From the Right



Spying In Plain Sight

Judge Andrew P. Napolitano on

Last week, the Biden administration asked Congress to permit its agents to continue to spy on Americans without search warrants. The actual request was to re-authorize Section 702 of the Foreign Intelligence Surveillance Act of 1978. FISA requires warrants from the FISA Court for all domestic spying. Section 702 is a 2008 amendment to FISA. It expressly authorizes warrantless spying of foreign persons.

The Supreme Court has characterized spying as surveillance and surveillance as a search under the Fourth Amendment. That amendment requires search warrants issued by judges and based upon probable cause of crime demonstrated to the judges under oath and specifically describing the place to be searched or thing to be seized for the surveillance to be lawful.

Since FISA Court warrants -- issued by a secret court in Washington, D.C. -- are not based on probable cause of crime, and since Section 702 does away altogether with the warrant requirement when foreign persons are even peripherally involved, both FISA and its Section 702 are unconstitutional.

Here is the backstory.

After the resignation of President Richard Nixon in 1974 and the full extent of his use of the FBI and the CIA for domestic warrantless surveillance became known, Congress enacted FISA. It proclaims itself to have established the only lawful method for surveillance outside of the Fourth Amendment. This proclamation is a profound constitutional error -- an oxymoron -- as all surveillance in defiance of the Fourth Amendment is unconstitutional.

That amendment was written in the aftermath of British agents executing general warrants on the colonists. General warrants were not based on probable cause of crime, but rather governmental need. And they did not specifically describe the place to be searched or the person or thing to be seized.


Rather, general warrants -- issued by a secret court in London -- authorized the bearer in America to search wherever he wished and seize whatever he found. The agents ostensibly were looking for proof of tax payments. They were really engaged in spying. They were looking for subversive, revolutionary materials.

After the Revolutionary War was won and the Constitution was ratified, the Bill of Rights was ratified. The Fourth Amendment in the Bill of Rights protects all "people" from unreasonable searches and seizures by the government -- both law enforcement and spies. The courts have interpreted "unreasonable" to mean "without a search warrant."

The amendment's drafters' intentional employment of the word "people" makes it obvious that the amendment protects every person from every search and every seizure by anyone from the government without a warrant. It is not limited to Americans or adults or good people or people the government likes; rather, it protects all people.

In a linguistic effort to accommodate the warrant requirement and its probable cause pre-condition, the congressional drafters of FISA required that the FISA Court may issue warrants for surveillance based on probable cause, not of crime, but of being a foreign government agent. The FISA Court then, on its own, morphed foreign agency into foreign personhood, and then morphed that into communicating with a foreign person.


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Copyright 2023 Creators Syndicate, Inc.




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