Judge Napolitano On Natural Rights

Government Trampling Your Rights

NSA And The Progressive Movement

Spying on the president -- Obama, Merkel and the NSA

By Judge Andrew P. Napolitano

Published October 31, 2013

FoxNews.com

When German Chancellor Angela Merkel celebrated the opening of the new U.S. embassy in Berlin in 2008, she could not have imagined that she was blessing the workplace for the largest and most effective gaggle of American spies anywhere outside of the U.S.

It seems straight out of a grade-B movie, but it has been happening for the past eleven years: The NSA has been using Merkel as an instrument to spy on the president of the United States. 

We now know that the NSA has been listening to and recording Merkel’s cellphone calls since 2002. 

Angela Merkel was raised in East Germany, and she has a personal revulsion at the concept of omnipresent state surveillance.

In 2008, when the new embassy opened, the NSA began using more sophisticated techniques that included not only listening, but also following her. 

Merkel uses her cellphone more frequently than her landline, and she uses it to communicate with her husband and family members, the leadership of her political party, and her colleagues and officials in the German government.

She also uses her cellphone to speak with foreign leaders, among whom have been President George W. Bush and President Obama. 

Thus, the NSA -- which Bush and Obama have unlawfully and unconstitutionally authorized to obtain and retain digital copies of all telephone conversations, texts and emails of everyone in the U.S., as well as those of hundreds of millions of persons in Europe and Latin America -- has been listening to the telephone calls of both American presidents whenever they have spoken with the chancellor.

One could understand the NSA’s propensity to listen to the conversations of those foreign leaders who wish us ill. And one would expect that it would do so. But the urge to listen to the leadership of our allies serves no discernible intelligence-gathering purpose. 

Rather, it fuels distrust between our nations and in the case of Merkel exacerbates memories of the all-seeing and all-hearing Stasi, which was the East German version of the KGB that ruled that police state from the end of World War II until it collapsed in 1989. 

Merkel was raised in East Germany, and she has a personal revulsion at the concept of omnipresent state surveillance.

Obama apparently has no such revulsion. One would think he’s not happy that his own spies have been listening to him. 

One would expect that he would have known of this. 

Not from me, says Gen. Keith Alexander, the director of the NSA, who disputed claims in the media that he told Obama of the NSA spying network in Germany last summer. 

Either the president knew of this and has denied it, or he is invincibly ignorant of the forces he has unleashed on us and on himself.

When Susan Rice, Obama’s national security advisor, was confronted with all of this by her German counterpart, she first told him the White House would deny it. Then she called him to say that the White House could not deny it, but the president would deny that he personally knew of it.

How did we get here? What are the consequences of a president spying on himself? What does this mean for the rest of us?

Neither Bush nor Obama has had a strong fidelity to the Constitution. They share the views of another odd couple of presidents from opposing political parties, Teddy Roosevelt and Woodrow Wilson, in that the Constitution is not the supreme law of the land as it proclaims to be, but rather a guideline that unleashes the president to do all that it does not expressly forbid him to do. 

In the progressive era 100 years ago, that presidential attitude brought us the Federal Reserve, the federal income tax, Prohibition, World War I, prosecutions for speech critical of the government and the beginnings of official modern government racial segregation.

That same attitude in our era has brought us the Patriot Act, which allows federal agents to write their own search warrants, government borrowing that knows no end -- including the $2 trillion Bush borrowed for the war in Iraq, a country which is now less stable than before Bush invaded, and the $7 trillion Obama borrowed to redistribute -- and an NSA that monitors all Americans all the time. In the case of the NSA spying, this came about by the secret orders of Bush and Obama, animated by that perverse TR/Wilsonian view of the Constitution and not by a congressional vote after a great national debate.

Just as people change when they know they are being watched, the government changes when it knows no one can watch it. 

Just as we can never be ourselves when we fear that we may need to justify our most intimate thoughts to an all-knowing government, so, too, the government knows that when we cannot see what it is doing, it can do whatever it wants. And it is in the nature of government to expand, not shrink. Thomas Jefferson correctly predicted that 175 years ago.

But spying on yourself is truly asinine and perhaps criminal. You see, the president can officially declassify any secrets he wants, but he cannot -- without official declassification -- simply reveal them to NSA agents. 

One can only imagine what NSA agents learned from listening to Bush and Obama as they spoke to Merkel and 34 other friendly foreign leaders, as yet unidentified publicly.

Now we know how pervasive this NSA spying is: It not only reaches the Supreme Court, the Pentagon, the CIA, the local police and the cellphones and homes of all Americans; it reaches the Oval Office itself. Yet when the president denies that he knows of this, that denial leads to more questions.

The president claims he can start secret foreign wars using the CIA, secretly kill Americans using drones, and now secretly spy on anyone anywhere using the NSA. 

Is the president an unwitting dupe to a secret rats’ nest of uncontrolled government spies and killers? 

Or is he a megalomaniacal, totalitarian secret micromanager who lies regularly, consistently and systematically about the role of government in our lives?

Which is worse? What do we do about it?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. His latest is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”

Radical Obama Above The Law?

Above the law -- Obama's radical rejection of the rule of law has fatal consequences

By Judge Andrew P. Napolitano

Published July 11, 2013

FoxNews.com

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Fidelity to the rule of law is the centerpiece of a free society. It means that no one is beneath the protection of the law and no one is absolved of the obligation to comply with it. The government may not make a person or a class of persons exempt from constitutional protections, as it did during slavery, nor may it make government officials exempt from complying with the law, as it does today.

Everyone who works for the government in the United States takes an oath to uphold the Constitution and the laws written pursuant to it. 

In our system of government, we expect that Congress will write the laws, the courts will interpret them and the president will enforce them. 

Indeed, the Constitution states that it is the president’s affirmative duty to enforce the law. That duty is not an abstract formulation. Rather, it means the president cannot decline to enforce laws with which he disagrees or whose enforcement might cause him or his political allies to lose popularity. 

President Obama's radical rejection of the rule of law, which presents a clear and present danger to the freedom of us all, has had fatal consequences.

It also means the president cannot make up his own version of the law as a substitute for what the Constitution commands or Congress has written.

In the modern era, presidents have rejected the value of the rule of law and instead followed their own political interests. President George W. Bush, for example, while signing into law a federal statute prohibiting the government from reading your mail without a search warrant, boasted that he had no intention of enforcing that law -- and we know that he famously did not enforce it.

But no modern president has picked and chosen which laws to enforce and which to ignore and which to rewrite to the extremes of President Obama. His radical rejection of the rule of law, which presents a clear and present danger to the freedom of us all, has had fatal consequences.

The law requires that if American tax dollars are being given to the government of another country, and that government is toppled by its military -- the common phrase is a coup d’état -- the flow of cash shall stop immediately, lest we support financially those who have betrayed our values.

In Egypt, the military arrested the president, suspended the Constitution and installed a puppet regime. But Obama, embarrassed at the fall of the popularly elected but religiously fanatical government he supported, refuses to consider that military takeover a coup. Instead he has called it a popular uprising supported by the military, and he has continued the flow of your dollars into the hands of a military that has been murdering scores of peaceful demonstrators daily in the streets of Cairo.

The president’s signature domestic legislation -- ObamaCare -- is scheduled to become effective in stages. One of its provisions, requiring employers of more than 50 persons to offer health insurance acceptable to the feds to all of their employees, becomes effective on Jan. 1, 2014. 

In anticipation of its becoming law, insurance carriers and employers have calculated that instead of costs going down, as the president promised, they will certainly go up, resulting in the loss of jobs. So the president, mindful of the midterm congressional elections in November 2014 and fearful that Democrats who supported this law might suffer at the polls at the hands of deceived and thus angry voters, announced on the Fourth of July weekend that he planned not to enforce that provision until Jan. 1, 2015.

When he wanted to use military force in Libya and Pakistan -- two allies -- without congressional approval, out of fear, no doubt, that Congress might turn him down, he dispatched the CIA to do his killing. 

Why? Because federal law requires that he report all offensive use of the military to Congress and eventually obtain its approval for continued use. Because the CIA largely operates in secrecy, the president needn’t report its behavior publicly or even acknowledge that it took place.

In the same vein, he recently moved all records of the Usama bin Laden killing from the military -- which carried it out -- to the CIA. 

Why? Because the military is largely susceptible to the Freedom of Information Act, which commands transparency, and the CIA is largely not. He probably fears that the truthful version of bin Laden’s demise will become known. If so, it would be the fourth version of those events his administration has given.

When he wanted to kill an American and his 16-year-old son in Yemen because the American, though uncharged with any crime and unasked to come home, might be difficult to arrest while advocating war in a foreign country, he wrote his own rules for governing his own killings. He did so in secret and notwithstanding clear language in the Constitution expressly prohibiting the government from taking life, liberty or property without due process of law.

And when he wanted to keep us safe from terrorists but servile to him by spying on all of us, he established an enormous network of domestic spies who have access to all of our phone calls, emails and text messages. And he did this despite unambiguous language in the Constitution requiring a search warrant based on particularized probable cause of crime about the records he wanted to seize or the venues he wanted to search.

What’s going on?

What we have is a runaway government, dismissive of the Constitution it has sworn to uphold, contemptuous of the law it is required to enforce and driven by its own values of maximum control and minimum personal freedom. And we have a Congress supine enough to let this happen, as well as a judiciary so tangled in its own arcane procedures that immeasurable human freedom will be destroyed and Obama out of office before any meaningful judicial review can be had.

Is this the rule of law? What shall we do about it?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.