JUDGE NAPOLITANO: A primer on domestic spying

“The Framers … conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.” — Justice Louis Brandeis (1856-1941)

While we were all consumed by impeachment, a pernicious piece of legislation was slowly and silently making its way through Congress. It is a renewal of Section 215 of the Patriot Act.

The Patriot Act of 2001 has three sections that are scheduled to expire on March 15. One of those sections is the infamous 215, which authorizes the federal government to capture without a warrant all records of all people in America held by third parties.

Do we really want the federal government to spy without warrants? How can Congress, which has sworn to preserve, protect and defend the Constitution, legislate such a blatant violation of it? Here is the backstory.

After the Constitution was ratified in 1789, it was soon amended to recognize the existence of natural rights and to keep the government from interfering with them. As Justice Brandeis wrote 140 years afterward, the most comprehensive of those rights was the right to be let alone, which today we call privacy.

To secure that right, the Fourth Amendment was ratified. The purpose of the Fourth Amendment was to prevent the government from utilizing general warrants and to require judicially authorized search warrants issued under narrow circumstances. James Madison, who drafted the Constitution and the Bill of Rights, shared the hatred that colonists-turned-Americans had for general warrants.

A general warrant was a document issued by a secret court in London authorizing the bearer of the document, usually a British soldier or intelligence agent, to search wherever he wished and to seize whatever he found. The applicant for the warrant needed to demonstrate to the court only that the warrant was intended to unearth something that the government wanted. Because these warrants did not specify the object of the search, there was no limit to them.

Hence Madison’s language in the Fourth Amendment preserving privacy but permitting the government to invade it only upon a showing, under oath, of probable cause of crime, and then requiring the warrant to specify in writing the place to be searched or the person or thing to be seized.

After 9/11, in the collective spirit of fear, timidity, and subservience to the presidency, and in utter disregard for its members’ oaths to uphold the Constitution, Congress enacted the Patriot Act. It permits one federal agent to authorize another federal agent to search and seize whatever the latter wishes to look at and capture so long as it is in the possession of third-party financial institutions.

Over the years, the definition of “financial institution” has been radically expanded by both legislation and presidential executive orders so as to include nearly every conceivable entity that has any records about any person in America — from banks to hospitals to lawyers to merchants to credit card issuers to telecoms and computer service providers and even the post office.

At the same time that the Patriot Act was being expanded, the National Security Agency — America’s 60,000-person strong domestic spy apparatus — was not even pretending to follow legislation.

We know from Edward Snowden’s revelations — which have never been disputed by the government — that since 2003, the NSA has captured not only the records of Americans held by third parties but also the records of every keystroke touched by every person in America and every telephone call transmitted over fiber optic cable. That includes every email, text message and piece of data — even what was deleted. This warrantless mass surveillance continues today unabated.

Also unabated and equally unlawful and unconstitutional is the government’s use of cell towers as monitors of movement. Whenever anyone travels with a mobile device in the U.S., the nearest cell tower picks up signals from the mobile device, even turned off. The government, which either owns the cell towers or under Section 215, captures all the data the towers amass, can effectively follow any person with a mobile device in real-time.

How does the government get away with this?

The feds have labored mightily to keep all of these constitutional violations as far from judicial scrutiny as they can. They rightly fear — they know — that all of this violates the Fourth Amendment.

If their nefarious behavior, which we know they have used on the president of the United States and on the Supreme Court, comes under judicial scrutiny, the feds will argue that the Fourth Amendment only pertains to criminal prosecutions and not to domestic spying; thus, they can ignore it when they spy.

They have made up this argument out of thin air. There is neither a hint in the language of the amendment nor a whiff in its history to support that argument.

Has the government lost sight of our birthright? It is life, liberty and the pursuit of happiness — not to mention getting into Heaven. How can we do any of this if the government we have hired to preserve our liberty is surreptitiously destroying it?

Brandeis’ language about being let alone was written in 1928, in a dissent to a Supreme Court opinion that failed to recognize the right to privacy. Today, his dissent is the law of the land, but the feds ignore it. He wrote that there is more to life than owning material goods. There is the fulfillment of spiritual, intellectual and cultural goals and the achievement of intimate aspirations, none of which are the government’s business.

Why do we permit the government to assault our most basic freedoms, under the law or under the table?

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