- - Thursday, June 27, 2013

Which is more dangerous to personal liberty in a free society: a renegade who tells an inconvenient truth about government lawbreaking, or government officials who lie about what the renegade revealed? That is the core issue in the great public debate this summer, as Americans come to the realization that their government has concocted a system of laws violative of the natural law, profoundly repugnant to the Constitution and shrouded in secrecy.

The liberty of which I write is the right to privacy: the right to be left alone. The framers jealously and zealously guarded this right by imposing upon government agents intentionally onerous burdens before letting them invade it. They did so in the Fourth Amendment, using language that permits the government to invade that right only in the narrowest of circumstances.

The linchpin of those circumstances is “probable cause” of evidence of crime in “the place to be searched, and the persons or things to be seized.” If the government cannot tell a judge specifically what evidence of crime it is looking for and precisely from whom, a judge may not issue a search warrant, and privacy — the natural human yearning that comes from within all of us — will remain where it naturally resides: outside the government’s reach.

Congress is the chief culprit here because it has enacted laws that have lowered the constitutional bar that federal agents must meet in order for judges to issue search warrants. It has commanded that this be done in secret.


And I mean secret.

The judges of the Foreign Intelligence Surveillance Act (FISA) Court — the court empowered by Congress to issue search warrants on far less than probable cause, and without describing the places to be searched or the persons or things to be seized — are not permitted to retain any records of their work. They cannot use their own writing materials or carry BlackBerrys or iPhones in their own courtrooms, chambers or conference rooms. They cannot retain copies of any documents they have signed. Only National Security Agency staffers can keep these records.

Indeed, when Edward J. Snowden revealed a copy of an order signed by FISA Court Judge Roger Vinson — directing Verizon to turn over phone records of all of its 113,000,000 U.S. customers in direct and profound violation of the individualized probable cause commanded by the Constitution — Judge Vinson himself did not have a copy of that order. This is truly the only court in the country in which the judges keep no records of their rulings.

At the same time that Judge Vinson signed that order, NSA staffers, in compliance with their statutory obligations, told select members of Congress about it, and they, too, were sworn to secrecy. Sen. Ron Wyden, Oregon Democrat, was so troubled when he learned this — a terrible truth that he agreed not to reveal — that he mused aloud that the Obama administration had a radical and terrifying interpretation of certain national security statutes.

He did more than muse about it, though. He asked James R. Clapper, director of national intelligence, who was under oath and at a public congressional hearing, whether his spies were gathering data on millions of Americans. Mr. Clapper said no. The retired lieutenant general later acknowledged that his answer was untruthful, but he claimed that it was the “least untruthful” reply he could have given. This “least untruthful” nonsense is not a recognized defense to the crime of perjury.

After we learned that the feds are spying on nearly all Americans, that they possess our texts and emails and have access to our phone conversations, Gen. Keith Alexander, who runs the NSA, was asked under oath whether his spies have the ability to read emails and listen to telephone calls. He answered, “No, we don’t have that authority.” Because the questioner — FBI agent turned Rep. Mike Rogers, Michigan Republican — was in cahoots with the general in keeping Americans in the dark about unconstitutional search warrants, there was no follow-up question. In a serious public interrogation, a committee chairman interested in the truth would have directed the general to answer the question that was asked.

Since that deft and misleading act, former NSA staffers have told Fox News that federal agents can read any email and listen to any phone call, and Gen. Alexander and Mr. Rogers know that. So Gen. Alexander’s “no,” just like his boss’ “no,” was a lie at worst and seriously misleading at best.

This is not an academic argument. The oath to tell the truth — “the whole truth and nothing but the truth” — also makes those who intentionally mislead Congress subject to prosecution for perjury.

President Obama is smarter than his generals. He smoothly told a friendly interviewer, while not under oath, that the feds are not listening to our phone calls or reading our emails. He, of course, could not claim that they lack the ability to do so because we all now know that he knows they can.

These Edward Snowden revelations continue to cast light on the feds when they prefer darkness. Whatever one thinks of Mr. Snowden’s world-traveling odyssey to avoid the inhumane treatment the feds visited upon Army Pfc. Bradley Manning, another whistleblower who exposed government treachery, he has awakened a giant. The giant is a public that has had enough of violations of the Constitution and lies to cover them up. The giant is fed up with menial politicians and their media allies demonizing the messenger because his message embarrasses the government by revealing that it is unworthy of caring for the Constitution.

Think about that: The very people in whose hands we have reposed the Constitution for preservation, protection, defense and enforcement have subverted it.

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