Another CRomnibus Sneak Attack: 4th Amendment
‘Probable Cause’ Safeguard Eviscerated by Andrew
P. Napolitano
Is Government Faithful to the Constitution?
When the government is waving at us with its right hand, so to
speak, it is the government’s left hand that we should be watching. Just as a
magician draws your attention to what he wants you to see so you will not
observe how his trick is performed, last week presented a textbook example of
public disputes masking hidden deceptions. Here is what happened.
Last week was dominated by two huge news stories. One was the
revelation by the Senate Intelligence Committee of torture committed by CIA
agents and contractors on 119 detainees in the post-9/11 era – 26 of whom were
tortured for months by mistake. In that revelation of anguish and error were
the conclusions by CIA agents themselves that their torture had not produced
helpful information. President Barack Obama acknowledged that the CIA had
tortured, yet he directed the Department of Justice not to prosecute those who
tortured and those who authorized it.
The other substantial news story was the compromise achieved by
Congress and the White House to fund the government through the end of
September 2015. That legislation, which is 2,000 pages in length, was not read
by anyone who voted for it. It spends a few hundred billion dollars more than
the government will collect in tax revenue. The compromise was achieved through
bribery; members of Congress bought and sold votes by adding goodies (in the
form of local expenditures of money borrowed by the federal government) to the
bill that were never debated or independently voted upon and were added solely
to achieve the votes needed for passage. This is how the federal government
operates today. Both parties participate in it. They have turned the public
treasury into a public trough.
Hidden in the law that authorized the government to spend more
than it will collect was a part about funding for the 16 federal civilian
intelligence agencies. And hidden in that was a clause, inserted by the same
Senate Intelligence Committee that revealed the CIA torture, authorizing the
National Security Agency to gather and retain nonpublic data for five years and
to share it with law enforcement and with foreign governments. “Nonpublic data”
is the government’s language referring to the content of the emails, text
messages, telephone calls, bank statements, utility bills and credit card bills
of nearly every innocent person in America – including members of Congress,
federal judges, public officials and law enforcement officials. I say
“innocent” because the language of this legislation – which purports to make
lawful the NSA spying we now all know about – makes clear that those who spy
upon us needn’t have any articulable suspicion or probable cause for spying.
The need for articulable suspicion and probable cause has its
origins in the Fourth Amendment to the Constitution, which was written to
prohibit what Congress just authorized. That amendment was a reaction to the
brutish British practice of rummaging through the homes of American colonists,
looking for anything that might be illegal. It is also a codification of our
natural right to privacy. It requires that if the government wants nonpublic
data from our persons, houses, papers or effects, it must first present
evidence of probable cause to a judge and then ask the judge for a search
warrant.
Probable cause is a level of evidence that is sufficient to
induce a judge into concluding that it is more likely than not that the place
to be examined contains evidence of crimes. In order to seek probable cause,
the government must first have an articulable suspicion about the person or
place it has targeted. Were this not in the law, then nothing would stop the
government from fishing expeditions in pursuit of anyone it wants to pursue.
And fishing expeditions turn the presumption of liberty on its head. The
presumption of liberty is based on the belief that our rights are natural to us
and that we may exercise them without a permission slip from the government and
without its surveillance.
Until last week, that is. Last week, Congress, by authorizing
the massive NSA spying to continue and by authorizing the spies to share what
they have seized with law enforcement, basically permitted the fishing
expeditions that the Fourth Amendment was written to prevent.
How can the president and Congress defy the Constitution, you
might ask? Hasn’t every member of the government taken an oath to uphold the
Constitution? Doesn’t the Constitution create the presidency and the Congress?
How can politicians purport to change it?
The answers to these questions are obvious, as is the belief of
most of those in government that they can write any law and regulate any
behavior and ignore the Constitution they have sworn to uphold whenever they
want, so long as they can get away with it.
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.
To find out more about Judge Napolitano and to read features by other Creators
Syndicate writers and cartoonists, visit http://www.creators.com.
Source:http://davidstockmanscontracorner.com/another-cromnibus-sneak-attack-4th-amendment-probable-cause-safeguard-eviscerated/
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