesting, but I’m not really surprised. I read some of his last writings in the Rothbard-Rockwell Report which contained salvos by Murray against multiculturalism (which was then in its infancy but gaining steam in the mid 90’s) as well as racial integration between blacks and whites. Also included were statements by Abraham Lincoln and his belief that blacks were inferior to whites and his opposition to social and political equality between the two.

    Ron Paul’s publication from that time sometimes included no holds barred reports of black crime, a fact the media tried to use against him in 2008 to paint him as a “racist” and scare people away.

    • Replies: @jtgw
  27. jtgw says:

    I don’t think Rothbard was against racial integration as long as it was voluntary. Voluntaryism was the foundation of his entire ideology; it was why he opposed the State without compromise. It was straightforward to see immigration controls as interfering in voluntary association between people, but the genius of the article I showed you was that he discovered ways in which the state could use open borders as a way of forcing people to integrate, e.g. if you subsidize migration, as the Soviets did when they encouraged Russians to migrate to the Baltics, or if you impose draconian anti-discrimination and public accommodation laws, as we do.

    The main message I take from “Nations by Consent” is that the nation is a real thing, but only in the minds of individuals who identify with that nation. As long as people voluntarily identify with the nation and voluntarily support it, it has a legitimate basis; but as soon as the state gets involved and regulates who may or may not belong to the nation, then it stops being just a nation but become a nation-state, which is just another kind of State.

    This means that we expect nations to be dynamic entities; over time they may change their character. Nations may appear out of other nations, while other nations may disappear as soon as nobody identifies with it anymore. But the process would be organic; we wouldn’t see forced nationalism or forced multiculturalism.

    • Replies: @KenH
  28. We have no government armed with power capable of contending with human passions unbridled by morality and religion…Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
    – John Adams .

    The fate of the Constitution was sealed many years ago.

  29. KenH says:

    By the tone of the RR report article Rothbard seemed to be taking a cynical view either way. There would be very little racial integration if it wasn’t compulsory, but race relations wouldn’t be as toxic. Familiarity truly does breed contempt.

    However I don’t think the “anarcho-capitalist” model of privatizing every square foot of land is the answer to things although it may sound ok in the abstract. This would allow the 1%, with their vast wealth and self serving interests, to buy up all the land and bring in people who the vast majority of citizens don’t want here.

    No, a people need a state (a monoracial state) and the government of that state should have the consent of the governed so immigration and citizenship policies desired by the people and that benefit the nation (not special interest groups and social engineers) are implemented. This worked pretty well in America up until 1965 and the reason why we were largely monoracial (90% white) and cohesive, whereas today we’re now a multiracial flophouse and constantly on the brink of widespread civil unrest and discord.

    So yes, this nation’s character has definitely changed for the worse which will eventually cause its dissolution and new nations to appear out of it formed primarily along racial and ethnic lines, not ideology or narrow economic interests.

    • Replies: @jtgw
  30. jtgw says:

    And yet the 1% managed to take over the state and use it for their own ends. I think we already tried the solution of concentrating power in a single entity with a monopoly of violence, hoping that somehow democracy would prevent the interests of the wealthy elite from corrupting the system. But as “another fred” noted, the Constitution is just a piece of paper and cannot restrain evil on its own. It may be time to push for a more radical solution. Obviously, the state as a whole will not disappear overnight, but we can do things like e.g. promote decentralization and states’ rights. Trump’s administration has suddenly reminded the left that giving all power to the central government is a bad thing when you’re not in charge; I see a silver lining in e.g. their attempts to use state powers to nullify federal drug prohibition and immigration laws, since it could set a strong precedent for more state nullification, e.g. of federal attempts to force refugee settlement on the states.

    Regarding your fears of the 1% under anarchy, I don’t think a small group of people would be able to maintain that kind of control over a territory as big as the US, without the monopoly of violence that the US government affords. Their members would all be competing with each other, which gives more bargaining power to those they are trying to buy out. Anyway, like I said, we already tried the monoracial state solution and look what happened. It’s not in the ultimate interests of those who hold power to keep the country monoracial or to protect the interests of the majority, as long as those who hold power can use violence to live off the people like parasites.

    • Replies: @KenH
    , @KenH
  31. KenH says:

    And yet the 1% managed to take over the state and use it for their own ends. I think we already tried the solution of concentrating power in a single entity with a monopoly of violence

    As I previously said things were working basically as intended until the 1960’s or so. The governmental form we now languish under is not that which was bequeathed to us by the founders. The central government was supposed to have limited powers and be relatively weak so it could not pose a threat to or tyrannize the citizenry.

  32. KenH says:

    The old WASP ruling elites allowed itself to be overthrown by a highly organized and insanely ethnocentric Jewish minority which led to fundamental changes in our government and society, but I digress.

    I don’t think anarcho-capitalism is a viable solution when it’s only an abstraction with theoretical selling points and a devil we don’t yet know. If it’s tried at all it should be on a very small scale.

    But on second thought there’s anarcho-capitalism in tribal areas of Pakistan, large parts of Afghanistan, Somalia and other parts of Africa. These are areas where the state is too weak or fearful to impose its will or in Pakistan it simply dares not tread. Heck even the mostly black areas of U.S. major cities like Chicago have an underground economy with little police presence.

    These places should be anarcho-capitalistic paradises given the almost complete absence of state interference in the daily lives and activities of these people, but are they really any place you would wish to live?

    • Replies: @jtgw
  33. jtgw says:

    Anarcho-capitalism simply means a society governed according to an ethics of liberty. One of the implications of libertarian ethics is that the state is itself incompatible with liberty. However, if people don’t follow libertarian ethics of their own accord, then you are not going to get an anarcho-capitalist society. For instance, in all those places you listed, what are common beliefs concerning property rights? Do people understand that one has a right to exclusive use of one’s justly acquired property? I doubt it. There’s also the problem that the chaos and statelessness in these places is often the consequence of the collapse of a tyrannical government. This is what happened in Afghanistan after the fall of the Communist government there in the 1970s, and in Somalia in the 1990s.

    I don’t think one has to be unrealistic about the potential for the success of anarcho-capitalism across different cultures and societies. Clearly those cultures that value liberty and property will do better than those that do not. The debate here is whether it is wise, when one already has a culture that values liberty and property, like the American colonists did, to then cede so many powers to a central government and just hope that the government will restrain itself.

    As I’m sure you know, American only had tight immigration restrictions from the end of the 19th century; before then, the states had their own immigration controls, which was the actual intention of the original constitution. Once the power to control immigration was centralized, then it was only a matter of time until pro-immigration forces took over the central government, and at that point the states had no powers to resist. Centralization of power is always a bad thing in the long term, even if in the short term it’s tempting to use it.

    The same could be said for the Constitution itself. The states originally declared their independence as separate, sovereign states, and after independence united themselves under the Articles of Confederation, which provided for a very weak central authority and reserved essentially all powers to the states. But this was politically inconvenient for those who wanted a stronger central authority, and so the Constitution was promulgated, with promises that the stronger central government would restrain itself and only exercise those powers expressly delegated to it. And then look what happened.

    • Agree: anarchyst
  34. Sam J. says:
    @mtn cur

    “flying monkeys”

    Yes flying monkeys,

  35. anarchyst says:

    “Civil Asset forfeiture” is another part of the equation…in the loss of our Constitution and country.
    When it was first proposed, and enacted in the 1980s, I protested vigorously, and was criticized by both family and other for being “soft on crime” and being “soft on drugs”.
    Now that “the chickens have come home to roost”, I look back at my friends and relatives and say “see, I told you so”. Their silence is priceless.

  36. TWS says:

    We have three hundred plus million in this country tens of millions illegally. Only China and India have more people in one country. We need no more people. We need about a one hundred sixty million fewer people. There is nobody we need much less people who are utterly incompatible with our nation.

    I was born in a country with fewer than two hundred million people. I cannot wait for the day we head back to that number.

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