Last week, Joseph R. Biden was inaugurated as the 46th president of the United States. The federal government began arresting those it claims attempted to interfere violently with Congress’ constitutional duties to authenticate Electoral College votes on Jan. 6. The Senate announced it would go forward with a second impeachment trial of Donald J. Trump, even though he is no longer in office. And the Defense Intelligence Agency sent a two-page memo to Sen. Ron Wyden, Oregon Democrat.
Guess which of these events never made it to the front pages? If you guessed the DIA memo, then you’d be correct. In that memo, the government acknowledged for the first time that it willingly and knowingly has violated the Constitution by using commercially available software to track the movements of innocent people in America without search warrants.
When asked how it could get away with this, the DIA told Mr. Wyden it had a unique interpretation of a recent Supreme Court decision that expressly prohibits the very spying in which the DIA engages.
Here is the backstory.
Those of us who follow the government’s violations of natural rights and constitutional guarantees have been arguing for years that the feds have the ability to monitor the movements of our smartphones. We have also argued that the feds can listen in on conversations that take place in the presence of the smartphones, and they do all this without obtaining a search warrant.
Last week, the feds admitted that they have been doing this since the latter part of the Obama administration and throughout the Trump administration.
After years of denying this, the feds must have seen the handwriting on the wall and knew that someone would soon be asked about this during the confirmation process for Biden’s intelligence community nominees. A failure to give a truthful answer would be career-ending, and perhaps freedom-ending.
The DIA’s justification for its warrantless spying is breathtaking. It argues that because it is not law enforcement, it is not subject to the constitutional restraints imposed upon law enforcement as interpreted by the Supreme Court. This is an argument that the court has never accepted. The DIA, apparently, thinks it is a law unto itself.
It also claims that because it can purchase the tracing software commercially, it can use it freely, just like any other purchaser. Such a rationale utterly defies the Fourth Amendment to the Constitution. Private purchasers are not bound by the Fourth Amendment — but the government is.
In 2018, in a case called Carpenter v. United States, the Supreme Court was confronted with an appeal of a conviction based on FBI use of commercially purchased tracking software, which agents employed to trace the defendant’s movements, and which put him in the vicinity of a series of armed robberies. On the basis of that data, he was convicted of the robberies.
The court vacated the conviction, holding that the government needs a search warrant based on probable cause of crime before it can use surveillance techniques to trace or track a potential defendant.
The DIA and other domestic American spy entities — there are 16 that the government acknowledges it operates — have taken the view that because the tracking software is available commercially, and because the domestic spies are intelligence and not law enforcement, they need not obtain a warrant. Stated differently, because the DIA did not seek to use its powers to compel a warrantless search of phone records, but rather stole phone signals, it committed no wrong!
This is a profound and direct violation of the Fourth Amendment, which was written for the very purpose of upholding the quintessential American right — the right to be left alone. The pre-Revolutionary British government regularly violated this right by obtaining secret general search warrants from courts in London. General search warrants permitted the bearer to search where he wished and seize what he found.
To ensure that the new American government could not do what the British government had been doing to the colonists, the Fourth Amendment was enacted. It states that there shall be no search or seizure or surveillance but for one authorized in writing by a judge based on probable cause of crime sworn to under oath and specifically describing the place to be searched and the person or thing to be seized.
When it comes to surveillance, there is no exception to this. The Fourth Amendment serves a dual purpose. The first is to prevent fishing expeditions — such as the very acts the DIA now admits it utilizes — in violation of the natural right to privacy. The second is to compel the government to focus its resources on those suspects as to whom it has a judicially recognized probable cause of crime.
The depth of the government’s admissions are staggering. Its architecture is a decrepit three-legged stool on which sits totalitarianism, arrogance and lawlessness. One leg of the stool upholds a self-crafted immunity from compliance with the laws of the land. The second leg supports ways to avoid constitutional norms while still appearing licit in the eyes of the public. And the third and weakest leg offers its interpretation of the Constitution — separate and apart from what the Supreme Court has ordered.
This stool should be cast into the dustbin of history. It was built by those who have been unfaithful to their oaths to preserve, protect and defend the Constitution of the United States — the very same Constitution that is only as valuable as a safeguard to freedom as is the fidelity of those into whose hands we have reposed it for safekeeping.
We have put it into the hands of madmen.
• Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is a regular contributor to The Washington Times. He is the author of nine books on the U.S. Constitution.