President and Congress are Heedless to the Limits of Their Power
By Andrew Napolitano
WashingtonTimes.com
When the government is
waving at us with its right hand, so to speak, it is
the government’s left hand that we should be
watching. Just as a magician draws your attention to
what he wants you to see so you will not observe how
his trick is performed, last week presented a
textbook example of public disputes masking hidden
deceptions. Here is what happened.
Last week was dominated by two huge news stories.
One was the revelation by the Senate Select
Committee on Intelligence about torture committed by
CIA agents and contractors on 119 detainees in the
post-Sept. 11 era — 26 of whom were tortured for
months by mistake. In that revelation of anguish and
error were the conclusions by CIA agents themselves
that their torture had not produced helpful
information. President Obama acknowledged that the
CIA had tortured, yet he directed the Department of
Justice not to prosecute those who tortured and
those who authorized it.
The other substantial news story was the compromise
achieved by Congress and the White House to fund the
government through the end of September. That
legislation, which is 2,000 pages in length, was not
read by anyone who voted for it. It spends a few
hundred billion dollars more than the government
will collect in tax revenue. The compromise was
achieved through bribery; members of Congress bought
and sold votes by adding goodies (in the form of
local expenditures of money borrowed by the federal
government) to the bill that were never debated or
independently voted upon and were added solely to
achieve the votes needed for passage. This is how
the federal government operates today. Both parties
participate in it. They have turned the public
Treasury into a public trough.
Hidden in the law that authorized the government to
spend more than it will collect was a part about
funding for the 16 federal civilian intelligence
agencies. Hidden in that was a clause, inserted by
the same Senate intelligence committee that revealed
the CIA torture, authorizing the National Security
Agency to gather and retain nonpublic data for five
years and to share it with law enforcement and with
foreign governments. “Non-public data” is the
government’s language referring to the content of
the emails, text messages, telephone calls, bank
statements, utility bills and credit card bills of
nearly every innocent person in America — including
members of Congress, federal judges, public
officials and law enforcement officials. I say
“innocent” because the language of this legislation
— which purports to make lawful the NSA spying we
now all know about — makes clear that those who spy
upon us needn’t have any articulable suspicion or
probable cause for spying.
The need for articulable suspicion and probable
cause has its origins in the Fourth Amendment to the
Constitution, which was written to prohibit what
Congress just authorized. That amendment was a
reaction to the brutish British practice of
rummaging through the homes of American Colonists to
look for anything that might be illegal. It is also
a codification of our natural right to privacy. It
requires that if the government wants nonpublic data
from our persons, houses, papers or effects, it must
first present evidence of probable cause to a judge
and then ask the judge for a search warrant.
Probable cause is a level of evidence that is
sufficient to induce a judge into concluding that it
is more likely than not that the place to be
examined contains evidence of crimes. In order to
seek probable cause, the government must have an
articulable suspicion about the person or place it
has targeted. Were this not in the law, then nothing
would stop the government from fishing expeditions
in pursuit of anyone it wants to pursue, and fishing
expeditions turn the presumption of liberty on its
head. The presumption of liberty is based on the
belief that our rights are natural to us and that we
may exercise them without a permission slip from the
government and without its surveillance.
Until last week, that is. Last week, Congress, by
authorizing the massive NSA spying to continue and
by authorizing the spies to share what they have
seized with law enforcement, basically permitted the
fishing expeditions that the Fourth Amendment was
written to prevent.
How can the president and Congress defy the
Constitution, you might ask? Hasn’t every member of
the government taken an oath to uphold the
Constitution? Doesn’t the Constitution create the
presidency and the Congress? How can politicians
purport to change it?
The answers to these questions are obvious, as is
the belief of most of those in government that they
can write any law and regulate any behavior and
ignore the Constitution they have sworn to uphold
whenever they want, so long as they can get away
with it.
• 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.