Killing the Constitution

They were wrong.

After the abuses of the right to privacy orchestrated by President Richard Nixon and carried out by the CIA and the FBI during the Watergate era, Congress enacted the Foreign Intelligence Surveillance Act, which established a secret court to do to Americans what the British had done to the colonists -- issue broad general warrants, based on whatever the government wanted and not specifying the place to be searched or the person or thing to be seized. Much of the intelligence community gave only lip service to FISA and used high-tech means to spy on all persons in the U.S. all the time.

When the courageous Edward Snowden, who had been both a CIA and an NSA agent, revealed the warrantless spying, instead of curtailing it, Congress made it lawful; unconstitutional, but lawful.

The infamous Section 702 of FISA expressly authorizes the feds to spy on foreign persons and those with whom they communicate, inside the U.S. and elsewhere, without warrants. That means that if a foreign person communicates with an American, the feds can spy on the American as well, without a warrant. The FISA Court has interpreted 702 to permit the feds to spy on communications with foreigners -- even innocuous communications, like family chatter, ordinary commercial transactions, or academic or medical consults -- and the Americans with whom they speak to the third degree.

Hence, if you email your cousin in Europe, the feds can warrantlessly capture all the fiber-optic traffic you generate, as well as all the traffic of all persons in the U.S. to whom you communicate, as well as all the traffic generated by all persons to whom they communicate. If you do the math, you will see that these numbers of victims -- Americans spied upon without suspicion, probable cause or warrants -- can quickly reach into the hundreds of millions.

The new Section 702 is worse for freedom than its predecessor. Though shortened to two years before sunsetting -- these sunsets are a joke as they never happen -- the new 702 requires that any person in the U.S. who installs, maintains or repairs any fiber-optic system must assist the feds in using that system to spy on the person's own customers. It also prohibits that person from speaking about this. What happened to the freedom of speech?

It gets worse. The new Section 702 exempts members of Congress from the thou shalt not tell. So, if you or I or a member of the Supreme Court is spied upon by our cable installer, he cannot tell anyone. But if your representatives in Congress are spied upon, the cable installer and the spies will inform them. What kind of a democracy is this? And if the cable installer does tell you or refuses to spy upon you, the terrors of East Germany will come down upon him.

Why do we permit Congress with a whimper to legislate away the freedom of speech and the right to privacy? Why do we repose the Constitution for safekeeping into the hands of those determined to kill it? Is it any wonder that cynicism about the government is so pervasive in the land?

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To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.