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Congress Created a Monster
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Those of us who believe that the Constitution means what it says have been arguing since the late 1970s that congressional efforts to strengthen national security by weakening personal liberty are unconstitutional, un-American and ineffective. The Foreign Intelligence Surveillance Act, which Congress passed in the aftermath of President Richard Nixon’s use of the CIA and the FBI to spy on his political opponents, has unleashed demons that now seem beyond the government’s control and are more pervasive than anything Nixon could have dreamed of.

This realization came to a boiling point last weekend when President Donald Trump accused former President Barack Obama of monitoring his telephone calls during the 2016 presidential election campaign. Can a U.S. president legally spy on a political opponent or any other person in America without any suspicion, probable cause or warrant from a judge? In a word, yes.

Here is the back story.

The president can order the National Security Agency to spy on anyone at any time for any reason, without a warrant. This is profoundly unconstitutional but absolutely lawful because it is expressly authorized by the FISA statute.

All electronic surveillance today, whether ordered by the president or authorized by a court, is done remotely by accessing the computers of every telephone and computer service provider in the United States. The NSA has 24/7/365 access to all the mainframe computers of all the telephone and computer service providers in America.

The service providers are required by law to permit this access and are prohibited by law from complaining about it publicly, challenging it in court or revealing any of its details. In passing these prohibitions, Congress violated the First Amendment, which prohibits it from infringing upon the freedom of speech.

The fruits of electronic surveillance cannot be used in criminal prosecutions but can be shared with the president. If they are revealed publicly, the revelation constitutes computer hacking, a federal crime. Nevertheless, some of what was overheard from telephone conversations between the Russian ambassador to the U.S. and former Lt. Gen. Michael Flynn, Trump’s former national security adviser, was revealed to the public — a revelation that profoundly disturbed the White House and many in the intelligence community and constituted a crime.

The original purpose of FISA was to place the judiciary as an intermediary between the nation’s spies and the foreign agents we all know are among us. The theory was that the NSA would first need to demonstrate to a secret court probable cause that the target of the spying is an agent of a foreign power and this would restrain the NSA from spying on ordinary Americans. This probable cause of foreign agency was a dramatic congressional rejection of the constitutional standard — namely, probable cause of crime — for the issuance of warrants. Foreign agency is not a crime.

This congressional rejection of constitutional norms began the slippery slope in which the foreign agency standard has morphed by legislation and by secret interpretations of the Foreign Intelligence Surveillance Court to probable cause of foreign personhood to probable cause of talking to a foreign person to probable cause of being able to talk to a foreign person to — dropping the probable cause standard altogether — anyone who speaks to anyone else who could speak to a foreign person.

This Orwellian and absurd expansion was developed by spies and approved by judges on the FISA court. The NSA argued that it would be more efficient to spy on everyone in the United States than to isolate bad people, and the court bought that argument.

Hence, FISA warrants do not name particular people or places as their targets as the Constitution requires. Rather, they merely continue in place the previous warrants, which encompass everyone in the country. FISA warrants are general warrants, allowing intelligence agents to listen to whomever they wish and retain whatever they hear. General warrants are expressly prohibited by the Fourth Amendment, which requires that all warrants for all purposes be based on probable cause of crime and particularly describe the person or thing to be seized — e.g., a conversation — or the place to be searched.

Even though the NSA already has the legal, though unconstitutional, authority to capture any phone conversation or computer keystroke it wishes, its 60,000 agents lack the resources to listen to all conversations or read all electronic communications in real time. But it does capture the digital versions of all computer keystrokes made in or to the U.S. and all conversations had within the U.S. or involving someone in the U.S.; it has been doing so since 2005. And it can download any conversation or text or email at will.

That’s why the recent argument that Obama ordered the NSA to obtain a FISA warrant for Trump’s telephone calls and a judge issued a warrant for them is nonsense. The NSA already has a digital version of every call Trump has made or received since 2005. Because the NSA — which now works for Trump — is a part of the Defense Department, it is subject to the orders of the president in his capacity as commander in chief. So if the commander in chief wants something that a military custodian already has or can create — such as a transcript of an opponent’s conversations with political strategists during a presidential campaign — why would he bother getting a warrant? He wouldn’t.

All of this leads to information overload — so much material that the communications of evil people are safely hidden in with the mountain of data from the rest of us. The NSA captures the digital equivalent — if printed — of 27 times the contents of the Library of Congress every year.

All of this also leads to the monstrous power of the NSA to manipulate, torment and control the president by selectively concealing and selectively revealing data to him. The Constitution does not entrust such power to anyone in government. But Congress has given it.


All of this also substantially impairs a fundamental personal liberty, the right to be left alone — a right for which we seceded from Great Britain, a right guaranteed by the Fourth Amendment and a right for which we fought wars against tyrants who we feared would take it from us.

Yet after we won those wars, we permitted our elected representatives to crush that right. Those faithless representatives have created a monster that has now turned on us.

Copyright 2017 Andrew P. Napolitano. Distributed by


• Category: Foreign Policy • Tags: Government Surveillance 
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  1. MEexpert says:

    Judge, as you say, all this is unconstitutional, why can’t some one do anything about it? What happened to ACLU, the protector of our civil liberties? Why hasn’t Supreme Court ruled on it?

    • Replies: @gustafus
  2. gustafus says:

    Total surveillance is necessary when you are surrounded by enemies… BINGO

    THIS IS WHY MASS MIGRATION HAS BEEN FORCED ON US. So we would beg for the police state necessary to our survival. BUG MY TELEPHONE PLEASE>

    the Deep State miscalculated AGAIN….. Trump upended the “intel” community… so necessary to our survival once they opened the flood gates to our enemies.

    Have the lights gone on yet?

    Absent millions of Somali’s, Syrians, Iranians, Hondurans and El Salvadorean gangs.. .

    we don’t need total surveillance of every conversation….. HELLO, anybody home yet?

  3. gustafus says:

    the ACLU? …really? They are there to be sure you and I don’t infringe on the rights of the invading armies of Muslims and El Salvadorean gangs.

    Next?…. the Supremes….. cherry picked to be sure we are fitted to our collars.

    Trump is the gift that keeps on giving….. by sending the INTEL agencies to the dentist… he frees up the discussion of just how many enemies of America can we sustain….. without a total police state.

    Have the lights gone on yet?

  4. eD says:

    “This is profoundly unconstitutional but absolutely lawful because it is expressly authorized by the FISA statute.”

    This is a nitpick, but since the Constitution is itself a law, if something is unconstitutional, it is also by definition illegal. The principle of judicial review is based on this.

    I understand what the argument is supposed to be, so this is a matter of wording. The argument is that Congress passed a law enabling the executive branch to conduct this surveillance, but since the surveillance violates at least the Fifth Amendment, that law is unconstitutional, but the surveillance is legal since it is being conducted under the unconstitutional law. Now my head hurts. An unconstitutional law should be null and void.

    There is a practical effect, in that though the Supreme Court claims the ability to strike down federal laws as unconstitutional, in practice it rarely does so. Congress in fact has and has used a number of tools to reign in the Supreme Court, such impeachment, altering the number of justices, to changing the rules on jurisdiction, and constitutional amendments. They also fund the judicial branch. So the Supreme Court would prefer to avoid ruling on the constitutionality of the law, and if it moves against this, claim that the federal executive violated the law.

    • Replies: @MEexpert
  5. duffer says:

    Us average Americans in the forgotten areas know that money corrupted all that was not already corrupted in Washington and in state capitals. Our elected representatives have very little incentive to represent the will of the people when they are too busy lining their own pockets and plotting the next power move financed by shady donors. I wish that I could be more optimistic about the republic, but that sentiment has been fading even with promises to drain the swamp.

  6. alexander says:

    You are absolutely right ,eD.

    “An unconstitutional law should be null and void.”

    Our legislative branch is SUPPOSED to be fully aware of the limits our constitution sets down, to avoid the potentiality of a tyranny usurping our republic.

    Only a thoroughly corrupt legislative branch passes laws they know are unconstitutional.

    When our lawmakers do pass a bill into law that is glaringly unconstitutional there should be an emergency challenge to it…built within the system….like a kind of “legal sequestering”…and it should go right to the Supreme Court, no stopping ……for a ruling.

    One of the tactics a usurping tyranny can use….is to stymie the case ever GETTING to the Supreme Court .. Thus allowing the absence of a ruling to function as an extended permission to engage in criminal activity.

    The argument being that we can do it (and will do it) until the Supreme Court says “No you cannot.”

    Its clever , its sneaky , but its wrong.

    • Replies: @Ace
  7. TheJester says:

    The discussion about Trump’s claim that the NSA monitored his communications is missing something important.

    The CIA has developed its own “mini-NSA” with the ability to monitor and hack communications. From its inception, the CIA also has had a reputation as a renegade government agency that flouts domestic and international law almost as if this was the founding intent. Indeed, the CIA often funds its illegal “off book” operations through illegal gun running and drug dealing (for starters does anyone remember the Kennedy assassination in the 1960s or the Iran-Contra scandal in the 1980s?).

    Given the rabid relationship between John Brennan (a political hack and Hussein Obama’s last Director of the CIA) and Donald Trump, there is little question in my mind that Brennan “carried the water” for Obama in his ongoing quest to sabotage the incoming Trump administration. Yes, guilt by association enlightened by incidents running across decades in which presidents successfully used the CIA for “black” operations against political opponents and other citizens of the United States.

  8. MEexpert says:

    An unconstitutional law should be null and void.

    I think somebody has to challenge the unconstitutional law in the court before Supreme Court, if it reaches there, can act on it.

  9. All totalitarian regimes and systems devote disproportionately larger efforts and resources to monitoring and punishing internal dissent than they devote to defending against or to attacking external enemies.

    This is precisely the system under whose increasingly totalitarian power we Americans increasingly submit – with nary any empathy, sympathy, succor, or help from members of the Transnational Globali$t $ellout E$tabli$hment Elite who run and profit colossally from the rigged system.

    Invade The World fights no genuine existential threat external enemies – it merely enriches the $ellout E$tabli$hment Elite; while Invite The World provides that Elite with a perfect means of displacing and dispossessing – punishing – us native-born Americans with the “creedal nation” mantra that throws us out of work in favor of immensely profitable Imported Cheap Third World Scab Labor. Internal dissent against the “creedal nation”/Invite The World mantra is now routinely punished.

  10. Svigor says:

    From its inception, the CIA also has had a reputation as a renegade government agency that flouts domestic and international law almost as if this was the founding intent. Indeed, the CIA often funds its illegal “off book” operations through illegal gun running and drug dealing (for starters does anyone remember the Kennedy assassination in the 1960s or the Iran-Contra scandal in the 1980s?).

    This paragraph goes from bad to worse. The idea that the CIA ignores the law as a matter of course smells fishy, but then you seal the deal with a pile of fish guts, the urban myth of CIA drug dealing.

    To my knowledge, there has never been any real evidence of this. People just leap from “the CIA does business with drug dealers,” to “the CIA runs drugs!” There’s a big difference between using drug dealers as informants, and even shielding them from investigation or prosecution, and being actual participants in a drug-smuggling organization.

    If the CIA routinely runs drugs, where are the arrests? You can bet your ass that there are DEA/FBI guys who would love to arrest CIA guys for drug-running.

    All I’m saying is, I would like to see some hard evidence that the CIA runs drugs. Surely so massive a conspiracy will have left behind hard evidence by now.

    • Replies: @Ace
  11. Svigor says:

    Congress Created a Monster

    I came to the thread expecting to read about the inferior federal courts.

  12. Ace says:

    For diversion, we need to watch closely as the Congress and the Executive collude to enact a law on health care for which there is no constitutional authority. There is no power enumerated in Art. I, Sect. 8 pertaining to health care. Maybe it’s part of Congress’s authority to provide for bankruptcy, sort of a health bankruptcy perhaps.

    Blather about the General Welfare and the Spending Clause is just that: Pseudo-sophisticate flapdoodle to evade inconvenient provisions of the Constitution that are as plain as the nose on your face.

    However, don’t expect to see this disrupt any of the earnest discussions and learned elucidations of how the federal government is going to replace Obamacare.

    • Replies: @alexander
  13. Ace says:

    Bravo. That the CIA ran drugs out of Laos is holy writ for a lot of simpletons.

    There were a lot of Air America flights out of Laos, as well as other military flights out of Vietnam to Japan, Korea, and the U.S. I’m sure plenty of troops and CIA people availed themselves of entrepreneurial “opportunities” in the course of conducting operations where observing customs formalities was not the highest priority. Similarly, it appears that Bobby Seale may have found space on return flights that could be used for cargo of his choosing.

    None of this is proof of organized, industrial-scale, officially-sanctioned CIA drug trafficking.

    OT. For the heck of it, let’s not forget about Ambrose Evans-Pritchard’s book wherein he recounted how Jerry Parks used to make trips to Mena, Arkansas for Vince Foster. His wife once looked in the trunk of Parks’s car and found it full of $100 bills. Vince the bag man for Bill?

  14. Svigor says:

    Bravo. That the CIA ran drugs out of Laos is holy writ for a lot of simpletons.

    I could overlook that, if that’s all it was. Laos was a long time ago, in a country far, far away. But the assumption seems to be that the CIA just runs drugs all the time, everywhere, right up to the present. It seems rather childish to me. FFS, these people come out of middle class families and a university system that rewards conformity over all else, then the CIA gets hold of them and suddenly they’re Pablo Escobar?

  15. alexander says:


    The fatal flaw of Obamacare in its final iteration, is that it functions as a form of taxation without representation.

    Citizens are now forced , under law ,to pay insurance companies without any regard for what the insurance companies ought to charge, or how much of a profit they should be taking from us.

    The law does nothing but underwrite the ability of insurance companies to gouge the taxpayer if they so choose .

    It is quite close to a form of extortion.

    If there was true representation for the “tax” of Obamacare, all insurance companies would be restricted by law in the fees they charge, no less equally then the citizen who is forced to pay them.

    The winsome “hope” of Obamacare was that the alleged competition between insurance carriers would keep the prices down.

    The problem is..there are no LAWS to restrict all of them from jacking up the prices to whatever they want them to be.

    Not one citizen in our country is allowed to say..”.Sorry ,you are ripping me off and I am outta here…I will just pay the doctor myself.”

    Nope, ….gotta pay….no matter how deep they might gouge you.

    Its not quite right , Ace.

  16. Alden says:

    The “CIA is a drug dealer” is an urban myth designed to cover up the fact that the real drug problems and attendant crime are black problems.

    All black disfunction, crime, welfare dependency etc are caused by Whity you know.

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