By Andrew P. Napolitano
While the nation’s political class has been fixated on a potential
government shutdown in Washington this week, the NSA has continued to
spy on all Americans and by its ambiguity and shrewd silence seems to be
acknowledging slowly that the scope of its spying is truly
breathtaking.
The Obama administration is of the view that the NSA can spy on
anyone anywhere. The president believes that federal statutes enable the
secret FISA court to authorize the NSA to capture any information it
desires about any persons without identifying the persons and without a
showing of probable cause of criminal behavior on the part of the
persons to be spied upon. This is the same mindset that the British
government had with respect to the colonists. It, too, believed that
British law permitted a judge in secret in Britain to issue general
warrants to be executed in the colonies at the whim of British agents.
General warrants do not state the name of the place to be searched or
the person or thing to be seized, and they do not have the necessity of
individualized probable cause as their linchpin. They simply authorize
the bearer to search wherever he wishes for whatever he wants. General
warrants were universally condemned by colonial leaders across the
ideological spectrum — from those as radical as Sam Adams to those as
establishment as George Washington, and from those as individualistic as
Thomas Jefferson to those as big-government as Alexander Hamilton. We
know from the literature of the times that the whole purpose of the
Fourth Amendment — with its requirements of individualized probable
cause and specifically identifying the target — is to prohibit general
warrants.
And yet, the FISA court has been issuing general warrants and the NSA executing them since at least 2004.
Last week we learned in a curious colloquy between members of the
Senate Select Intelligence Committee and Gen. Keith Alexander and Deputy
Attorney General James Cole that it is more likely than not that the
FISA court has permitted the NSA to seize not only telephone, Internet
and texting records, but also utility bills, credit card bills, banking
records, social media records and digital images of mail, and that there
is no upper limit on the number of Americans’ records seized or the
nature of those records.
The judges of the FISA court are sworn to secrecy. They can’t even
possess the records of what they have done. There is no case or controversy
before them. There is no one before them to oppose what the NSA seeks.
They don’t listen to challenged testimony. All of this violates the
Constitution because it requires a real case or controversy before the
jurisdiction of federal courts may be invoked. So when a FISA court
judge issues an opinion declaring that NSA agents may spy to their
hearts’ content, such an opinion is meaningless because it did not
emanate out of a case or controversy. It is merely self-serving
rhetoric, unchallenged and untested by the adversarial process. Think
about it: Without an adversary, who will challenge the NSA when it
exceeds the “permission” given by the FISA court or when it spies in
defiance of “permission” denied? Who will know?
For this reason, the FISA court is unconstitutional at best and not
even a court at worst. It consists of federal judges administratively
approving in secret the wishes of the government. By not adjudicating a
dispute, which is all that federal judges can do under the Constitution,
these judges are not performing a judicial function. Rather, they are
performing a clerical or an executive one, neither of which is
contemplated by the Constitution.
Issues of concern to people who live in the west: property rights, water rights, endangered species, livestock grazing, energy production, wilderness and western agriculture. Plus a few items on western history, western literature and the sport of rodeo... Frank DuBois served as the NM Secretary of Agriculture from 1988 to 2003. DuBois is a former legislative assistant to a U.S. Senator, a Deputy Assistant Secretary of Interior, and is the founder of the DuBois Rodeo Scholarship.
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment