Congress defied the plain meaning of the Fourth Amendment when it said data gathered by warrantless surveillance under the Foreign Intelligence Surveillance Act could be used by the F.B.I. for prosecution purposes, writes Andrew P. Napolitano.
Justice Louis Brandeis in 1916. (Harris & Ewing /United States Library of Congress/Wikimedia Commons/Public Domain)
By Andrew P. Napolitano
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. … They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They 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 D. Brandeis (1856-1941)
When the Bill of Rights was being crafted in the House of Representatives, it was left to James Madison to articulate the values that would provide an insulation between government negating freedom and the inalienable rights of all persons.
The right to worship freely, the freedom of speech and of the press and basic fairness from the government were relatively easy to reduce to writing.
Even the catch-all Ninth Amendment, which recognized the existence of natural human rights, drew broad support.
The drafting occurred in a testy environment. The Federalists — the big government folks — controlled the Congress, the White House and the courts. Over Madison’s strenuous objections, his own party in Congress enacted the First Bank of the United States — a precursor to the current Federal Reserve.
This so irritated and terrified the Anti-Federalists — the small government folks — that some state legislatures began to make noises about leaving the federal government that they had just created.
It is interesting that to the Founders of the country and to the Framers of the Constitution, the idea of secession was neither novel nor controversial; and it was not then racial, since it came from New England.
To temper this talk of secession, the Congress turned to Madison, who, after the creation of the Bank, had become an Anti-Federalist, joining the party of his friend and neighbor, Thomas Jefferson. His task was to craft a bill of restraints on the new federal government, focusing primarily on personal freedom.
Madison shared the colonial hatred of British agents and soldiers rummaging through colonial belongings in private homes, looking for whatever the government sought. The authority for these intrusions consisted of general warrants that were issued by a secret court in London, a process which Madison condemned.
General warrants permitted the bearer to search wherever he wished and seize whatever he found. In the new Constitution, ratified in 1788, there was no affirmative authorization for general warrants — just as there was no affirmative authorization for a government bank — but there was also no prohibition.
By crafting the bill of restraints as a bill of rights, and by recognizing the preexistence of these rights, Madison’s Bill of Rights was quickly ratified.
The most unique of these rights was the right to be left alone. In Madison’s day, privacy could only be violated by government using force, intimidation or deception.
Today, of course, privacy is violated by government stealth; by federal agents hacking into computers or using software that gains them access without hacking.
And they do this in violation of the Fourth Amendment, which prohibits general warrants by requiring judicial warrants for all surveillance, based on probable cause of crime, sworn to under oath and specifically describing the places to be searched or the persons or things to be seized.
Congress Enacts FISA
Sam Ervin on right, as chair of the Senate Watergate Committee alongside Howard Baker, center, and Fred Thompson, left, 1973. (U.S. Senate, CC BY-SA 3.0, Wikimedia Commons)
After the Watergate fiasco [and revelations of the Church Committee intelligence abuses], Congress enacted the Foreign Intelligence Surveillance Act in 1978, which established a secret court in Washington, not unlike the London court Madison condemned in the pre-revolutionary days.
The FISA court issues secret warrants allowing spying on Americans and foreigners in the U.S.
In 2008, Congress added Section 702 to FISA permitting warrantless surveillance of foreign persons who communicate with Americans.
The FISA court interpreted 702 to permit warrantless surveillance of Americans to whom foreign persons had spoken, out to the sixth degree. Thus, if you call or email a hotel in Rome to book a room, you are subject to warrantless surveillance under 702.
If you call your mom, she is subject. If she calls her sister, your aunt is subject to warrantless surveillance, and so forth to the sixth degree. Behold the monstrosity that FISA has wrought.
Can the data gathered by this warrantless surveillance be used by the F.B.I. for prosecution purposes, as an end run around the Fourth Amendment? Congress said yes.
That’s the American heresy, as it directly defies the history, values and plain meaning of the Fourth Amendment. Sec. 702 expires at the end of this month.
Justice Louis Brandeis gave us the most celebrated articulation of privacy in Supreme Court history in 1928. It was in a dissent — arguably the most famous dissent in Supreme Court history — which involved warrantless wiretapping of which the Supreme Court then approved.
Two generations later, his dissent was embraced by the majority, and the court ruled that all planned surveillance constitutes a search and thus requires search warrants.
But the court has never ruled on the constitutionality of 702 because of the secrecy that surrounds it. In an effort to placate libertarians and progressives in Congress who oppose the extension of 702, the feds recently offered an amendment to it.
The wording of the amendment was secret, the offering was done in secret, and its rejection by the FISA court was in secret.
What kind of democracy is this?
We have a so-called democracy that rejects Brandeis’ recognition that the Fourth Amendment was written to protect more than our “persons, houses, papers, and effects.”
It was written to protect our beliefs, thoughts, emotions and sensations from the government’s insatiable appetite to know more about us than we know about it.
I am surprised that the president now supports 702, as the Obama administration used this tool on him personally when he was a private citizen. But the world must look very different when on the inside looking out than it did when on the outside looking in.
Beware the American heresy as it undermines the core of that for which the Constitution was written.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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