The Chickens Have Come Home To Roost

The Chickens Have Come Home To Roost

By Judge Andrew P. Napolitano
Information Clearing House.com
February 24, 2017

Last week, The Wall Street Journal revealed that members of the
intelligence community — part of the deep state, the unseen
government within the government that does not change with
elections — now have acquired so much data on everyone in
America that they can selectively reveal it to reward their friends
and harm their foes.

Their principal foe today is the president of the United States.

Liberty is rarely lost overnight.

The wall of tyranny often begins with benign building blocks of
safety — each one lying on top of a predecessor — eventually
collectively constituting an impediment to the exercise of free
choices by free people, often not even recognized until it is too
late.

Here is the back story.

In the pre-Revolutionary era, British courts in London secretly
issued general warrants to British government agents in America.

The warrants were not based on any probable cause of crime or
individual articulable suspicion; they did not name the person or
thing to be seized or identify the place to be searched.

They authorized agents to search where they wished and seize
what they found.

The use of general warrants was so offensive to our Colonial
ancestors that it whipped up more serious opposition to British rule
and support for the revolutionaries than the "no taxation without
representation" argument did.

And when it came time for Americans to write the Constitution,
they prohibited general warrants in the Fourth Amendment, the
whole purpose of which was to guarantee the right to be left alone
by forcing the government to focus on bad guys and prohibit it from
engaging in fishing expeditions.

But the fishing expeditions would come.

In 1978, Congress passed the Foreign Intelligence Surveillance Act,
which was intended to rein in the government spying on Americans
that had been unleashed by the Nixon administration.

FISA established a secret court and permitted it to issue warrants
authorizing spying on agents of foreign governments when
physically present in the United States.

People born in foreign countries who are here for benevolent
or benign or even evil purposes have the same constitutional
protections as those of us born here.

That's because the critical parts of the Constitution that insulate
human freedom from the government's reach protect "persons,"
not just citizens. But FISA ignored that.

And FISA was easy for the government to justify. It was a pullback
from Richard Nixon's lawlessness.

It required the feds to seek a warrant from federal judges. The
targets were not Americans.

Never mind, the argument went, that FISA has no requirement of
showing any probable cause of crime or even articulable suspicion
on the part of the foreign target; this will keep us safe.

Besides, the government insisted, it can't be used against
Americans.

That argument was bought by presidents, members of Congress
and nearly all federal courts that examined it.

We don't know whether the authors of this scheme really wanted
federal spies to be able to spy on anyone at will, but that is where
we are today.

Through secret courts whose judges cannot keep records of their
own decisions and secret permissions by select committees of
Congress whose members cannot tell their constituents or other
members of Congress what they have learned in secret, FISA has
morphed so as to authorize spying down a slippery slope of targets,
from foreign agents to all foreigners to anyone who communicates
with foreigners to anyone capable of communicating with them.

The surveillance state regime today permits America's 60,000
military and civilian domestic spies to access in real time all the
landline and mobile telephone calls and all the desktop and mobile
device keystrokes and all the digital data created and used by
anyone in the United States.

The targets today are not just ordinary Americans; they are justices
on the Supreme Court, military brass in the Pentagon, agents in the
FBI, local police in cities and towns, and the man in the Oval Office.

The British system that arguably impelled our secession in 1776
is now here on steroids.

Enter the outsider as president.

Donald Trump has condemned the spying and leaking, as he is a
victim of it.

While he was president-elect, the spies told him they knew of his
alleged misbehaviors — vehemently denied — in a Moscow hotel
room.

Last week, his White House staff was shaken by what the
spies did with what they learned from a former Trump aide.

Trump's former national security adviser, retired Lt. Gen.
Michael Flynn, himself a former military spy, spoke to the
Russian ambassador to the United States in December via
telephone in Trump Tower.

It was a benign conversation. He knew it was being monitored,
as he is a former monitor of such communications.

But he mistakenly thought that those who were monitoring him
were patriots as he is.

They were not.

They violated federal law by revealing in part what Flynn had said,
and they did so in a manner to embarrass and infuriate Trump.

Why would they do this?

Perhaps because they feared Flynn's being in the White House,
since he knows the power and depth of the deep state.

Perhaps to send a message to Trump because he once compared
American spies to Nazis.

Perhaps because they believe that their judgment of the foreign
dangers America faces is superior to the president's.

Perhaps because they hate and fear the outsider in the
White House.

The chickens have come home to roost.

In our misguided efforts to keep the country safe, we have
neglected to keep it free.

We have enabled a deep state to become powerful enough
to control a powerful president.

We have placed so much data and so much power in the hands
of unelected, unaccountable, opaque spies that they can use it
as they see fit — even to the point of committing federal felonies.

Now some have boasted that they can manipulate and thus control
the president of the United States by selectively revealing and
concealing what they know about anyone, including the president
himself.

This is a perilous state of affairs, brought about by the maniacal
passion for surveillance spawned under George W. Bush and
perfected under Barack Obama — all with utter indifference to the
widespread constitutional violations and permanent destruction of
personal liberties.

This is not the government the Framers gave us.

But it is one far more dangerous to human freedom than the one
from which they seceded in 1776.