Tuesday 2nd September 2014

Home » Featured Today » Currently Reading:

Probable Cause

March 30, 2014 Featured Today No Comments

By ANDREW P. NAPOLITANO

Except for the definition and mechanism of proving treason, no area of the Constitution addressing the rights of all persons when the government is pursuing them is more specific than the Fourth Amendment. The linchpin of that specificity is the requirement that the government demonstrate probable cause to a judge as a precondition to the judge issuing a search warrant.
The other specific requirement is identity: The government must identify whose property it wishes to search or whose behavior it wishes to monitor, because the Fourth Amendment requires that all warrants specifically describe the place to be searched or the person or thing to be seized.
The principal reason for these requirements is the colonial revulsion over general warrants. A general warrant does not specifically describe the place to be searched or the person or thing to be seized, and it is not based on the probable cause of criminal behavior of the person targeted by the government.
With a general warrant, the government simply gets authority from a judge to search a haystack looking for a needle, and in the process, it may disturb and move all the straw it wants. Stated differently, a general warrant permits the government to intrude upon the privacy of persons as to whom it has no probable cause of criminal behavior and without stating what it is looking for.
The Foreign Intelligence Surveillance Act (FISA) court has been issuing general warrants to the National Security Agency (NSA) since 1978, but it was not until last June that we learned that these general warrants have been executed upon the telephone calls, text messages, e-mails, bank records, utility bills, and credit-card bills of all persons in America since 2009.
The constitutional requirement of probable cause is not political fancy; rather, it saves us from tyranny. Probable cause is a quantum of evidence that is sufficient to lead a neutral judge to conclude that the person about whom the evidence has been presented is more likely than not to possess further evidence of criminal behavior, or has more likely than not engaged in criminal behavior that is worthy of the government’s use of its investigatory tools such that the government may lawfully and morally invade that person’s natural right to privacy.
Last week, Robert S. Litt, general counsel for the Office of the Director of National Intelligence, which runs the NSA, engaged in a curious colloquy with members of the president’s Privacy and Civil Liberties Oversight Board. Litt complained that presenting probable cause about individuals to judges and then seeking search warrants from those judges to engage in surveillance of each of those individuals is too difficult.
This is a remarkable admission from the chief lawyer for the nation’s spies. He and the 60,000 NSA employees and vendors who have been spying on us have taken oaths to uphold the Constitution. There are no loopholes in their oaths. Each person’s oath is to the entire Constitution — whether compliance is easy or difficult. Yet the “too difficult” admission has far-reaching implications.
This must mean that the NSA itself acknowledges that it is seeking and executing general warrants because the warrants the Constitution requires are too difficult to obtain. Stated differently, the NSA knows it is violating the Fourth Amendment to the Constitution, because that amendment expressly forbids general warrants.
In my career as a lawyer, judge, law professor, author, and television commentator, I have heard many excuses for violating the Constitution. I reject all of them when they come from one who has sworn to uphold the Constitution, yet I understand the intellectually honest excuses — like exigent circumstances — when they are based on duty. The NSA’s excuses are not intellectually honest, and they are not based on duty. They are based on laziness.
But there was more than met the eye in Litt’s testimony last week. Two days after Litt admitted to the use of general warrants, and while the president was in Europe, the White House leaked to the press its plans to curtail the massive NSA spying. Those plans, which would change only the appearance of what the NSA does but not its substance, have three parts.
The first change relieves the NSA of the need for general warrants to require delivery of massive amounts of data about innocent Americans as to which the NSA has no probable cause, because the second change requires the computer servers and telecoms to preserve their records — instead of the NSA preserving them — and make them “immediately” available to the NSA when it comes calling.
And the third is the requirement of a warrant from a FISA judge before the NSA may access that stored data. But because that warrant is not based on probable cause but rather on NSA whim, it is a foregone conclusion that the general warrants for examination, as opposed to delivery, will be granted. The FISA court has granted well in excess of 99 percent of the general warrants the NSA has sought.
Litt must have known what the White House planned to leak when he made his “too difficult” complaint, as it fits nicely with this new scheme. Yet the scheme itself, because it lacks the requirement of probable cause that the Constitution requires, is equally as unconstitutional and morally repugnant as what the NSA has been doing for five years.
Moreover, the NSA will not exactly go hat in hand to the computer servers, and telecoms once it wishes to hear telephone calls or read e-mails or credit-card bills. Its agents will simply press a few buttons on their computers when they wish, and the data they seek will be made available to them.
These so-called changes should be rejected by Congress, which should overhaul the NSA instead. Hasn’t Congress seen enough? The NSA and the CIA spy on the courts, Congress, the military, the police, and everyone in America. This keeps none of us safer. But it does lessen our freedom when those in whose hands we repose the Constitution for safekeeping look the other way.
What other freedoms are slipping because Congress, too, thinks upholding the Constitution is too difficult?

+    +    +

(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.)

Share Button

Comment on this Article:

Planned Parenthood promoting ‘prayer vigil’ for abortion-on-demand at Ohio capitol

To mark the end of a “week of action” by liberal activists in Ohio, Planned Parenthood is asking its supporters to participate in a prayer vigil and rally on the steps of the state capitol Thursday afternoon. “Ohio faith leaders…Continue Reading

Pope: When we become worldly, we lose Christian flavor

Vatican City, Aug 31, 2014 / 09:39 am (CNA/EWTN News).- Christians must avoid the temptation to conform to the world, Pope Francis cautioned Aug. 31, stressing that they should instead allow their faith to transform the world around them. “Christians…Continue Reading

Catholics, Keep Away, Lest You Hear What You Ought Not

The former president of Ireland Mary McAleese will deliver the Rosemary Goldie Lecture at Sydney Town Hall on Sunday week but local Catholics, it seems, are being discouraged from attending. The Catholic Weekly newspaper refused to take advertisements for the lecture which…Continue Reading

“Adopt a Christian from Mosul” to respond directly to Iraq’s emergency

AsiaNews is launching a fundraiser to support Christians targeted by the Islamic State, thus responding to a request by the Patriarch of Baghdad and Pope Francis’s urgent appeal “to guarantee all necessary assistance – especially the most urgently needed aid…Continue Reading

Federal Judge Blocks Texas Law That Would Stop Abortions at Most Facilities Across State

AUSTIN, Texas (AP) — A federal judge Friday threw out new Texas abortion restrictions that would have effectively closed more than a dozen clinics in the state. U.S. District Judge Lee Yeakel sided with clinics that sued over one of…Continue Reading

Tax-funded PBS To Air ‘After Tiller’ Documentary Glorifying Late-term Abortionists

Pro-life activists are up in arms after the taxpayer-funded Public Broadcasting System (PBS) announced it will air the pro-abortion documentary “After Tiller” – named for George Tiller, the notorious late-term abortionist who boasted of killing more than 60,000 unborn babies before he…Continue Reading

Outcry flares over California abortion push in Catholic colleges

August 27, 2014 “California Catholics are no longer safe to practice their faith within their own institutions.” Sacramento, Calif., Aug 26, 2014 / 03:02 pm (CNA/EWTN News).- Amid backlash from religious liberty and education advocates, Calif. Gov. Jerry Brown’s administration…Continue Reading

SATANIC ‘BLACK MASS’ GETS GREEN LIGHT FROM U.S. CITY

Concerns mount about ‘dark powers that this invites into our community’ The Catholic Archbishop of Oklahoma City has agreed to drop a lawsuit against a satanic cult that plans to perform a “black mass” in the city now that the…Continue Reading

California reverses: Catholic colleges must now pay for all abortions

baby

Two California Catholic universities must cover elective abortions in the health care plans they provide employees, according to a decision released Friday by Governor Jerry Brown. The affected schools are Loyola Marymount University and Santa Clara University. The decision comes…Continue Reading

Catholic Church Warns Pro-Lifers About Ice Bucket Challenge Donations

by Steven Ertelt | Washington, DC | LifeNews.com | 8/25/14 11:59 AM A Catholic Archdiocese is warning pro-life advocates about the final destination of donations for the popular Ice Bucket Challenge, which has become a pop culture and social media…Continue Reading

Why Top Catholic Education Organization Says Common Core Could Threaten Religious Liberty

Aug. 21, 2014 10:25pm Fred Lucas A leading Catholic education organization is warning that Common Core could pose a threat to religious freedom for Catholic schools that adopt the controversial education standards. The Cardinal Newman Society’s summer newsletter named among the 10 things…Continue Reading

It’s hard to engage in interfaith dialogue when your head has been cut off.

  By Benedict Kiely In times of evil, prophets who see it in what Ronald Knox called a “clear light” are not necessarily heeded, though they are desperately needed. Such a man was Hilaire Belloc, as Monsignor Knox described him at…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our new website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for over 145 years in our weekly print edition. Now we are introducing the online daily version of our print journal.


  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to subscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
 
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 145 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.

 
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1

'From our friends at The Foundry'


Today . . .

Pope At Santa Marta: The Authority Of Christian Identity

pope516

(Vatican Radio) A Christian’s authority comes from the Holy Spirit, not from human wisdom or degrees in theology, said Pope Francis at morning Mass Tuesday, as he explained that Christian identity is having the Spirit of Christ, not the “spirit of the world”. The people were astonished at Christ’s teaching because he spoke with authority. Inspired by the passage from…Continue Reading

Pope at Santa Marta: Find The Living Jesus In The Gospel

pope515

(Vatican Radio) We need to proclaim the Gospel with humility not with ‘wise words’ because Jesus Himself is the power of the Word of God, and only those who have an open heart can receive Him said Pope Francis Monday morning, as he resumed his daily mass at Santa Marta after the summer break. Commenting on the readings of the…Continue Reading

The Apparition At Knock, Ireland, August 1879

By DONAL ANTHONY FOLEY Part 2 (Editor’s Note: Part 1 of this article appeared in the August 28, 2014 issue of The Wanderer, p. 8B.) +    +    + The previous article looked at what happened during the apparition of Our Lady at Knock in Ireland, in August 1879, and this article will look at subsequent…Continue Reading

The Absent Father — A Meditation

By PHILIP TROWER I’m sure, like me, you have all found over the course of your life that something you have experienced or read, perhaps even long ago, suddenly comes into your mind in a way that throws hitherto unnoticed light on some passage or theme in the Gospels. In my case it is what…Continue Reading

A Decent Lawyer Should Tell Liberals They’re Damned Fools And Ought to Stop

By MICHAEL BARONE (Editor’s Note:     Michael Barone is a Fox News contributor and senior political analyst at the Washington Examiner [www.washingtonexaminer.com], where this article first appeared. Creators.com distributed the column. All rights reserved.) +    +    + “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools…Continue Reading

Christendom Alumna Leads In “Future Of Pro-Life Movement”

FRONT ROYAL, Va. — “I believe they are the real future of the pro-life movement,” Christendom College Alumna Mary Brand says of local crisis pregnancy centers. “It’s where the rubber hits the road.” A graduate of the class of 1998, Brand has been volunteering in pro-life work since she was in high school, from praying…Continue Reading

Senior Chaldean Official Says… Islamists Have Long Been Planning To Empty Iraq Of Christians

By FEDERICO CENCI ROME (ZENIT) — The year was 1840, when the Italian city of Otranto witnessed one of the most brutal massacres of Christians in history, perpetrated at the hands of Muslims. Eight hundred thirteen people perished in the 18 days of siege by the Ottoman army, bravely refusing to renounce their faith in…Continue Reading

Advertisement

Our Catholic Faith (Section B of print edition)

A Leaven In The World… The Natural And Supernatural “Keys Of The Kingdom”

By FR. KEVIN M. CUSICK In the Gospel of Holy Mass on a recent Sunday we heard again the beautiful and consoling words by which the Lord consigns a gift to Peter and his Successors for the benefit of us all: the “Keys of the Kingdom.” We learn that these “keys” open the doors of Heaven to us because of…Continue Reading

Priestly Celibacy: Unnatural? Or…Supernatural? The Levitical Priesthood

By RAYMOND DE SOUZA, KM Part 2 The second type of priesthood in the Old Testament was the Levitical priesthood. It was established by God on Mount Sinai — whereto Moses took the people to offer sacrifice to God. There is one aspect of the Levitical priesthood that is often overlooked by those who read the Bible through anti-celibacy eyes:…Continue Reading

God Reveals His Name

By DON FIER In last week’s installment of this series on the Catechism of the Catholic Church (CCC), we examined the fundamental significance of coming to know that all that we believe begins with God and ends with God. “I believe in God” is the first affirmation of the Apostles’ Creed, and likewise, Sacred Scripture begins with the words, “In…Continue Reading

Catholic Replies

Q. My nine-year-old grandson asked why, on August 15, the Gospel of Luke about the Visitation was read when it was the Feast of the Assumption. What should I tell him? — E.C., via e-mail. A. You can tell your grandson that there is no Gospel reading about the Assumption of Our Lady into Heaven because that event is not…Continue Reading

Justice And Charity

By FR. ROBERT ALTIER Twenty-Third Sunday In Ordinary Time (YR A) Readings: Ezek. 33:7-9 Romans 13:8-10 Matt. 18:15-20 In the second reading today, St. Paul tells us that we are to owe nothing to anyone except to love one another. The fact that St. Paul puts this into the category of something that is owed to another person is of…Continue Reading

Cast A Gauntlet – Sola Scriptura: Part 1

Catholic Heroes… Mary, The Mother Of God

By CAROLE BRESLIN I have a confession to make. It was not until I was nearly 40 years old that I learned about the liturgical calendar of the Roman Catholic Church. While I understood the seasons of Advent, Lent, and Easter, I never paid much attention to the feasts and the time of the year they were celebrated. For example,…Continue Reading

Catholic Heroes . . . St. John The Baptist

By CAROLE BRESLIN Thousands of years before the time of Christ, the Pharaoh of Egypt held the children of Israel in bondage. Our Lord proved His love for them when Moses led them out of Egypt. When Mary was carrying Jesus, she and Joseph, because of an imperial decree, had to travel to Bethlehem in order to be counted in…Continue Reading

What to Do If Your Boyfriend Wants You to Get an Abortion?

by Krisi Burton Brown | Washington, DC | LifeNews.com | 2/20/14 4:00 PM Washington, DC (LiveActionNews) — Note: This article is for any girl or woman who is feeling pressured into having an abortion. If you are a guy who is trying to find out how to stop an abortion, please see this article written for dads. 1.  Stand your…Continue Reading

It’s Time to Build Schools, from the Ground Up

February 13, 2014 by Anthony Esolen   It might have been worth repairing, if it had once been noble and beautiful, or at least conceived in an orderly way, for ordinary human purposes. But it wasn’t. It was constructed upon false principles. Its walls looked like those of a bad factory. It smelled like a warehouse. It could be terribly…Continue Reading

Why I am Pro-Life

February 4, 2014   Pro-Lifers   By Therese Recinella   Editor’s note. This tribute was posted on Therese Recinella’s Facebook account. She is graciously allowing us to reprint it in NRL News Today.   There are many things that I could say about my Dad, but what I want people to know is this: My parents faithfully raised 8 children…Continue Reading

Fathers . . . The Essential Role of the Father

Posted on February 10, 2014 by The Catholic Gentleman 13 Comments   Divorce rates skyrocketing; adultery rampant; non-married cohabitating couples; children abandoned by their fathers or mothers; “same-sex unions” adopting children and calling this the “modern family”; pornography invading homes, leading to powerful addictions and total alienation from other members of the family: all of this is a bird’s eye view…Continue Reading

How Much is One Billion Dollars?

This article appeared in the March 20, 1941 issue of The Wanderer. (Well, 70 years later we can add 15 trillion into the example.) Here’s a simple and homely illustration of what one billion dollars amounts to: Suppose we take an imaginary boy, aged 15 years, and assign to him the task of counting one billion dollars in one-dollar bills.…Continue Reading

Planned Parenthood

This article appeared in The Wanderer, April 3, 1941.  (WOW, Look what we have 70 years later.) A group which calls itself the National Committee for Planned Parenthood has begun a nationwide campaign to have the promotion of birth control included in State and national health programs. The committee—which, according to propaganda sheets reaching our desk has a branch in…Continue Reading

Questions of Non-Catholics . . . Answered by Father Richard Felix, O.S.B.

Reprinted from The Wanderer April 10, 1941 Why Does God allow us to be tempted? God allows us to be tempted so that we may prove our attachment to him and merit a higher place in heaven. Temptations are the lot of all men; they are the battle ground upon which heaven is won or lost. “The kingdom of heaven…Continue Reading