April 10, 2014
Last week, National Intelligence
Director Gen. James R. Clapper sent a brief letter to Sen. Ron Wyden, D-Ore., a
member of the Senate Intelligence Committee, in which he admitted that agents
of the National Security Agency (NSA) have been reading innocent Americans’
emails and text messages and listening to digital recordings of their telephone
conversations that have been stored in NSA computers, without warrants obtained
pursuant to the Constitution. That the NSA is doing this is not newsworthy —
Edward Snowden has told the world of this during the past 10 months. What is
newsworthy is that the NSA has admitted this, and those admissions have
far-reaching consequences.
Since the Snowden revelations first
came to light last June, the NSA has steadfastly denied them. Clapper has
denied them. The recently retired head of the NSA, Gen. Keith Alexander, has
denied them. Even President Obama has stated repeatedly words to the effect
that “no one is reading your emails or listening to your phone calls.”
The official NSA line on this has been
that the Foreign Intelligence Surveillance Act (FISA) court has issued general
warrants for huge amounts of metadata only, but not content. Metadata consists
of identifying markers on emails, text messages and telephone calls. These
markers usually identify the computer from which an email or text was sent or
received, and the time and date of the transmission, as well as the location of
each computer. Telephone metadata is similar. It consists of the telephone
numbers used by the callers, the time, date and duration of the call, and the
location of each telephone used in the call.
American telecommunications and
Internet service providers have given this information to the NSA pursuant to
warrants issued by secret FISA court judges. These warrants are profoundly
unconstitutional, as they constitute general warrants. General warrants are not
obtained by presenting probable cause of crime to judges and identifying the
person from whom data is to be seized, as the Constitution requires. Rather,
general warrants authorize a government agent to obtain whatever he wants from
whomever he wants it.
These general warrants came about
through a circuitous route of presidential, congressional and judicial
infidelity to the Constitution during the past 35 years. The standard that the
government must meet to obtain a warrant from a FISA court judge repeatedly has
been lessened from the constitutional requirement of probable cause of crime,
to probable cause of being a foreign agent, to probable cause of being a
foreign person, to probable cause of talking to a foreign person. From this
last category, it was a short jump for NSA lawyers to persuade FISA court
judges that they should sign general warrants for all communications of
everyone in America because the NSA was not accessing the content of these
communications; it was merely storing metadata and then using algorithms to
determine who was talking to whom.
This was all done in secret — so secret
that the president would lie about it; so secret that Congress, which
supposedly authorized it, was unaware of it; and so secret that the FISA court
judges themselves do not have access to their own court records (only the NSA
does).
It was to further this public façade
that Clapper lied to the Senate Intelligence Committee last year when he
replied to a question from Wyden about whether the NSA was collecting massive
amounts of data on hundreds of millions of Americans by saying, “No” and then
adding, “Not wittingly.” The stated caveat in the NSA façade was a claim that
if its agents wanted to review the content of any data the NSA was storing,
they identified that data and sought a warrant for it.
This second round of warrants is as
unconstitutional as the first round because these warrants, too, are based on
NSA whims, not probable cause of crime. Yet, it is this second round of
warrants that Clapper’s letter revealed did not always exist.
Snowden, in an act of great personal
sacrifice and historic moral courage, directly refuted Clapper by telling
reporters that the NSA possessed not just metadata but also content — meaning
the actual emails, text messages and recordings of telephone calls. He later
revealed that the NSA also has the content of the telephone bills, bank
statements, utility bills and credit card bills of everyone in America.
In his letter to Wyden last week,
Clapper not only implicitly acknowledged that Snowden was correct all along,
but also that he, Clapper, lied to and materially misled the Senate
Intelligence Committee, and that the NSA is in fact reading emails and
listening to phone calls without obtaining the second warrant it has been
claiming it obtains.
One wonders whether Obama was duped by
Clapper when he denied all this, or whether he just lied to the American people
as he has done in the past.
One also wonders how the government
could do all this with a straight face. This is the same government that
unsuccessfully prosecuted former New York Yankees pitcher Roger Clemens twice
for lying to a congressional committee about the contents of his urine.
Shouldn’t we expect that Clapper be prosecuted for lying to a congressional
committee about the most massive government plot in U.S. history to violate the
Fourth Amendment? Don’t hold your breath; the president will protect his man.
Yet, Congress could address this
independent of a president who declines to prosecute his fellow liars. Congress
could impeach Clapper, and the president would be powerless to prevent that. If
Congress does that, it would be a great step forward for the rule of law and
fidelity to the Constitution. If Congress does nothing, we can safely conclude
that it is complicit in these constitutional violations.
If Congress will not impeach an officer
of the government when it itself is the victim of his crimes because it fears
the political consequences, does it still believe in the Constitution?
Reprinted
with the author’s permission.
Andrew P. Napolitano [send him mail], a former
judge of the Superior Court of New Jersey, is the senior judicial analyst at
Fox News Channel. Judge Napolitano has written seven books on the U.S.
Constitution. The most recent is Theodore
and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.
To find out more about Judge Napolitano and to read features by other Creators
Syndicate writers and cartoonists, visit creators.com.
Copyright © 2014 Andrew P. Napolitano
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