Revenge of the Deep State - The unseen government within the government has so much data on Americans that it can reward or punish at its own discretion
Revenge of the Deep State
The unseen government within the government has so much
data on Americans that it can reward or punish at its own discretion.
By Andrew Napolitano Feb. 23, 2017 12:01 am
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 (FISA), 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.
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