Saturday 20th December 2014

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Almost Orwellian

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By ANDREW P. NAPOLITANO

“Almost Orwellian” — that’s the description a federal judge gave in mid-December to the massive spying by the National Security Agency (NSA) on virtually all 380 million cell phones in the United States.
In the first meaningful and jurisdictionally grounded judicial review of the NSA cell-phone spying program, U.S. District Court Judge Richard Leon, a George W. Bush appointee sitting in Washington, D.C., ruled that the scheme of asking a secret judge on a secret court for a general warrant to spy on all American cell-phone users without providing evidence of probable cause of criminal behavior against any of them is unconstitutional because it directly violates the Fourth Amendment.
Readers of this page are familiar with the purpose of that amendment and the requirements it imposes on the government. The Framers intended it to prevent the new government in America from doing to Americans what the British government had done to the colonists under the king.
The British government had used general warrants — which are not based on individualized probable cause and do not name the place to be searched or the person or thing to be seized — to authorize British soldiers to search the colonists wherever they pleased for whatever they wished to seize. The reason for the Fourth Amendment requirement of individualized probable cause and specificity in the warrant is to prevent the very type of general warrant that the NSA has claimed is lawful. The reason for preventing general warrants is that they have become an instrument of tyranny.
It is against this well-known historical context that Leon engaged in his analysis of the feds who spy on us. This is truly the first jurisdictionally based judicial ruling on the cell-phone aspect of the domestic spying that former NSA contractor Edward Snowden revealed last spring. Though the NSA and the Obama and Bush administrations have claimed that judges of the Foreign Intelligence Surveillance Court (FISC) not only found the NSA cell-phone spying to be constitutional, but also authorized it, those judges were performing a statutory clerical function, not a constitutional jurisdictionally based judicial function.
The Constitution requires a case or controversy — basically lawyers arguing against each other on behalf of clients whose interests are adverse — in order to invoke the jurisdiction of federal courts. The FISC judges, who sit and sign in secret, do not do so under the Constitution, because they have no case or controversy before them. They have only the NSA before them. Leon was the first federal judge to rule on the constitutionality of NSA spying under the Constitution — in the context of a litigant challenging the government and the government defending itself. And he found that spying to be in violation of the Constitution.
In his ruling, he dispatched with clarity the government’s argument that two Supreme Court cases from the late 1970s and early 1980s, in which the court permitted evidence obtained from telephone billing data without a search warrant to be introduced in criminal cases, support the constitutionality of the NSA’s phone metadata collection. That was before the era of cell phones, and that was before the Supreme Court ruled that a search warrant is required to hunt electronically for marijuana plants in a home and to install and follow a GPS in a car.
By ruling that two now-outdated Supreme Court cases are no longer controlling, he almost guaranteed that the High Court will take this case.
The NSA was emasculated before Leon. Gone were the lies of Director of National Intelligence James Clapper, who stated under oath that the government does not spy on Americans. Gone was the bravado of NSA boss Gen. Keith Alexander, who claimed initially under oath that his spies stopped 52 terrorist plots and then mysteriously corrected himself and said they really stopped just three, but declined to identify the three. Gone was the if-we-don’t-do-this-we-all-will-die argument. Gone was the if-you-have-nothing-to-hide-you-have-nothing-to-fear nonsense that congressional NSA apologists have advanced.
In place of the political claptrap is the court’s finding that not only is the NSA spying unconstitutional, but it doesn’t work. After hearing the NSA state its case, Leon wrote, “I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.” And he added an admonition that it doesn’t help the NSA’s case to be less than candid with the judge.
This was not a difficult case for the court. The government’s behavior was utterly indefensible. It was profoundly dismissive of the Constitution that federal employees have sworn to uphold. Leon wrote: “I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”
Even though Madison would be aghast, surely the Obama administration will appeal this, and just as surely, appellate judges or Supreme Court justices will have the final say. But for now, we have the great satisfaction of knowing that an independent judiciary has saved our liberties from the tyranny of the majority. And this is a cause for great joy.

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(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 U.S. Constitution. The most recent is Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom. Creators Syndicate distributes his column; all rights reserved.)

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