by Andrew P. Napolitano
June 01, 2017
Antiwar.com

“The makers of our Constitution … conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” ~ Justice Louis D. Brandeis, 1928

After the Watergate era had ended and Jimmy Carter was in the White House and the Senate’s Church Committee had attempted to grasp the full extent of lawless government surveillance in America during the LBJ and Nixon years, Congress passed the Foreign Intelligence Surveillance Act. FISA declared that it provided the sole source for federal surveillance in America for intelligence purposes.

FISA required that all domestic intelligence surveillance be authorized by a newly created court, the Foreign Intelligence Surveillance Court. Since 1978, FISC has met in secret. Its records are unavailable to the public unless it determines otherwise, and it hears only from Department of Justice lawyers and National Security Agency personnel. There are no lawyers or witnesses to challenge the DOJ or the NSA.

Notwithstanding this handy constitutional novelty, the NSA quickly grew impatient with its monitors and began crafting novel arguments that were met with no resistance. Those arguments did away with the kind of particularized probable cause about targets of surveillance that the Constitution requires in favor of warrants based on the probability that someone somewhere in a given group could provide intelligence data helpful to national security, and because the FISC bought these arguments, the entire group could be spied upon. The FISC unleashed the NSA to spy on tens of millions of Americans.

That was still not enough for the nation’s spies. So beginning in 2005, then-President George W. Bush permitted the NSA to interpret President Ronald Reagan’s executive order 12333 so as to allow all spying on everyone in the U.S., all the time. The NSA and Bush took the position that because the president is constitutionally the commander in chief of the military and because the NSA is in the military, both the president and the NSA are lawfully independent of FISA.

The NSA does not acknowledge any of this, but we know from the Edward Snowden revelations and from the testimony of a former high-ranking NSA official who devised many of the NSA programs that this is so.

The NSA’s use of FISC-issued warrants is only one of a half-dozen tools that the NSA uses, but it is the only tool that the NSA publicly acknowledges. FISC-issued warrants do not name a person as a suspect; they name a category. For example, it could be customers of Verizon, which includes 115 million people. It could be telephones and computers located at 721-725 Fifth Ave. in New York; that’s Trump Tower. It could be all electronic devices in the 10036 ZIP code; that’s midtown Manhattan.

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