The Unz Review: An Alternative Media Selection
A Collection of Interesting, Important, and Controversial Perspectives Largely Excluded from the American Mainstream Media
 BlogviewAndrew Napolitano Archive
The Spies Who Ruin Us
🔊 Listen RSS
Email This Page to Someone

 Remember My Information



=>

Bookmark Toggle AllToCAdd to LibraryRemove from Library • BShow CommentNext New CommentNext New ReplyRead More
ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
AgreeDisagreeThanksLOLTroll
These buttons register your public Agreement, Disagreement, Thanks, LOL, or Troll with the selected comment. They are ONLY available to recent, frequent commenters who have saved their Name+Email using the 'Remember My Information' checkbox, and may also ONLY be used three times during any eight hour period.
Ignore Commenter Follow Commenter
Search Text Case Sensitive  Exact Words  Include Comments
List of Bookmarks

In an effort to draw attention away from the intelligence failures that permitted the attacks of 9/11 and create the impression that it was doing something — anything — to avoid a repeat, the federal government tampered seriously with freedoms expressly guaranteed in the Constitution. Its principal target was the right to privacy, which is protected in the Fourth Amendment.

At President George W. Bush’s urging, Congress passed the Patriot Act in October 2001. This 315-page statute passed the House of Representatives with no debate, and there was very limited debate in the Senate. I have asked many members of Congress over the years whether they read this bill before they voted upon it, and I have yet to find a member who did. In the House, that would have been impossible; the bill was made available to representatives only 15 minutes prior to their vote.

This law permits FBI agents to write their own search warrants for business records, and it has been used to induce the Foreign Intelligence Surveillance Court to issue warrants on a made-up basis to read emails and listen to telephone calls in real time. The members of Congress who voted for it were largely unaware of the liberties they were sacrificing.

The personal liberties that Congress surrendered have been a necessary bulwark against tyranny — the constitutional requirement of warrants as a precondition to searching homes and records, with warrants based on probable cause and specifically describing the place to be searched and the person or thing to be seized.

When Edward Snowden revealed the nature and extent of the domestic spying that the government unleashed upon us post-9/11 and made us all aware of its use of the Patriot Act to do so, the authors of the Patriot Act expressed outrage and anger.

What was the government doing?

The government was secretly gathering data on all of us and using warrants that were not based on probable cause and that did not specifically describe the place to be searched or the person or thing to be seized. When members of Congress realized that they, too, were being spied upon, the outrage grew. That outrage and anger metastasized into a new law enacted earlier this year, called the USA Freedom Act, which took effect this week. That law, its supporters have argued, will tame the National Security Agency into constitutional compliance and keep its 60,000 agents and contractors out of our private affairs. In fact, it is now worse.

The new law permitted the expiration of Section 215 of the Patriot Act — the section used by the NSA to justify its collection of undifferentiated bulk data about everyone. But it also requires the telecoms and Internet service providers to retain their records for five years, and it gives the NSA instant access to those records whenever it needs them.

How can the NSA get instant access to your emails and phone calls?

ORDER IT NOW

Quite easily. Both the Patriot Act and the USA Freedom Act unconstitutionally do away with the probable cause requirement for warrants. Those two laws permit the Foreign Intelligence Surveillance Court to issue warrants based on the standard of “governmental needs” rather than probable cause. This is a profoundly unconstitutional standard, and one that has resulted in spying on all people all the time.

In reality, “governmental needs” is no standard whatsoever, as the government will always claim that it needs what it wants. “Governmental needs” is the hateful standard that was used by the British government when it secretly obtained warrants to enter the homes of the colonists. This provoked the Revolution and produced the Fourth Amendment.

Though Section 215 of the Patriot Act has expired, the NSA’s other authorities to spy have not. The propaganda that NSA computers have been shut down is false. Its computers are still in the telecom and Internet service providers’ facilities and are operated by NSA agents remotely.

Nevertheless, Section 702 of the Foreign Intelligence Surveillance Act and an October 2001 executive order by President Bush are still valid, and both bypass the Constitution and continue to permit mass collection of bulk data. Section 702 permits warrantless surveillance on Americans who speak with foreigners, and the NSA has persuaded the FISA court to issue warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses everyone in the United States.

The Bush executive order was given to all military intelligence agencies — of which the NSA is but one. It instructed the military to intercept the telephone calls of anyone in America it wishes, without seeking any warrants.
Does all this unconstitutional spying — whether pursuant to the Patriot Act, the USA Freedom Act or an old presidential executive order — keep us safe? It certainly does not keep our liberties safe. It produces too much material for the government to evaluate. The recent Paris killers communicated with one another using ordinary cellphones and emails. Yet the French government, whose legal authority to spy is broader than our government’s, missed them. And the NSA, which spies on the French government, missed them.

The Fourth Amendment has numerous virtues, but foremost among them is a double-sided coin. One side is the requirement of individualized probable cause. When followed, that prevents the government from using general warrants (search wherever you want, and seize whatever you find), the hallmark of totalitarian governments. By confining the government’s authority to search only to those cases about which it has suspicion, the other side of that coin forces the government to focus on the bad guys.

When it does that, the government will be far likelier to stop them than when it gathers all it can about everyone.

Copyright 2015 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Foreign Policy • Tags: Government Surveillance, Patriot Act 
Hide 8 CommentsLeave a Comment
Commenters to Ignore...to FollowEndorsed Only
Trim Comments?
    []
  1. The Patriot Act–like so much else that emerges from the Parliament of Whores/Knesset West–is a bunch of shit.

  2. Rehmat says:

    On November 20, 2015, America’s most celebrated spy/traitor, Jonathon Pollard, was released after serving 30 years in jail. His release was celebrated both in Israel and its US colony.

    Israeli prime minister Benjamin Netanyahu called it a “dream come true”.

    “As someone who raised Jonathan’s case for years with successive American presidents, I had long hoped this day would come,” said Netanyahu (here and here).

    Pollard’s ex-wife said she always thought Pollard was innocent, and was persecuted because of his religion.

    Pollard, former Naval intelligence analyst, was convicted and sentenced for life in 1985 for working as Israeli spy for which he was paid $2,500/month and over $50,000 as out-of-pocket expense during his espionage career according to court records. But then he started showing his Shylock nature. He threatened his Israeli handler inside Israeli embassy in Washington, to pay an additional $250,000 for his treason against his motherland (USA), or he would sell some the US secret documents to Russia, Apartheid South Africa, Australia, Pakistan, and some Middle Eastern countries. That’s when someone blew whistle on Pollard.

    Netanyahu who awarded Pollard Israeli citizenship a decade ago, has promised a hero’s welcome to Pollard once he is allowed to migrate to Israel. Several roads and parks have been named in Pollard’s honor in Israel………..

    http://rehmat1.com/2015/12/02/pollard-the-good-and-bad-traitors/

    • Replies: @Orville H. Larson
  3. jjc says:

    Every tool necessary to prevent the 9-11 attacks was already held by the Feds, and the failure to prevent them has never been explained. It was the subsequent anthrax letters which created the fear climate enabling the passage of the Patriot Act, another unexplained and poorly investigated crime.

    • Agree: TomSchmidt
  4. The Patriot Act is pure treason. The Washington politicians who authored and authorized it should be hanged. Instead they are re-elected. 9/11 (a false flag attack) changed everything alright. That’s the day our Republic died after a very long illness.

  5. Svigor says:

    Pollard’s ex-wife said she always thought Pollard was innocent, and was persecuted because of his religion.

    It’s great when Jews do this – make transparently false accusations of ANTISEMITISM!!! to cover up their fairly well-documented perfidy. Debases the coinage without doing them any good.

  6. @Rehmat

    Piss on Pollard, and piss on NuttyYahoo.

  7. Our Dear Rulers’ Police-Surveillance-Security apparati form but one evil force in today’s war on our constitutional rights and liberties.

    One other evil force – ordinary people informing upon and denouncing, often Red Guards’ style gang-denouncing, their own countrymen – was captured by author Joyce Carol Oates: “Tragic pessimist George Orwell could not have foreseen that individuals would give up their freedom to be punitive Big Brother themselves.”

    You may judge which one of those two forces is the greater menace to our rights and liberties. In tandem those two forces are the gravest threat to what’s left of what used to be our country, because they enable the powerful to impose at whim upon us all the other evils that they’ve been imposing upon us, that they continue to impose upon us, and that they brazenly announce they intend to impose further upon us.

    In all of the this the Left-lib-progs and so-called “Social Justice Warriors” – all those who regard themselves as our moral superiors – are blind to their acting as nothing more than the useful idiots of the powerful.

Current Commenter
says:

Leave a Reply - Comments on articles more than two weeks old will be judged much more strictly on quality and tone


 Remember My InformationWhy?
 Email Replies to my Comment
Submitted comments have been licensed to The Unz Review and may be republished elsewhere at the sole discretion of the latter
Subscribe to This Comment Thread via RSS Subscribe to All Andrew Napolitano Comments via RSS
PastClassics
The JFK Assassination and the 9/11 Attacks?
The “war hero” candidate buried information about POWs left behind in Vietnam.