On the eve of America’s 250th anniversary, Americans are asked to accept and pay for a government that knows more about us than we do about it, writes Andrew P. Napolitano.
Spies in D.C., code name ‘Giddy Up.‘ (Lorie Shaull, Flickr, CC BY 2.0)
When President Donald Trump appointed an obviously unqualified friend, a home builder executive, to be acting director of national intelligence, he inadvertently triggered attention to Section 702 of the Foreign Intelligence Surveillance Act.
The director of national intelligence is the head of the umbrella agency that gathers intelligence from the 17 federal spying agencies and from that data prepares and delivers the president’s daily briefing. Sec. 702, which permits warrantless spying, expires this month.
Trump prefers to receive his briefings directly from the C.I.A. and its foreign colleagues, leaving the DNI as an appendage with little to do.
Nevertheless, the DNI employs hundreds of spies and analysts, and most of them have national security clearances that permit them to view the nation’s most closely guarded secrets and to invade anyone’s privacy.
Section 702 of FISA theoretically permits federal agents to spy without warrants or suspicion on foreign persons. In reality, it is used as a fig leaf to spy on Americans.
A few years ago, Department of Justice lawyers persuaded the FISA court secretly to permit the National Security Agency — America’s domestic spies — to spy on Americans with whom foreign persons communicate; even suspicionless Americans whose communications with foreigners are benign; even Americans removed by six degrees from conversations with foreigners.
Before & After 9/11
Lower Manhattan skyline after a Boeing 767 hit the World Trade Towers on Sept. 11, 2001. (Michael Foran, CC BY 2.0, Wikimedia Commons)
Before 9/11, no one in law enforcement was permitted access to data obtained outside the restraints imposed by the Fourth Amendment to the Constitution.
Those restraints prohibit searches and seizures — in the modern parlance, surveillance and data acquisition — without a search warrant issued by a judge based on probable cause of crime, sworn to under oath. And the warrant itself must specifically describe the places to be searched and the persons or things to be seized.
Since 9/11, the wall between surveillance and law enforcement has collapsed even though the feds still maintain that the Fourth Amendment only regulates law enforcement and not surveillance. This wild proposition is defied by the plain language of the amendment, which protects all persons from all government, and by the history of the colonists dealing with British government agents executing general warrants issued by a secret court in London.
Those warrants permitted the bearers to arrest whomever they wished, to search wherever they chose and to seize whatever they found. Under the pretext of looking for evidence of crimes, like failing to comply with the Stamp Act, these agents were truly looking for what the king considered subversive, like a draft of the Declaration of Independence.
James Madison and his colleagues who drafted the Fourth Amendment surely knew that history and shared the near universal colonial revulsion at general warrants. Hence the requirements in the amendment for probable cause of crime sworn to before the warrant-issuing judge, and specificity in the warrant itself.
All of this was crafted to outlaw general warrants, and protect all persons in America from warrantless government assaults and invasions of their “persons, houses, papers, and effects.”
Back to FISA
President Richard Nixon, trying to head off impeachment over Watergate, releases edited transcripts of his Oval Office tapes on April 29, 1974. (National Archives / Public Domain)
Now, back to FISA. FISA was crafted in reaction to President Richard Nixon’s use of the C.I.A. and F.B.I. for warrantless domestic surveillance purposes. This was spying on Americans — opponents of the Vietnam War and Nixon’s political opponents — which as we all now know came crashing down on Nixon in the Watergate scandal.
FISA itself is deeply flawed. Rather than simply criminalizing all warrantless surveillance, it lowered the standard for authorizing surveillance and data acquisition, i.e., searches and seizures, from probable cause of crime — Madison’s gold standard for protecting privacy — to probable cause of communicating with a foreign person, a standard that by its nature implicates innocent Americans, unnamed in FISA warrants.
One infamous FISA warrant authorized the feds to seize the telephone records of all Verizon customers, some 115 million at the time.
But there is another side to this fig leaf. According to former NSA agents, FISA itself is a charade, as the domestic spies and their international cousins — that’s the NSA and the C.I.A. — have a manifest indifference to constitutional norms. Stated differently, they don’t care about the Fourth Amendment or probable cause. They spy on whomever they wish whenever they choose and seize whatever data they can.
If these former NSA agents are correct — I have known them for many years and I believe them — we have come full circle from the general warrant days; all under the guise of FISA. FISA is pernicious not only because of its unconstitutional lowering of the standard for judicially issued searches and seizures, it is pernicious because the NSA and the C.I.A. — the latter prohibited by federal law from spying in the U.S. and from engaging in law enforcement — pretend to be complying with FISA court orders, all the while spying on whomever they choose; and lying about it.
Section 702 is a symbol, but it is not substantive. Stated differently, the spies will spy on us with or without 702 until we have a president who stops them; and survives. The battle over 702 is symbolic of authoritarians versus constitutionalists, but its demise will just drive the spies deeper into the deep state.
Section 702 has come to stand for the power and fear the intelligence community wields over the executive branch that employs it and the Congress that funds and approves it.
On the eve of America’s 250th anniversary, we are asked to accept and pay for a government that knows more about us than we do about it. One whose rapacious and insatiable appetite for knowing our thoughts, impressions, feelings and emotions far exceeds anything the British agents sought from the colonists who fought a bloody revolution over this.
The values that underlie the Fourth Amendment — the sovereignty of the individual, the right to be left alone, the promise of limited government — have been rejected by the folks Americans hired to protect them. But they are human values. And they will not rest.
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 2026 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.
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The eminent Napolitano deserves to be lauded for his authentic, if not also authoritative, but crisp write-up on how legal security apparatus gradually begin even illegally encroaching upon and undermining individual privacy and even private space. Furthermore, he lends it infamous pedigree by rightly anchoring it within U.S.’ own colonial history by tracing its British links if not also roots and implicitly hinting at its covert Zionistic overlords. To be fair, the Fourth Amendment, FISA and Section 702 are all what make the U.S. exceptional in many ways and gives the U.S. system the “checks and balance” credential silently beloved by many across the rest of humanity. Basically, it all boils down to : who will watch over the Watchdogs ? ; especially when they eventually slip into mission creep. This is not unique to the U.S. alone, in fact, it applies across the entire, ex-British colonial, board if not also beyond. Everywhere the Watch(surveillance)Dog(enforcement) once it outgrows its legitimate “checks and balance” mission and begins morphing into a malignant Frankenstein, it stands in need of of being doggedly dogwatched by their respective populace ! Lightening Jones and Gene Poole deserve kudos for their rich complementary comments.
Isn’t what is called the u.s.- government rather acting like a severely criminal and even mass murdering syndicate?
For many decades already.
Once again, supposedly obliviously, rather than ignorantly deconstructing the destructive foundations of US history from the get-go.
How many cops do you know that always follow the rules? How many cops instead decide that what they are doing is important to society and that this therefore gives them the right to break the rules? Do you believe that ICE and Border Patrol officers will always obey the fine print of every rule?
This lists the rules from a judge’s perspective. However, it is a fair guess that the data goes a lot further legally allowed. How many times does someone know someone with access, and say “help me out, look something up for me?” Human nature has shown that the people with access are probably using it to spy on lovers, or to make money, or otherwise in their personal lives. We know the police and the military are infiltrated with right-wing radicals. Whoever is in charge of supervising will regard all of these people as ‘the good guys’ and ‘teammates’, and will be reluctant to crack down on them, unless they get their own personal gain from it. Its doubtful that security and enforcement by internal security is a priority. Not when there are evil people out there that we must stop and kill. The one thing we know never happens is that the good apples among the cops turn on and testify against the bad apples [Frank Serpico was an exception.] It’s a big club, and they all salute the same flag and don’t give a damn about people not in the club.
“Power corrupts. Absolute power corrupts absolutely.” – Lord Acton
Employment in the security/intelligence sector is an excellent career move for a skilled criminal.
Remember the Snowden Leaks. The NSA had a motto, a goal to “Collect Everything.” Then, those with the proper security clearances and passwords can access that data via a search engine interface. I would suppose that current leakers would show that this is now AI assisted. Back then we were told the NSA was building a giant data center in Utah to store everything. Nowadays, the intelligence community has contracts with cloud providers so they are no longer limited to one data center.
Bush/Cheney/Obama/Biden/Trump have all had their minions with the power to spy on anyone at any time, including in the past. A key moment of course was when the “constitutional lawyer” Obama refused to shut it down, and instead was spying on his opponents like Nixon by 2016.
J. Edgar Hoover’s File Cabinets. When I was young, it was an unofficial sort of common knowledge that J. Edgar Hoover had dominated Washington for decades, and accomplished the seemingly impossible task of staying the head of the FBI for decades, via his famous file cabinets of blackmail material. Today, we live in a world where ‘scandal’ decides which candidates we can vote for, or which winners get to stay in office, and the government has a giant cloud full of blackmail material.
As long as concentrated wealth exists, we will have abuses of human and civil rights to continue the criminal enterprise.
“We must make our choice.
We may have democracy,
or we may have wealth concentrated in the hands of a few,
but we can’t have both.”
-Supreme Court Justice Louis Brandeis, 1933
“the C.I.A. — the latter prohibited by federal law from spying in the U.S. and from engaging in law enforcement —”
Let’s not forget that while James Angleton was director of Counterintelligence at the CIA, he ran a program that randomly opened Americans’ mail with absolutely no authorization and no oversight and in general involved the CIA in domestic spying despite the “prohibition.”
See:
hxxps://theintercept.com/2018/01/01/the-complex-legacy-of-cia-counterintelligence-chief-james-angleton/ :
“In December 1974, CIA Director William Colby fired Angleton after the New York Times revealed the then-unknown counterintelligence chief had overseen a massive program to spy on Americans involved in anti-war and black nationalist movements, a violation of the CIA’s charter. Coming four months after the resignation of Richard Nixon, Angleton’s fall was the denouement of the Watergate scandal, propelling Congress to probe the CIA for the first time. A Senate investigation, headed by Sen. Frank Church, exposed a series of other abuses: assassination conspiracies, unauthorized mail opening, collaboration with human rights abusers, infiltration of news organizations, and the MKULTRA mind-control experiments to develop drugs for use in espionage.”
and:
hxxps://books.google.fr/books/about/The_Ghost.html?id=EwCXDgAAQBAJ&redir_esc=y
A must read: The Burglary- When peace activists broke in to the FBI office in Media PA to find proof of Hoovers Co Intel Project.
It’s important to note that the probes into the CIA in the 1970’s were not only the first but also the last.
We have a traitorous majority in Congress won’t impeach a traitorous President – who goes to war(s), grifts money, and lies constantly – which is absolutely unacceptable.