Liberty in Shambles

The slippery slope began

by Andrew P. Napolitano

When British soldiers were roaming the American countryside in the 1760s with lawful search warrants with which they had authorized themselves to enter the private homes of colonists in order to search for government-issued stamps, Thomas Paine wrote, "These are the times that try men's souls." The soul-searching became a revolution in thinking about the relationship of government to individuals. That thinking led to casting off a king and writing a Constitution.

What offended the colonists when the soldiers came legally knocking was the violation of their natural right to privacy, their right to be left alone. We all have the need and right to be left alone. We all know that we function more fully as human beings when no authority figure monitors us or compels us to ask for a permission slip. This right comes from within us, not from the government.

Thomas Jefferson made the case for natural rights in the Declaration of Independence ("endowed by their Creator with certain inalienable rights"). The Bill of Rights was added to the Constitution to reduce to writing the guarantees of personal liberty. ("Congress shall make no law abridging the freedom of ... religion ... speech ... press ... assembly..." "No person shall ... be deprived of life, liberty, or property, without due process of law..." "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.")

And, of course, to prevent the recurrence of soldier-written search warrants and the government dragnets and fishing expeditions they wrought, the Constitution mandates that only judges may issue search warrants, and they may do so only on the basis of probable cause of crime, and the warrants must "particularly describ(e) the place to be searched, and the persons or things to be seized."

Last week, we discovered that the government has persuaded judges to issue search warrants not on the constitutionally mandated basis, but because it would be easier for the feds to catch terrorists if they had a record of our phone calls and our emails and texts. How did that happen?

In response to the practice of President Richard Nixon of dispatching FBI and CIA agents to wiretap his adversaries under the guise of looking for foreign subversives, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. It prohibited all domestic surveillance in the U.S., except if authorized by a judge based on probable cause of crime, or if authorized by a judge of the newly created and super-secret FISA court. That court was empowered to issue warrants based not on probable cause of crime, but on probable cause of the target being an agent of a foreign power.

The slippery slope began.

Soon the feds made thousands of applications for search warrants to this secret court every year; and 99 percent of them were granted. The court is so secret that the judges who sit on it are not permitted to keep records of their decisions. Notwithstanding the ease with which the feds got what they wanted from the FISA court, Congress lowered the standard again from probable cause of being an agent of a foreign power to probable cause of being a foreign person.

After 9/11, Congress enacted the Patriot Act. This permitted federal agents to write their own search warrants, as if to mimic the British soldiers in the 1760s. It was amended to permit the feds to go to the FISA court and get a search warrant for the electronic records of any American who might communicate with a foreign person.

In 30 years, from 1979 to 2009, the legal standard for searching and seizing private communications – the bar that the Constitution requires the government to meet – was lowered by Congress from probable cause of crime to probable cause of being an agent of a foreign power to probable cause of being a foreign person to probable cause of communicating with a foreign person. Congress made all these changes, notwithstanding the oath that each member of Congress took to uphold the Constitution. It is obvious that the present standard, probable cause of communicating with a foreign person, bears no rational or lawful resemblance to the constitutionally mandated standard: probable cause of crime.

Now we know that the feds have seized the telephone records of more than 100 million Americans and the email and texting records of nearly everyone in the U.S. for a few years. They have obtained this under the laws that permit them to do so. These laws – just like the ones that let British soldiers write their own search warrants – were validly enacted, but they are profoundly unconstitutional. They are unconstitutional because they purport to change the clear and direct language in the Constitution, and Congress is not authorized to make those changes.

These laws undermine the reasons the Constitution was written, one of which was to guarantee the freedom to exercise one's natural rights. These laws directly contradict the core American value that our rights come from our humanity and may not be legislated away – not by a vote of Congress, not by the consensus of our neighbors, not even by agreement of all Americans but one.

The government says we should trust it. Who in his right mind would do so after this? President Obama says the feds have your phone records but are not listening to your calls and will not read your emails. Who would believe him? James Clapper, the director of national intelligence, testified that the feds were not gathering vast data on Americans. Who would trust him? The NSA says that Congress knew about all this, but its members were prohibited from telling the American people. What kind of a democracy is that?

The modern-day British soldiers – our federal agents – are not going from house to house; they are going from phone to phone and from computer to computer, enabling them to penetrate every aspect of our lives. If anything violates the lessons of our history, the essence of our values and the letter of the Constitution, it is this.