NSA spies pick up interference from the Constitution -- By Andrew P. Napolitano, The Washington Times

(Illustration by Alexander Hunter, The Washington Times)

Fourth Amendment says Obama is not at liberty to collect metadata"

Almost Orwellian" — that's the description a federal judge gave earlier this week to the massive spying by the National Security Agency (NSA) on virtually all 380 million cellphones in the United States.

In the first meaningful and jurisdictionally grounded judicial review of the NSA cellphone 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 cellphone 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 instruments of tyranny.

It is against this well-known historical context that Judge Leon engaged in his analysis of the feds who spy on us. This is truly the first jurisdictionally based judicial ruling on the cellphone 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 not only found the NSA cellphone spying to be constitutional, but also authorized it, those judges were performing a statutory clerical function, not a constitutional jurisdictionally based judicial function.


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