The State Is Spying on You
Right Now. Where's the Outrage?
Government spying is so common today that it
is almost the new normal. Yet government
spying is not normal to the Constitution.
By Andrew Napolitano
March 26, 2015 "ICH"
- Here is a short pop quiz: When Israeli
Prime Minister Benjamin Netanyahu addressed
Congress earlier this month about the
parameters of the secret negotiations
between the United States and Iran over
nuclear weapons and economic sanctions, how
did he know what the negotiators were
considering? Israel is not a party to those
negotiations, yet the prime minister
presented them in detail.
When Hillary Clinton learned
that a committee of the U.S. House of
Representatives had subpoenaed her emails as
secretary of state and she promptly
destroyed half of them—about 33,000—how did
she know she could get away with it?
Destruction of evidence, particularly
government records, constitutes the crime of
obstruction of justice.
When Gen. Michael Hayden,
the director of both the CIA and the NSA in
the George W. Bush administration and the
architect of the government's massive
suspicionless spying program, was recently
publicly challenged to deny that the feds
have the ability to turn on your computer,
cellphone, or mobile device in your home and
elsewhere, and use your own devices to spy
on you, why did he remain silent? The
audience at the venue where he was
challenged rationally concluded that his
silence was his consent.
And when two judges were
recently confronted with transcripts of
conversations between known drug
dealers—transcripts obtained without search
warrants—and they asked the police who
obtained them to explain their sources, how
is it that the cops could refuse to answer?
The government has the same obligation to
tell the truth in a courtroom as any
litigant, and in a criminal case, the
government must establish that its
acquisition of all of its evidence was
lawful.
The common themes here are
government spying and lawlessness. We now
know that the Israelis spied on Secretary of
State John Kerry, and so Netanyahu knew of
what he spoke. We know that the Clintons
believe there is a set of laws for them and
another for the rest of us, and so Mrs.
Clinton could credibly believe that her
deception and destruction would go
unpunished.
We know that the NSA can
listen to all we say if we are near enough
to a device it can turn on. (Quick: How
close are you as you read this to an
electronic device that the NSA can access
and use as a listening device?) And we also
know that the feds gave secret roadside
listening devices to about 50 local police
departments, which acquired them generally
without the public consent of elected
officials in return for oaths not to reveal
the source of the hardware. It came from the
secret budget of the CIA, which is
prohibited by law from spying in the U.S.
What's going on here?
What's going on here is
government's fixation on spying and lying.
Think about it: The Israeli Mossad was
spying on Kerry while the CIA was spying on
the Mossad. Hillary Clinton thought she
could destroy her emails just because she is
Hillary Clinton, yet she forgot that the
administration of which she was an integral
part dispatched the NSA to spy on everyone,
including her. And though it might not
voluntarily release the emails she thought
she destroyed, the NSA surely has them. The
police have no hesitation about engaging in
the same warrantless surveillance as the
feds. And when Hayden revealed a cat-like
smile on his face when challenged about the
feds in our bedrooms, and the 10,000 folks
in the audience did not reveal outrage, you
know that government spying is so endemic
today that it is almost the new normal.
Yet government spying is
not normal to the Constitution. Its
essence—government fishing nets, the
indiscriminate deployment of government
resources to see what they can bring in,
government interference with personal
privacy without suspicion or probable
cause—was rejected by the Framers and
remains expressly rejected by the Fourth
Amendment today.
For our liberty to survive
in this fearful post-9/11 world, the
government's lawless behavior must be
rejected not just by the words of dead
people, but by the deeds of we the living.
When the president violates the Constitution
and the Congress and courts do nothing to
stop him, we have effectively amended the
Constitution with a wink and a nod—by
consent, if you will. Its guarantees of
liberty are only guarantees if the people in
whose hands we repose it for safekeeping
honor them as guarantees and believe and
behave as such because the Constitution
means what it says.
Where is the outrage? If
you knew the feds were virtually present in
your bedroom or your automobile, and your
representatives in Congress did nothing
about it, would you buy the nonsense that
you should have nothing to hide? Would you
send those weaklings back to Congress? Or
would you say to a lawless government, as
the Founders did to the British, "Thou shalt
not enter here"? Does the Constitution mean
what it says in bad times as well as in good
times?
These are not academic
questions. They address the most important
issue of our day. For nothing will destroy
our personal liberties more effectively than
the government refusing to honor them and
Americans sheepishly accepting that. And
without freedom, what are we?
Andrew P. Napolitano, a
former judge of the Superior Court of New
Jersey, is the senior judicial analyst at
Fox News Channel. Judge Napolitano has
written nine 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.