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[ParanoidTimes] Congress Created a Monster

Congress Created a Monster

By Andrew P. Napolitano - March 09, 2017

Those of us who believe that the Constitution
means what it says have been arguing since the
late 1970s that congressional efforts to
strengthen national security by weakening personal
liberty are unconstitutional, un-American and
ineffective. The Foreign Intelligence Surveillance
Act, which Congress passed in the aftermath of
President Richard Nixon's use of the CIA and the
FBI to spy on his political opponents, has
unleashed demons that now seem beyond the
government's control and are more pervasive than
anything Nixon could have dreamed of.

This realization came to a boiling point last
weekend when President Donald Trump accused former
President Barack Obama of monitoring his telephone
calls during the 2016 presidential election
campaign. Can a U.S. president legally spy on a
political opponent or any other person in America
without any suspicion, probable cause or warrant
from a judge? In a word, yes.

Here is the back story.

The president can order the National Security
Agency to spy on anyone at any time for any
reason, without a warrant. This is profoundly
unconstitutional but absolutely lawful because it
is expressly authorized by the FISA statute.

All electronic surveillance today, whether ordered
by the president or authorized by a court, is done
remotely by accessing the computers of every
telephone and computer service provider in the
United States. The NSA has 24/7/365 access to all
the mainframe computers of all the telephone and
computer service providers in America.

The service providers are required by law to
permit this access and are prohibited by law from
complaining about it publicly, challenging it in
court or revealing any of its details. In passing
these prohibitions, Congress violated the First
Amendment, which prohibits it from infringing upon
the freedom of speech.

The fruits of electronic surveillance cannot be
used in criminal prosecutions but can be shared
with the president. If they are revealed publicly,
the revelation constitutes computer hacking, a
federal crime. Nevertheless, some of what was
overheard from telephone conversations between the
Russian ambassador to the U.S. and former Lt. Gen.
Michael Flynn, Trump's former national security
adviser, was revealed to the public – a revelation
that profoundly disturbed the White House and many
in the intelligence community and constituted a

The original purpose of FISA was to place the
judiciary as an intermediary between the nation's
spies and the foreign agents we all know are among
us. The theory was that the NSA would first need
to demonstrate to a secret court probable cause
that the target of the spying is an agent of a
foreign power and this would restrain the NSA from
spying on ordinary Americans. This probable cause
of foreign agency was a dramatic congressional
rejection of the constitutional standard – namely,
probable cause of crime – for the issuance of
warrants. Foreign agency is not a crime.

This congressional rejection of constitutional
norms began the slippery slope in which the
foreign agency standard has morphed by legislation
and by secret interpretations of the Foreign
Intelligence Surveillance Court to probable cause
of foreign personhood to probable cause of talking
to a foreign person to probable cause of being
able to talk to a foreign person to – dropping the
probable cause standard altogether – anyone who
speaks to anyone else who could speak to a foreign

This Orwellian and absurd expansion was developed
by spies and approved by judges on the FISA court.
The NSA argued that it would be more efficient to
spy on everyone in the United States than to
isolate bad people, and the court bought that

Hence, FISA warrants do not name particular people
or places as their targets as the Constitution
requires. Rather, they merely continue in place
the previous warrants, which encompass everyone in
the country. FISA warrants are general warrants,
allowing intelligence agents to listen to whomever
they wish and retain whatever they hear. General
warrants are expressly prohibited by the Fourth
Amendment, which requires that all warrants for
all purposes be based on probable cause of crime
and particularly describe the person or thing to
be seized – e.g., a conversation – or the place to
be searched.

Even though the NSA already has the legal, though
unconstitutional, authority to capture any phone
conversation or computer keystroke it wishes, its
60,000 agents lack the resources to listen to all
conversations or read all electronic
communications in real time. But it does capture
the digital versions of all computer keystrokes
made in or to the U.S. and all conversations had
within the U.S. or involving someone in the U.S.;
it has been doing so since 2005. And it can
download any conversation or text or email at

That's why the recent argument that Obama ordered
the NSA to obtain a FISA warrant for Trump's
telephone calls and a judge issued a warrant for
them is nonsense. The NSA already has a digital
version of every call Trump has made or received
since 2005. Because the NSA – which now works for
Trump – is a part of the Defense Department, it is
subject to the orders of the president in his
capacity as commander in chief. So if the
commander in chief wants something that a military
custodian already has or can create – such as a
transcript of an opponent's conversations with
political strategists during a presidential
campaign – why would he bother getting a warrant?
He wouldn't.

All of this leads to information overload – so
much material that the communications of evil
people are safely hidden in with the mountain of
data from the rest of us. The NSA captures the
digital equivalent – if printed – of 27 times the
contents of the Library of Congress every year.

All of this also leads to the monstrous power of
the NSA to manipulate, torment and control the
president by selectively concealing and
selectively revealing data to him. The
Constitution does not entrust such power to anyone
in government. But Congress has given it.

All of this also substantially impairs a
fundamental personal liberty, the right to be left
alone – a right for which we seceded from Great
Britain, a right guaranteed by the Fourth
Amendment and a right for which we fought wars
against tyrants who we feared would take it from

Yet after we won those wars, we permitted our
elected representatives to crush that right. Those
faithless representatives have created a monster
that has now turned on us.

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 seven books on the US
Constitution. The most recent is Suicide Pact: The
Radical Expansion of Presidential Powers and the
Lethal Threat to American Liberty. To find out
more about Judge Napolitano and to read features
by other Creators Syndicate writers and
cartoonists, visit


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