Government Criminals vs. a Truth-Teller

The Truth Shall Keep Us Free

Andrew P. Napolitano

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

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.

After we learned
that the feds are spying on nearly all Americans, that they possess
our texts and emails and have access to our phone conversations,
Gen. Keith Alexander, who runs the NSA, was asked under oath whether
his spies have the ability to read emails and listen
to telephone calls. He answered, “No, we don’t have that authority.”
Since the questioner — FBI agent turned Congressman Mike Rogers
— was in cahoots with the general in keeping Americans in the dark
about unconstitutional search warrants, there was no follow-up question.
In a serious public interrogation, a committee chair interested
in the truth would have directed the general to answer the question
that was asked.

Since that
deft and misleading act, former NSA staffers have told Fox News
that the feds can read any email and listen to any phone call, and
Alexander and Rogers know that. So Alexander’s “no,” just
like his boss’s “no,” was a lie at worst and seriously
misleading at best.

This is not
an academic argument. The oath to tell the truth — “the whole
truth and nothing but the truth” — also makes those who intentionally
mislead Congress subject to prosecution for perjury.

President Obama
is smarter than his generals. He smoothly told a friendly interviewer
and while not under oath that the feds are not listening to our
phone calls or reading our emails. He, of course, could not claim
that they lack the ability to do so, because we all now know that
he knows they can.

These Snowden
revelations continue to cast light on the feds when they prefer
darkness. Whatever one thinks of Snowden’s world-traveling odyssey
to avoid the inhumane treatment the feds visited upon Bradley Manning,
another whistleblower who exposed government treachery, he has awakened
a giant. The giant is a public that has had enough of violations
of the Constitution and lies to cover them up. The giant is fed
up with menial politicians and their media allies demonizing the
messenger because his message embarrasses the government by revealing
that it is unworthy of caring for the Constitution.

Think about
that: The very people in whose hands we have reposed the Constitution
for preservation, protection, defense and enforcement have subverted

Snowden spoke
the truth. Knowing what would likely befall him for his truthful
revelations and making them nevertheless was an act of heroism and
patriotism. Thomas Paine once reminded the Framers that the highest
duty of a patriot is to protect his countrymen from their government.
We need patriots to do that now more than ever.

with the author’s permission.

June 27, 2013

Andrew P.
Napolitano [send
him mail
], 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
and Woodrow: How Two American Presidents Destroyed Constitutional
. To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and cartoonists, visit

© 2013 Andrew P. Napolitano

Best of Andrew Napolitano

This article originally appeared on: Lew Rockwell