The Government and Freedom

Earlier this week, FBI Director James Comey gave an interview to "60 Minutes" during which he revealed a flawed understanding of personal freedom. He rightly distinguished what FBI agents do in their investigations of federal crimes from what the NSA does in its intelligence gathering, when the two federal agencies are looking for non-public data.

The FBI requires, Comey correctly asserted, articulable suspicion to commence an investigation and probable cause to obtain a search warrant. It does this because its agents have sworn an oath to uphold the Constitution, and their failure to comply with that oath may very well render the evidence obtained by unconstitutional means useless in court.

The NSA, as we know, makes no pretense about presenting probable cause to a judge. Rather, it asks a judge on a secret court (so secret that the judges themselves are kept from the court's files) for general warrants. A warrant based on probable cause must specifically describe the place to be searched and the person or thing to be seized. General warrants, which the Constitution prohibits, permit the bearer to search wherever he wishes and seize whatever he finds.

British government agents and soldiers used general warrants issued by a secret court in London to invade the privacy of the colonists. The British also used another tool now prohibited by the Constitution -- called writs of assistance -- which permitted certain agents and soldiers to write their own search warrants and serve them upon the colonists. This was done, it was argued, because London was too far from America and the British claimed an urgent need to search colonial homes to determine whether the owners had paid the king's taxes. The British use of general warrants and agent-written warrants became arguably the last straws that tipped colonial minds toward revolution.

Comey knows that if his agents get caught violating the Constitution, their searches will be fruitless. Yet, he conveniently failed to reveal in his interview that under the Patriot Act, his agents can and do write their own search warrants -- just as British agents and soldiers did. The Patriot Act calls these warrants by the euphemism "national security letters."

A national security letter is a search warrant in which one federal agent authorizes another federal agent to search for and retrieve data held by third parties. The list of third parties that can be subjected to an agent-written search warrant includes virtually all entities required by law to keep records, such as telephone providers, banks, lawyers, physicians, hospitals, supermarkets, utility companies, credit card companies and computer service providers; the list is nearly endless. Five federal judges have held this section of the Patriot Act to be a violation of the Fourth Amendment (which provides that only judges may issue search warrants) and thus unconstitutional.

The Patriot Act also prohibits the recipient of an agent-written search warrant from telling anyone about it -- that includes a lawyer in confidence, a priest in confession, a spouse in the home, even a judge in open court. It is this section of the Patriot Act that is being challenged by Twitter and Google in the Ninth Circuit Court of Appeals in California.

Twitter and Google have apparently received many of these unconstitutional agent-written warrants, and they want their customers to know what the government is doing. Two federal judges already have found this section of the Patriot Act to be violative of the First Amendment ("Congress shall make no law ... abridging the freedom of speech.") and thus unconstitutional.

The Patriot Act is the most unconstitutional legislation since the Alien and Sedition Acts of 1798, which proscribed speech critical of the government; yet the FBI loves it. Its premise is that in dangerous times, if we surrender our freedoms to the government, the government will keep us safe until the danger passes. This is a flawed argument.

The Declaration of Independence recognizes the continuous possession of personal freedoms ("endowed by their Creator with certain inalienable rights"), and thus they cannot be stolen by a majority vote in Congress, but only surrendered by a personal, intentional, knowing choice. And history teaches that government does not return freedoms once stolen or surrendered. Without freedom, who will protect us from the government?

The government can't deliver the mail, pave potholes, balance the budget, fairly collect taxes, protect us from Ebola, even tell the truth. Who would trust it with personal freedoms?

Since 2001, Comey's agents have written more than half a million of their own search warrants, and their targets don't even know what was done to them. He will argue that if the evidence from these agent-written warrants is not used in court, there is no harm to the unknowing victim, and hence no foul. Yet the Constitution was written to keep the government from interfering with our natural rights even when it does so in secret, because no government violation of inalienable rights is harmless.

Thanks for posting.

America's Founders understood that it was the ideas underlying the Constitution, and citizen understanding of those ideas, which would be essential to preservation of individual liberty. President Washington's "Farewell Address" contained warnings about what he called the "Spirit of Party" and the ability of potential future leaders to endanger liberty.

In considering the question posed by this thread citing Judge Napolitano's points, might Washington's words might be considered cautionary?

Here is a small excerpt from that Address containing pointed references to the dilemma America may face now, when attempts may be made to "alter" the Constitution's clear restraints on power. He warned of the dangers to liberty of factions and parties and leaders who might be "more artful" than others.

"However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.
"Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that for the efficient management of your common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprises of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.
"I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.
"This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.
"The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.
"Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.
"It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.
"There is an opinion that parties in free countries are useful checks upon the administration of the government and serve to keep alive the spirit of liberty. This within certain limits is probably true; and in governments of a monarchical cast, patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.
"It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.
"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
"It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?
"Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened." - Excerpted from George Washington's Farewell Address

Note: Underlining added for emphasis.

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