Andrew P. Napolitano : The Truth Shall Keep Us Free

by Andrew P. Napolitano

Recently by Andrew P. Napolitano: Fidelity to the Constitution When We Need It

Which is more dangerous to personal liberty in a free society: a renegade who tells an inconvenient truth about government law-breaking, or government officials who lie about what the renegade revealed? That’s the core issue in the great public debate this summer, as Americans come to the realization that their government has concocted a system of laws violative of the natural law, profoundly repugnant to the Constitution and shrouded in secrecy.
The liberty of which I write is the right to privacy: the right to be left alone. The Framers jealously and zealously guarded this right by imposing upon government agents intentionally onerous burdens before letting them invade it. They did so in the Fourth Amendment, using language that permits the government to invade that right only in the narrowest of circumstances.
The linchpin of those circumstances is "probable cause" of evidence of crime in "the place to be searched, and the persons or things to be seized." If the government cannot tell a judge specifically what evidence of crime it is looking for and precisely from whom, a judge may not issue a search warrant, and privacy – the natural human yearning that comes from within all of us – will remain where it naturally resides, outside the government’s reach.
Congress is the chief culprit here, because it has enacted laws that have lowered the constitutional bar that the feds must meet in order for judges to issue search warrants. And it has commanded that this be done in secret.
And I mean secret.
The judges of the FISA court – the court empowered by Congress to issue search warrants on far less than probable cause, and without describing the places to be searched or the persons or things to be seized – are not permitted to retain any records of their work. They cannot use their own writing materials or carry BlackBerries or iPhones in their own courtrooms, chambers or conference rooms. They cannot retain copies of any documents they’ve signed. Only National Security Agency staffers can keep these records.
Indeed, when Edward Snowden revealed a copy of an order signed by FISA court Judge Roger Vinson – directing Verizon to turn over phone records of all of its 113,000,000 U.S. customers in direct and profound violation of the individualized probable cause commanded by the Constitution – Vinson himself did not have a copy of that order. Truly, this is the only court in the country in which the judges keep no records of their rulings.
At the same time that Vinson signed that order, NSA staffers, in compliance with their statutory obligations, told select members of Congress about it, and they, too, were sworn to secrecy. Oregon Democratic Sen. Ron Wyden was so troubled when he learned this – a terrible truth that he agreed not to reveal – that he mused aloud that the Obama administration had a radical and terrifying interpretation of certain national security statutes.
But he did more than muse about it. He asked Gen. James Clapper, the director of national intelligence, who was under oath and at a public congressional hearing, whether his spies were gathering data on millions of Americans. Clapper said no. The general later acknowledged that his answer was untruthful, but he claimed it was the "least untruthful" reply he could have given. This "least untruthful" nonsense is not a recognized defense to the crime of perjury.

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