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A decision last week about NSA spying by a panel of judges on the United States Court of Appeals in New York City sent shock waves through the government. The court ruled that a section of the Patriot Act that is due to expire at the end of this month and on which the government has relied as a basis for its bulk acquisition of telephone data in the past 14 years does not authorize that acquisition.

This may sound like legal mumbo jumbo, but it goes to the heart of the relationship between the people and their government in a free society. Here is the backstory and the latest.

The Patriot Act is the centerpiece of the federal government’s false claims that by surrendering our personal liberties to it, it can somehow keep us safe. The liberty-for-safety offer has been around for millennia and was poignant at the time of the founding of the American republic.

The Framers addressed it in the Constitution itself, where they recognized the primacy of the right to privacy and insured against its violation by the government by intentionally forcing it to jump through some difficult hoops before it can capture our thoughts, words or private behavior.

Those hoops are the requirement of a search warrant issued by a judge and based on evidence — called probable cause — demonstrating that it is more likely than not that the government will find what it is looking for from the person or place it is targeting. Only then may a judge issue a warrant, which must specifically describe the place to be searched or specifically identify the person or thing to be seized.

None of this is new. It has been at the core of our system of government since the 1790s. It is embodied in the Fourth Amendment, which is at the heart of the Bill of Rights. It is quintessentially American.

The Patriot Act has purported to do away with the search warrant requirement by employing language so intentionally vague that the government can interpret it as it wishes. Add to this the secret venue for this interpretation — the FISA court to which the Patriot Act directs that NSA applications for authority to spy on Americans are to be made — and you have the totalitarian stew we have been force-fed since October 2001.

Because the FISA court meets in secret, Americans did not know that the feds were spying on all of us all the time and relying on their own unnatural reading of words in the Patriot Act to justify it until Edward Snowden spilled the beans on his former employer nearly two years ago.


The feds argued to the secret court that they were entitled to any phone call data they wanted — usually sought by area code or zip code or the customer base of telecom service providers — so long as they claimed to need it to search for communications about terror-related activities, and they claimed they needed EVERYONE’S records, and they claimed the Patriot Act authorized this.

The secret court bought those claims, and — fast-forward to today — the feds now have immediate access to our phone calls in real time. They can turn on our cellphones in our pockets and purses and use them as listening devices without us knowing it, and they have physical access to all telephone carriers’ equipment whenever they wish, which today is 24/7.

Some members of Congress reject this. Foremost among the outraged in the Senate is Kentucky Sen. Rand Paul. It is none of the government’s business, he argues, what we say on our phone calls. If the NSA wants to hear us, let them present probable cause to a judge identifying the person they want to hear and seek a search warrant. Paul’s is a genuine outrage from the only voice among those running for president who is faithful to the Constitution.

Other senators, foremost among them Texas Sen. Ted Cruz, also running for president, are pretending outrage by offering a Band-Aid to replace the Patriot Act called the Freedom Act. The Freedom Act gets the NSA physically out of the telecoms’ offices, but lets them come back in digitally whenever one of these secret FISA courts says so, and the standard for saying so is not probable cause as the Constitution requires. It is whatever the government wants and whenever it wants it.

The so-called Freedom Act would actually legitimize all spying all the time on all of us in ways that the Patriot Act fails to do. It is no protection of privacy; it is no protection of constitutional liberty. It unleashes American spies on innocent Americans in utter disregard of the Fourth Amendment.

Earlier this week, Paul announced that he feels so strongly about the right to be left alone, and takes so seriously his oath to uphold the Constitution, and believes so certainly that our phone calls are none of the government’s business that he plans to filibuster all attempts to permit this to continue. For that alone, he is a hero to the Constitution. Perhaps his friend Cruz will return to his constitutional roots and join him.

How do we know that the Freedom Act is a Band-Aid only? Because the NSA supports it.

Copyright 2015 Andrew P. Napolitano. Distributed by

• Category: Foreign Policy • Tags: Government Surveillance, NSA 
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  1. Hey Judge

    How about the national security act of 1947? Isn’t that where our republic went off the rails long before the so-called Patriot Act?

    “As applied to the United States, Bagehot’s theory suggests that U.S. national security policy is defined by the network of executive officials who manage the departments and agencies responsible for protecting U.S. national security and who, responding to structural incentives embedded in the U.S. political system, operate largely removed from public view and from constitutional constraints”

    Download the pdf @,d.bGg

    A few related thoughts

    Would Obama calling for a court to oversee assassinations be an admission the al-Awalki hit was an extra-judicial murder?

    Would Obama’s task force calling for a “Public Interest Advocate” be an admission constitutionally required Due Process has always been absent in the machinations of the secret FISA court?

    Insofar as Cruz returning to the constitution (if he was ever there at all), that’s just not how the game is played in DC:

    ^ If the left are sheep, the right are fish

  2. Ian56 says:

    NSA Mass Spying has stopped zero terror plots so why do Obama and Congress support it? (Written November 2013)

    The Senate has just voted to continue to fund NSA Mass Surveillance and also to fund a witch hunt on any NSA leakers.

    Keith Alexander has already admitted, in sworn testimony to Congress, that NSA Mass Surveillance has not foiled a single terror plot in 12 years since 9/11.
    So well over $100bn has been spent and not a single terrorist plot has been foiled that could not of been foiled via pre Patriot Act laws, by obtaining a warrant after finding probable cause.

    NSA chief’s admission of misleading numbers adds to Obama administration blunders
    The Obama administration’s credibility on intelligence suffered another blow Wednesday as the chief of the National Security Agency admitted that officials put out numbers that vastly overstated the counterterrorism successes of the government’s warrantless bulk collection of all Americans’ phone records.

    Read more:

    NSA Director Keith Alexander admits he outright lied to Congress about the 54 terror plots.
    He now admits that, at most, only one or two terror plots were foiled by Mass Surveillance.
    The true number is probably MINUS ONE.
    Because of the systems in place and resources diverted to spying on law abiding citizens, the NSA failed to stop Boston.

    So we have to ask the question :-

    If NSA Mass Surveillance does nothing to keep Americans safer, indeed the evidence is that it makes Americans LESS safe, what possible reason could the Senators that voted to continue to waste tens of billions of dollars on a program that has singularly failed to fulfill it’s official purpose?

    The official explanation – counter terrorism, cannot be the reason the Senators voted to continue it, instead of voting to DEFUND it.

    Some possible reasons :-

    Bribery and Corruption
    Some of the Senators will have been bribed with campaign contributions (and/or other inducements) by the private contractors that work for the NSA – contractors like Booz Allen.
    75% of NSA funding and 75% of the staffing, goes to private companies who profit from the Mass Surveillance programs.

    Blackmail and Intimidation
    A significant proportion of the Senators, that voted to continue funding, will have some secrets that they would rather be kept hidden from the public.
    The NSA (with the help of agencies like the CIA, FBI and DHS) could easily obtain at least some of this information and threaten to leak it to the mainstream media, thus wrecking the Senators re-election prospects as a minimum.

    Hoover was well known for keeping detailed surveillance records on every prominent politician and many other prominent people in order to intimidate and/or blackmail them.

    He used the FBI to harass political dissenters and activists, to amass secret files on political leaders,[2] and to collect evidence using illegal methods.[3] Hoover consequently amassed a great deal of power and was in a position to intimidate and threaten sitting Presidents.[4] According to President Harry S. Truman, Hoover transformed the FBI into his private secret police force; Truman stated that “we want no Gestapo or secret police. FBI is tending in that direction. They are dabbling in sex-life scandals and plain blackmail. J. Edgar Hoover would give his right eye to take over, and all congressmen and senators are afraid of him”.

    Why wouldn’t Keith Alexander and/or James Clapper want to amass the sort of power that Hoover enjoyed during his long tenure as head of the FBI?

    We already know, from testimony from Russ Tice (an intelligence whistle blower), that the NSA secretly spied upon Barack Obama when he was campaigning to be the Senator for Illinois in 2004.
    What information might the NSA have on Obama?
    Further details or evidence on this, which has not been released by the mainstream media?

    Disparaging information on Obama, not yet widely known in the public domain, would certainly explain why Obama has not prosecuted, or at the very least fired, both Clapper and Alexander for perjury (multiple counts of lying to Congress).
    Perjuries which they have both now admitted.

    We already know that John Brennan secretly spied upon Barack Obama during his 2008 Presidential campaign (see above link).

    Secretive information held by Brennan on Obama would certainly explain why Obama came to appoint Brennan as his National Security Advisor, Drone Policy and Kill List czar, and later Director of the CIA.
    Brennan is :-
    a known advocate of torture from the Bush regime
    a total failure in his previous CIA roles – See this
    the appointment of Brennan as CIA chief, with his own fleet of drones, despite Brennan’s drone warfare program being an absolute demonstrable failure (for it’s official stated purpose) – See this,
    and this

    Advocates of a Police State and the undermining of democratic processes in America and the West
    There are at least some Congressmen that advocate the further expansion of the Police State and Police State powers.
    Two examples would be John McCain and Lindsey Graham who co-authored the 2011 NDAA Act that codified indefinite detention of American citizens and the effective repeal of Posse Comitatus which now allows the U.S. military to operate on the streets of American cities.

    The principal purpose of the NSA Mass Surveillance is undoubtedly not counter terrorism but to :-
    further expand Police State powers
    to crackdown on any future domestic political dissenters
    to control prominent politicians, senior judges, senior government officials, prominent businessmen and other politically minded prominent people
    to further erode what little remains of a Free Press in America (as opposed to Corporate controlled propaganda, distractions and omissions)
    to intimidate the few real journalists left in America
    to intimidate civil rights activists like the ACLU and EFF

    In short the purpose of the NSA’s Mass Surveillance is to completely undermine democratic processes in America and in the West – the same reason that the Stasi carried out their Mass Surveillance on their own population.

    The Senators that voted to continue funding the Mass Surveillance programs with billions more taxpayer dollars and to launch a witch hunt for any further whistle blowers must of at least started to realize this.

    Any Congressman that votes for the continuation of the NSA Mass Surveillance programs needs to be removed from office as quickly as possible.
    The future of America and the principles of Constitutional governance and a democratic Republic, upon which America was founded, are at stake.

    Update 12/11
    Someone else has the same thoughts as me
    Is the NSA Blackmailing Its Overseers In Washington?

    How NSA Mass Surveillance is intended to be used for blackmail, intimidation and to discredit domestic political opponents


    James Clapper and Booz Allen – a tale of high level corruption


    Keith Alexander has his own reasons for keeping all of the NSA’s Mass Surveillance powers.
    Why wouldn’t he want to be in a position of power that rivals, or perhaps even exceeds, the powers of the President or the Chairman of the Federal Reserve?
    He certainly does not want to be sentenced to 75 years in jail -which is the sentence that could be imposed if he were convicted of his multiple counts of perjury to Congress which carry a maximum penalty of 5 years for each count.

    • Replies: @MarkinLA
  3. MarkinLA says:

    I think you missed one reason.

    I think the government wants everybody to be a paper felon. You know somebody who downloaded too many songs and didn’t pay for them. Make him a felon so he can’t vote and loses many of his rights including being able to own firearms.

    Congress and the state are constantly making everyday transgressions felonies at the behest of corporations or claiming to make us safer such as making it a felony when two old ladies call each other obscenities and make irrational and stupid threats (that everybody knows will never be carried out) over some old coot one is living with and the other used to (this happened to the lady that cuts my hair).

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