In an article posted by Libertarian-minded Judge Andrew Napolitano on LewRockwell.com on Thursday, Napolitano asserts that government spying has gotten out of control. According to Napolitano, both the Democratic and Republican Parties have justified the process of spying on American citizens and the violation of constitutional rights in the process, always under the guise of security, and in doing so, have violated their oaths to uphold the Constitution.
Napolitano begins by providing some historical background on domestic spying. According to Napolitano, the Foreign Intelligence Surveillance Act (FISA) of 1978 established a new standard for having to obtain search warrants. He noted,
The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard — thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution — of probable cause of status. The status was that of an agent of a foreign power. So, under FISA, the feds needed to demonstrate to a secret court only that a non-American physically present in the U.S., perhaps under the guise of a student, diplomat or embassy janitor, was really an agent of a foreign power, and the demonstration of that agency alone was sufficient to authorize a search warrant to listen to the agent’s telephone calls or read his mail.
Further, the requirement of status morphed over time from “foreign agent” to “foreign person,” and the act applied to Americans in contact with “foreign persons.” With the inception of the Patriot Act in 2001, federal agents were permitted to write their own search warrants and amended FISA so that the FISA-issued search warrant requirement was not applicable when the foreign person is outside of the United States.
Putting this into perspective, Napolitano writes, “This means that if you email or call your cousin in Europe or a business colleague in Asia, the feds are reading or listening, without a warrant, without suspicion, without records and without evidence of anything unlawful.”
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