- - Wednesday, February 12, 2014

The First Amendment has the power to pry the lid off government skulduggery.

Last week, a little noticed clash took place on Capitol Hill involving the fundamental values underlying the First Amendment. The issue was the lawfulness of publishing the secrets that were given to reporters by former National Security Agency (NSA) contractor Edward Snowden.

The disputants were Rep. Mike Rogers, Michigan Republican, and FBI Director James Comey.

Mr. Rogers is the chief congressional apologist for the massive NSA spying apparatus. He is the current chairman of the House Permanent Select Committee on Intelligence, and in that capacity, he is one of the dozen members of Congress from both houses who were privy to much of the NSA spying before the Snowden revelations.


In our perverse post-September 11 world, federal law actually permits this Gang of 12 to substitute for all 535 members of Congress with respect to knowledge of intelligence secrets.

Since the terrorist attacks of 2001, the Bush and Obama administrations have succeeded in claiming they have congressional consent for the massive NSA spying by merely getting a consensus from the Gang of 12.

There is, of course, no provision in the Constitution for the substitution of all 535 members of Congress with a select group of 12 of them, but Congress and Presidents Bush and Obama have gone along with this.

The kicker is that all members of the Gang of 12 have been sworn to secrecy and threatened with prosecution if they reveal to anyone, including other members of Congress, what the NSA and other intelligence agencies reveal to them. What kind of representative democracy is that?

Mr. Rogers is one of the chief architects and cheerleaders of this unconstitutional version of representative democracy. This is the same system that sends the NSA to judges of the Foreign Intelligence Surveillance Court for search warrants that purport to authorize the NSA to capture the content of every text message, email, telephone call, bank statement, credit card bill and utility bill of everyone in America.

This apparatus, too, involves another Gang of 12; namely, the 12 federal judges on the FISA court. They suffer from the same secrecy kicker as Mr. Rogers‘ gang does: They, too, are sworn to secrecy and have been implicitly threatened with prosecution if they violate their oaths.

These judges issue search warrants based on the NSA’s unchallenged wishes, not based on the constitutional requirement of particularly identifying for the court the target of the search and then presenting evidence to the court that constitutes probable cause of criminal behavior on the part of the target.

This, too, is unconstitutional, as it is the product of a congressional alteration of the Constitution. As most schoolchildren know, Congress cannot alter or amend the Constitution — only the states can.

Yet, by instructing FISA judges to issue search warrants that do not meet the constitutional identity of target and probable-cause standards, Congress has substantially altered the Constitution, and the judicial Gang of 12 has gone along with this.

As one of the architects of all this domestic spying, and as one of the believers that the public should be kept in the dark about it, Mr. Rogers has not been happy with the Snowden revelations. Mr. Snowden subscribed to the same oath of secrecy as the two Gangs of 12, but he also swore — as they have — to uphold the Constitution.

To Mr. Snowden, the people have a fundamental right to know that their government has cooked up the most massive secret violation of civil liberties in the nation’s history, and his oath to uphold the Constitution compelled his revelations. To Mr. Rogers, Mr. Snowden must be a traitor or a spy.

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