Judge Andrew P. Napolitano: Now the Post Office is spying on Americans — will our government ever behave?

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Twice last week, the federal government’s unconstitutional spying on ordinary Americans was exposed. One of these revelations was made by a federal judge in Washington, D.C., who wrote that the FBI is still using warrantless spying in criminal cases, notwithstanding the Constitution and federal laws. The other revelation was a surprise even to those of us who monitor these things — the United States Postal Service acknowledged that it has been spying on Americans.

Here is the backstory.

The modern American security state — the parts of the federal government that spy on Americans and do not change on account of elections — received an enormous shot in the arm in 1978 when Congress enacted the Foreign Intelligence Surveillance Act. That naively misguided and profoundly unconstitutional law was sold to Congress as a way to control the security state’s spying in the aftermath of Watergate. Watergate had revealed that President Richard M. Nixon used the FBI and the CIA to spy on real and imagined domestic political adversaries.

As the security state’s appetite for spying grew more voracious, its agents and lawyers persuaded the FISA court to lower the bar for issuing a surveillance warrant from communicating with a foreign agent to communicating with a foreign person, and to expand the scope of those warrants to include Americans who have communicated with other Americans who have communicated with foreign people. Under this procedure, if I call my cousins in Florence and then you call me, all of your calls could be surveilled.

Jealous of the ease with which America’s spies can obtain warrants from the FISA court, the FBI persuaded its friends on Capitol Hill to enact legislation that gives the FBI a peek at data the security state gathers — if it meets certain standards — to see if any of it pertains to criminal matters. Each one of these FBI peeks at raw intelligence data is known as a “share.”  

All of this was done in utter disregard of the Fourth Amendment requirements that no search warrants shall be issued without showing under oath probable cause of crime and that all warrants shall specifically describe the place to be searched and the person or thing to be seized.

If an FBI agent sees evidence of a non-national security crime on one of the shares, the agent will try to use it in a criminal prosecution, even though he acquired it in violation of the Fourth Amendment. If federal prosecutors want to introduce evidence from the share at trial, they need to find another source for it, as no judge will admit raw intelligence data obtained without a warrant in a criminal case.

After 9/11, President George W. Bush ordered the National Security Agency — the 60,000-person strong branch of the military that quarterbacks domestic spying — to capture every keystroke on every computer and the contents of every phone call in America. All presidents since Bush — even President Donald Trump, who was personally victimized by this spying — have continued the practice of universal, suspicionless, warrantless spying.

All this shows just how corrupted America’s security state has become under presidents of both parties. From counting 16,000 as if it were one, to hacking the texts and emails of people without articulable suspicion or probable cause, to orchestrating end runs around the Fourth Amendment, to lying to federal judges about all this — we see the tactics of the East German Stasi and Soviet KGB have been reborn on this side of the Atlantic.

Of what value is the constitutional guarantee of privacy if those we have hired to protect it are themselves undermining it?

CLICK HERE TO READ MORE FROM JUDGE ANDREW P. NAPOLITANO
 

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