Judge Andrew Napolitano of FOX News wrote an editorial that appeared on the FOX News website. It was relatively short. Its reasoning is specific. It is an indictment of the Patriot Act and the abuses that have occurred since its passage.
During his [George W. Bush] presidency, Congress enacted the Patriot Act. This legislation permits federal agents to write their own search warrants when those warrants are served on custodians of records — like doctors, lawyers, telecoms, computer servers, banks and even the Post Office.
Such purported statutory authority directly violates the Fourth Amendment to the U.S.
Constitution, which guarantees the right to privacy in our “persons, houses, papers and effects.” That includes just about everything held by the custodians of our records. Privacy is not only a constitutional right protected by the document; it is also a natural right. We possess the right to privacy by virtue of our humanity. Our rights come from within us — whether you believe we are the highest progression of biological forces or the intended creations of an Almighty God — they do not come from the government.
If the terms and meaning of the Constitution could be changed by the secret whims of those in the executive branch into whose hands they have been reposed for safekeeping, of what value are they?
This is not an academic argument. If our rights come from within us, the government cannot take them away, whether by executive fiat, popular legislation or judicial ruling, unless we individually have waived them. If our rights come from the government, then they are not rights, but permission slips.
The terms of the Patriot Act were made public, and those of us who follow the government’s misdeeds could report on them. After all, this is America. We are a democracy. The government is supposed to work for us.
We have the right to know what it is doing in our names as it is doing it, and we have the right to reveal what the government does. Yet, under this law, the feds punished many efforts at revelation. That’s because the Patriot Act prohibits those who receive these agent-written search warrants from telling anyone about them. This violates our constitutionally protected and natural right to free speech. All of this has been publicly known since 2001.
Then, in June 2013, Edward Snowden, the uber-courageous former CIA and NSA official, dropped a still smoldering bombshell of truth upon us when he revealed that the Bush administration had dispatched the NSA to spy on all Americans all the time and the Obama administration had attempted to make the spying appear legal by asking judges to authorize it.
Snowden went on to reveal that the NSA, pursuant to President Obama’s orders and the authorization of these judges meeting in secret (so secret that the judges themselves are not permitted to keep records of their own rulings), was actually capturing and storing the content of all emails, text messages, telephone calls, utility and credit card bills, and bank statements of everyone in America. They did this without a search warrant based on probable cause — a very high level of individualized suspicion — as required by the Constitution.
Snowden revealed that Obama’s lawyers had persuaded these secret judges, without any opposition from lawyers representing the victims of this surveillance, that somehow Congress had authorized this and somehow it was constitutional and somehow it was not un-American to spy on all of us all the time. These judges actually did the unthinkable: They issued what are known as general warrants. General warrants were used against the colonists by the British and are expressly prohibited by the Fourth Amendment. They permit the bearer to search wherever he wishes and seize whatever he finds. That’s what the NSA does to all of us today.
Last week, we learned how deep the disrespect for the Constitution runs in the government and how tortured is the logic that underlies it. In a little-noted speech at Washington and Lee Law School, Gen. Michael Hayden, the former director of both the CIA and the NSA, told us. In a remarkable public confession, he revealed that somehow he received from some source he did not name the authority to reinterpret the Fourth Amendment’s protection of privacy so as to obliterate it. He argued that the line between privacy and unbridled government surveillance is a flexible and movable one, and that he — as the head of the NSA — could move it.
This is an astounding audacity by a former high-ranking government official who swore numerous times to uphold the Constitution. He has claimed powers for himself that are nowhere in the Constitution or federal statues, powers that no president or Congress has claimed, powers that no Supreme Court decision has articulated, powers that are antithetical to the plain meaning and supremacy of the Constitution, powers that any non-secret judge anywhere would deny him.
If the terms and meaning of the Constitution could be changed by the secret whims of those in the executive branch into whose hands they have been reposed for safekeeping, of what value are they? No value. In such a world, our Constitution has become a worthless piece of paper.
At the time of its passage, not much was known about the Patriot Act. It was a hasty response to 9/11 and to the intelligence failures that occurred before and after the attack. The Clinton administration had been diligent in weakening our military and intelligence organizations. The media built one scandal after another regardless of the merit of the incidents. In addition, interservice rivalry prevented sharing of information between agencies purposed for intelligence gathering. The intelligence organs had lost their identity and became politicized…to our detriment.
As with any pendulum, it had swung from one side of effectiveness to the other. The Patriot Act did not maintain the effectiveness of intelligence, it misdirected the aim of intelligence from outward to…inward. And we have all suffered from that change in direction.
A liberal Senator from the North East claims people want high-capacity magazine because, “they are arming against the government.” Apparently, Senator Chris Murphy (D-CT) has never considered why people feel the need to arm themselves against the government. His statement is sufficient reason as it stands. But it is the abuses of government, such as those perpetrated by the Patriot Act, that provides the motivation Senator Murphy fears. Perhaps if he asked that question, “Why?” he would discover another answer and another alternative for his ire.
As we have seen, the senatorial GOP led by Mitch McConnell have no interest opposing the tyrannical acts of government. No, instead of opposing, they support such acts to the detriment of us all.
I have presented Judge Napolitano’s editorial in an attempt to expand its presence across the internet. It’s worth reading and consideration.