by Andrew P. Napolitano, Lew Rockwell:
What if the federal government captures in real time the contents of every telephone call, email and text message and all the fiber-optic data generated by every person and entity in the United States 24/7/365? What if this mass surveillance was never authorized by any federal law?
What if this mass surveillance has come about by the secret collusion of presidents and their spies in the National Security Agency and by the federal government’s forcing the major telephone and computer service providers to cooperate with it? What if the service providers were coerced into giving the feds continuous physical access to their computers and thus to all the data contained in and passing through those computers?
What if President George W. Bush told the NSA that since it is part of the Defense Department and he was the commander in chief of the military, NSA agents could spy on anyone, notwithstanding any court orders or statutes that prohibited it? What if Bush believed that his orders to the military were not constrained by the laws Congress had written or the interpretations of those laws by federal courts or even by the Constitution?
What if Congress has written laws that all presidents have sworn to uphold and that require a warrant issued by a judge before the NSA can spy on anyone but Bush effectively told the NSA to go through the motions of getting a warrant while spying without warrants on everyone in the U.S. all the time? What if Presidents Barack Obama and Donald Trump have taken the same position toward the NSA and ordered or permitted the same warrantless and lawless spying?
What if the Constitution requires warrants based on probable cause of criminal behavior before surveillance can be conducted but Congress has written laws reducing that standard to probable cause of communicating with someone who has communicated with a foreign national? What if a basic principle of constitutional law is that Congress is subject to the Constitution and therefore cannot change its terms or their meanings?
What if the Constitution requires that all warrants particularly describe the place to be searched or the person or thing to be seized? What if the warrants Congress permits the NSA to use violate that requirement by permitting a federal court to issue general warrants? What if general warrants do not particularly describe the place to be searched or the person or thing to be seized but rather authorize the bearer to search indiscriminately through service providers’ customer data?
What if most Americans have offered the view that they have nothing to hide from the government? What if the government has no moral, constitutional or legal right to personal information about and from all of us without a valid search warrant consistent with constitutional requirements?
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