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Thursday, November 7, 2013

End runs around the Constitution -- By Andrew P. Napolitano, The Washington Times

The NSA destroys more liberty than it preserves

Two weeks ago, we learned that the National Security Agency (NSA) has been spying on the chancellor of Germany and on the president of the United States. Last week, we learned that it has spied on the pope and on the conclave that elected him last March. This week, we learned that it also has spied on the secretary-general of the United Nations and has hacked into the computer servers at Google and Yahoo.

What's going on?

President Obama, who has yet to address these outrages to serious questioners, must know of them because, apparently, he has gotten into the habit of wanting to know in advance what is on the minds of those with whom he is scheduled to meet. The New York Times reported recently that it learned from NSA whistleblower Edward Snowden that the NSA happily told Mr. Obama what U.N. Secretary-General Ban Ki-moon was planning to ask him well in advance of when he asked it. The NSA could have learned that only from its surveillance of the secretary-general's personal cellphone calls, emails and texts. It seems the NSA is providing this service to its clients, and chief among them is the president.

Also among them are other parts of the government, such as the Department of Justice, the Internal Revenue Service, the FBI and the Department of Homeland Security. This is where we find even more dangers to personal freedom than the constitutional violations and personal privacy outrages visited on all Americans and on foreign officials. The NSA claims it can operate outside the restraints of the Fourth Amendment. The NSA and its congressional apologists have argued that the agency is not constrained by the Fourth Amendment because its task is essentially to gather foreign intelligence for national security purposes only. Further, they say the Fourth Amendment, which requires detailed language in search warrants particularly describing the person or place to be searched and the person or thing to be seized, only restrains the government when it is engaged in criminal prosecutions and not when it is on a fishing expedition for intelligence purposes.

Yet, the plain language of the Fourth Amendment protects everyone in America from government intrusion in their persons, houses, papers and effects, whether the government is looking for evidence of crimes or for evidence of sophistry. The NSA's argument that the Fourth Amendment only regulates criminal prosecutions is nonsense. It never has seriously been accepted by the Supreme Court, and it defies what we now know about the client list of the NSA. Its clients consist surely of the 15 or so other intelligence agencies in the federal government. But its clients are also the premiere federal agencies that decide who to prosecute. In order to decide who to prosecute, these agencies need to examine evidence. And if the evidence they are examining has come through extra-constitutional means, these agencies are destroying the fabric of liberty they have sworn to uphold, which includes the use of only lawfully and constitutionally gathered evidence.

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