Andrew P. Napolitano on the Patriot Act’s destruction of the Fourth Amendment wall between law enforcement and spying.
School of the Americas protest, November 2006. (Ashleigh Nushawg, Flickr, CC BY 2.0)
By Andrew P. Napolitano
Among the lesser-known holes in the U.S. Constitution cut by the Patriot Act of 2001 was the destruction of the “wall” between federal law enforcement and federal spies.
The wall was erected in the Foreign Intelligence Surveillance Act of 1978, which statutorily limited all federal domestic spying to that which was authorized by the Foreign Intelligence Surveillance Court (FISA).
The wall was intended to prevent law enforcement from accessing and using data gathered by America’s domestic spying agencies.
Government spying is rampant in the U.S., and the feds regularly engage in it as part of law enforcement’s well-known antipathy to the Fourth Amendment.
Last week, the F.B.I. admitted as much when it raided the home of former chief U.N. weapons inspector Scott Ritter. Scott is a courageous and gifted former Marine. He is also a fierce and articulate antiwar warrior.
Here is the backstory.
After President Richard Nixon resigned the presidency, Congress investigated his use of the F.B.I. and C.I.A. as domestic spying agencies. Some of the spying was on political dissenters and some on political opponents. None of it was lawful.
What is lawful spying? The modern Supreme Court has made it clear that domestic spying is a “search” and the acquisition of data from a search is a “seizure” within the meaning of the Fourth Amendment.
That amendment requires a warrant issued by a judge based on probable cause of crime presented under oath to the judge for a search or seizure to be lawful. The amendment also requires that all search warrants specifically describe the place to be searched and the person or thing to be seized.
Colonial-Era General Warrants
The language in the Fourth Amendment is the most precise in the Constitution because of the colonial disgust with British general warrants. A general warrant was issued to British agents by a secret court in London. General warrants did not require probable cause, only “governmental needs.” That, of course, was no standard whatsoever, as whatever the government wants it will claim that it needs.
General warrants authorized government agents to search wherever they wished and to seize whatever they found — stated differently, to engage in fishing expeditions.
FISA required that all domestic spying be authorized by the new and secret FISA Court. Congress then unconstitutionally lowered the probable cause of crime standard for the FISA Court to probable cause of speaking to a foreign agent, and it permitted the FISA Court to issue general warrants.
Yet, the FISA compromise that was engineered in order to attract congressional votes was the wall. The wall prohibited whatever data was acquired from surveillance conducted pursuant to a FISA warrant to be shared with law enforcement.
So, if a janitor in the Russian embassy was really an intelligence agent who was distributing illegal drugs as lures to get Americans to spy for him, any telephonic evidence of his drug dealing could not be given to the F.B.I.
The purpose of the wall was not to protect foreign agents from domestic criminal prosecutions; it was to prevent American law enforcement from violating personal privacy by spying on Americans without search warrants.
President George W. Bush signing the USA Patriot Act in the White House on Oct. 26, 2001. (U.S. National Archives)
Fast forward to the weeks after 9/11 when, with no serious debate, Congress enacted the Patriot Act. It removed the wall between law enforcement and spying. And by 2001, the FISA Court had on its own lowered the standard for issuing a search warrant from probable cause of speaking to a foreign agent to probable cause of speaking to a foreign person.
This, too, was unlawful and unconstitutional.
The language removing the wall sounds benign, as it requires that the purpose of the spying must be national security and the discovered criminal evidence — if any — must be accidental or inadvertent. In January 2023, the F.B.I. admitted that it intentionally uses the C.I.A. and the NSA to spy on Americans as to whom it has neither probable cause of crime nor even articulable suspicion of criminal behavior.
Articulable suspicion is the linchpin of commencing all criminal investigations. Without requiring suspicion, we are back to fishing expeditions.
The FBI’s New Rulebook
The F.B.I.’s admission that it uses the C.I.A. and the NSA to spy for it came in the form of a 906-page F.B.I. rulebook written during the Trump administration, disseminated to federal agents in 2021 and made known to Congress last year.
Last week, when F.B.I. agents searched Ritter’s home in upstate New York, in addition to trucks, guns, a SWAT team and a bomb squad, they arrived with printed copies of two years’ of Ritter’s emails and texts that they obtained without a search warrant.
Ritter in August 2002. (C-Span screenshot)
To do this, they either hacked into Ritter’s electronic devices — a felony — or they relied on their cousins, the C.I.A. and the NSA, to do so, also a felony.
But the C.I.A. charter prohibits its employees from engaging in domestic surveillance and law enforcement. Nevertheless, we know the C.I.A. is physically or virtually present in all of the 50 U.S. statehouses. And the NSA is required to go to the FISA Court when it wants to spy.
We know that this, too, is a charade, as the NSA regularly captures every keystroke triggered on every mobile device and desktop computer in the U.S., 24/7, without warrants.
The search warrant for Ritter’s home specified only electronic devices, of which he had three. Yet, the 40 F.B.I. agents there stole a truckload of materials from him, including his notes from his U.N. inspector years in the 2000s, a draft of a book he is in the midst of writing and some of his wife’s personal property.
The invasion of Scott Ritter’s home was a perversion of the Fourth Amendment, a criminal theft of his private property and an effort to chill his free speech. But it was not surprising.
This is what has become of federal law enforcement today. The folks we have hired to protect the Constitution are destroying it.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2024 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
“It is no measure of health to be well-adjusted to a profoundly sick society.” Krishnamurti . RIP Aaron Bushnell and those who resist and stand firm grounded in moral sanity and solid integrity.
Wonderful to read an article by Judge Napolitano here! Wonders never cease! but such a sad story. I watch your Judging Freedom every day and the interviews wonderful as with Ray McGovern, Scott Ritter, etc. Thanks Judge from New Jersey from me long ago Flatbush Brooklyn gal.
… so, if THEY are out to destroy what’s left
of the constitution, can WE still stop them?
it’s way beyond mind-boggling to witness
the speed at which what we once considered
valuable achievements towards justice for all
are being dismantled, one by one …
not just in the US of CIA. in my EU country, too.
in any case: thank you very much for your clarifications
and for putting things into perspective, judge napolitano.
[wishing scott ritter and his wife all the strength
they need to wither this storm + the ones to come.]
Shades of the infamous Star Chamber trials held in England in the 15th. through 17th. centuries. Lock’em up and throw away the key, tell no one where they are, and provide them with no opportunity to face their accusers. Yep, that’s our good old U.S.A. The government runs as an independent entity, as completely separated from the people as possible. It has broken every part of the Constitution that might benefit the people. Inside the Beltway they have pulled up the drawbridge and stocked the moat with alligators. We may say “Power to the People”, but our government says, “Screw the People.”
I post this relatively frequently since it is so apropos. From the 1960s
Paranoia strikes deep
into your lives it will creep
It starts when you’re always afraid
Step outta line the man come and take you away
You better stop children, what’s that sound?
Everybody look what’s going down….
Thank you, Judge. This is why I watch your show regularly.
Compare Scott Ritter’s being paid by a foreign country for his journalism or writing with all the many politicians and US government employees who hold a duel citizenship with Israel. Why are these
people not treated the same by the FBI? Not to mention the Supreme Court allowing donations
from foreign countries (or even AIPAC) being made to politicians. Where is justice?
Thank You Andrew
Those of heretofore very nearly entirely censored by “the people’s” government, disguised as USuAl A.I. internet search engines and their “influencers”, wish to thank Judge Napolitano, and his extensive guests. Some of us have perused truths submitted by Ritter since
U.N. inspector, and Wilkerson, since his work with Powell. Mearsheimer and others are also lucid. In other words, standing up against
neocon war criminals back to, and through, bush-cheney versions. It is a good time to recall Adam Curtis, “The Power Of Nightmares” series, in-depth view of how, since when, (and from incredible arrays of insiders) it has come to this…realizing as we all must, that climate devolutions are intended be disinformed, misinformed.
Scott Ritter is a traitor to the Empire of LIES AND GENOCIDE.
Scott Ritter opposes the Empire’s agenda of LIES AND GENOCIDE.
Scott Ritter refused to be bribed by the Deep State.
What is wrong with Scott Ritter?
Hint: it could be a dangerous mental illness called Integrity
I have the solution to Ritter’s current difficulties. It is this:
War, War, War.
Hate, Hate, Hate.
Two minutes of Hate against Putin, Xi and all Palestinians each day,
Keeps the Ministry of Truth militarised Goon Squads away.
Ritter has the absurd temerity to promote love for all humanity and he strives for Peace on Earth.
He is therefore a huge danger to all redblooded apple pie eating Americans.
Makes me so angry, I am about to burst an aneurysm.
More standing ovations for SatanYahoo, lies and genocide!
War, War, War.
Hate, Hate, Hate
This helpful message brought to you by Stinkin’ Blinken, Jerkoff Sullivan, Droolin’ Nuland, Smellin’ Yellen, Lloyd Raytheon, Lindsay Graycunt, John Bolturd and the old gang of warcrims who brought you Operation Iraqi Liberation (OIL) in 2003
Yes, the rot runs deep.
One picture, and realization obamaFAIL to hold war crimes – war criminals accountable, having chosen worse than bush-chcney biden to assuage his AIPAC deficit (picture of biden awarding bush with “Medal of Freedom”) defines biden administration war criminal neocons:
(In An Insane World, Madness Looks Moderate And Sanity Looks Radical) Caitlin, introducing Harris “Same As It Ever Was”
hxxps://caityjohnstone.medium.com/in-an-insane-world-madness-looks-moderate-and-sanity-looks-radical-635d9a3dce95
It’s funny how certain people can see the potential consequences of actions taken.
“A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy – A republic replied the Doctor if you can keep it.”
“…Two minutes of Hate against Putin, Xi and all Palestinians each day,
Keeps the Ministry of Truth militarised Goon Squads away…”
Cheers Eric! you should write songs.