NAPOLITANO: A presidential placebo on NSA unconstitutionality

Obama maneuver changes nothing about snooping on Americans

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When President Obama chose a Friday before a three-day holiday weekend to address a matter as profound as the National Security Agency (NSA) spying scandal, I suspected he would raise issues that he hoped the media would ignore. That’s because the Reagan White House did a study in the early 1980s and concluded that Fridays are low-value news days, and thus, a good time to bury the lead, so to speak. Every president since then has followed that lead.

Instead of addressing the massive violations of the natural and constitutionally protected right to privacy; instead of acknowledging that but for the personal courage of Edward Snowden, his administration would still be pulling the wool over our eyes; and instead of re-establishing the serious constitutional and civil liberties bona fides he established for himself as a U.S. senator, the president defended his massive spying as a necessary tool in the fight to maintain national security and offered only a placebo to its critics.

Just how massive is this scandal? The Washington Post has reported that the NSA hacks into 500,000 American buddy lists and 600,000 American address books every day, and The Guardian of London reported last week that the NSA seizes 200 million American text messages every day. This is in addition to seizing the content of all cellphone- and landline-generated telephone conversations and copies of all emails sent or received in the United States. All of that is in addition to seizing all bank records, utility bills and credit card bills of everyone in the United States.

By not addressing or refuting any of this, the president obviously plans to continue it. He also plans to reject the most basic principles of American government. If the government derives its powers from the consent of the governed, as the Declaration of Independence declares it does, and if the governed lack the lawful authority to hack and seize our neighbors’ texts, phone calls and utility bills, how could we have given that authority to the government?

In the president’s world, that’s an easy question to answer: Do it in secret. Enact legislation that lets a dozen NSA-sycophantic members of Congress speak for the legislative branch, tell only that dozen about the spying in secret and swear them to secrecy. Enact legislation that lets a dozen secret judges issue search warrants based on the government’s wishes rather than probable cause, and seek permission from any one of those judges in secret and swear them to secrecy. Then in public, deny and lie, and change the subject.

In a thinly disguised effort to change the subject, Mr. Obama’s Friday speech focused on where the seized data is stored, rather than on whether the government in a free society is empowered to collect it. He proposed that the data seized by the NSA be stored at nongovernment locations that he did not identify and kept there and be made available to the NSA after approval by the secret Foreign Intelligence Surveillance Act (FISA) court.

Even if a third party willing and able to store this data could be found, the additional step to the FISA court is no additional constitutional protection whatsoever. Every federal and state court in the United States follows the constitutional requirement that whenever any government is seeking a search warrant to conduct surveillance, the government must present particularized evidence identifying its target, and the evidence must constitute probable cause of criminal behavior on the part of that target — every court, that is, except the FISA court. That court issues general warrants that do not name a target and are based on the NSA’s wishes, rather than evidence of probable cause.

That silent exhalation of relief from the NSA last week was generated by the realization that this third-party storage proposal will not restrict the massive spying one iota.

Added to this placebo is the president’s proposal to employ a defender of the Constitution (what a great job title!) to appear before the FISA court, along with lawyers for the NSA, and argue against the NSA’s wishes. This is another diversion that would add another level of unconstitutional and irrelevant complexity to the current scheme.

Currently, the persons on the FISA court may be federal judges, but they are performing clerical functions, not judicial functions. That’s because, unlike state courts, which are courts of general jurisdiction, the jurisdiction of all federal courts can only be invoked when there are real cases and controversies brought to them. If the defender of the Constitution appeared in front of the FISA court, he could only do so by representing a real client in a real dispute with the federal government. However, the NSA does not identify its targets, much less deal with their lawyers. The president’s proposal would turn this non-court court into a law school moot-court exercise.

His third proposal adds insult to injury. He offers to stop the NSA from doing to foreign leaders what it has been doing to Americans. No doubt, that is to enable him to save face with his selfie-snapping European colleagues. It hardly smacks of understanding the problem of massive spying, though. It may be an insult to spy on his fellow heads of state, and it may affect diplomacy with them, but stopping it hardly enhances the natural right to privacy for the rest of us.

This mass spying is uniquely and profoundly un-American, and will continue to undermine our freedoms. I am not arguing here that all spying is illegal — just that spying on all of us is illegal. Why bother with the formality of warrants when they permit all spying all the time? Spying on anyone not named in a warrant, or employing a warrant not based on probable cause, is the hallmark of those totalitarian regimes against which we have fought our just wars and our cold wars. Yet today, the government in America seems more like the former enemies we vanquished than the place of life, liberty and the pursuit of happiness the Framers established.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution.

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