President George W. Bush was fond of saying that “9/11 changed everything.” He used that one-liner often as a purported moral basis to justify the radical restructuring of federal law and the federal assault on personal liberties over which he presided. He cast aside his oath to preserve, protect and defend the Constitution; he rejected his oath to enforce all federal laws faithfully; and he moved the government decidedly in the direction of secret laws, secret procedures and secret courts.
During his presidency, Congress enacted the Patriot Act. This legislation permits federal agents to write their own search warrants when those warrants are served on custodians of records — like doctors, lawyers, telecoms, computer servers, banks and even the Post Office.
Such purported statutory authority directly violates the Fourth Amendment to the U.S. Constitution, which guarantees the right to privacy in our “persons, houses, papers and effects.” That includes just about everything held by the custodians of our records. Privacy is not only a constitutional right protected by the document; it is also a natural right. We possess the right to privacy by virtue of our humanity. Our rights come from within us — whether you believe we are the highest progression of biological forces or the intended creations of an Almighty God — they do not come from the government.
This is not an academic argument. If our rights come from within us, the government cannot take them away, whether by executive fiat, popular legislation or judicial ruling, unless we individually have waived them. If our rights come from the government, then they are not rights, but permission slips.
The terms of the Patriot Act were made public, and those of us who follow the government’s misdeeds could report on them. After all, this is America. We are a democracy. The government is supposed to work for us. We have the right to know what it is doing in our names as it is doing it, and we have the right to reveal what the government does. Yet, under this law, the feds punished many efforts at revelation. That’s because the Patriot Act prohibits those who receive these agent-written search warrants from telling anyone about them. This violates our constitutionally protected and natural right to free speech. All of this has been publicly known since 2001.
Then, in June 2013, Edward Snowden, the uber-courageous former CIA and NSA official, dropped a still smoldering bombshell of truth upon us when he revealed that the Bush administration had dispatched the NSA to spy on all Americans all the time and the Obama administration had attempted to make the spying appear legal by asking judges to authorize it.
Snowden went on to reveal that the NSA, pursuant to President Obama’s orders and the authorization of these judges meeting in secret (so secret that the judges themselves are not permitted to keep records of their own rulings), was actually capturing and storing the content of all emails, text messages, telephone calls, utility and credit card bills, and bank statements of everyone in America. They did this without a search warrant based on probable cause — a very high level of individualized suspicion — as required by the Constitution.
Snowden revealed that Obama’s lawyers had persuaded these secret judges, without any opposition from lawyers representing the victims of this surveillance, that somehow Congress had authorized this and somehow it was constitutional and somehow it was not un-American to spy on all of us all the time. These judges actually did the unthinkable: They issued what are known as general warrants. General warrants were used against the colonists by the British and are expressly prohibited by the Fourth Amendment. They permit the bearer to search wherever he wishes and seize whatever he finds. That’s what the NSA does to all of us today.
Last week, we learned how deep the disrespect for the Constitution runs in the government and how tortured is the logic that underlies it. In a little-noted speech at Washington and Lee Law School, Gen. Michael Hayden, the former director of both the CIA and the NSA, told us. In a remarkable public confession, he revealed that somehow he received from some source he did not name the authority to reinterpret the Fourth Amendment’s protection of privacy so as to obliterate it. He argued that the line between privacy and unbridled government surveillance is a flexible and movable one, and that he — as the head of the NSA — could move it.
This is an astounding audacity by a former high-ranking government official who swore numerous times to uphold the Constitution. He has claimed powers for himself that are nowhere in the Constitution or federal statutes, powers that no president or Congress has claimed, powers that no Supreme Court decision has articulated, powers that are antithetical to the plain meaning and supremacy of the Constitution, powers that any non-secret judge anywhere would deny him.
If the terms and meaning of the Constitution could be changed by the secret whims of those in the executive branch into whose hands they have been reposed for safekeeping, of what value are they? No value. In such a world, our Constitution has become a worthless piece of paper.
Judge Andrew 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.
