The invasion of America

Andrew P. Napolitano, a New Jersey Superior Court judge from 1987 to 1995, is the senior judicial analyst at the Fox News Channel. His latest book is "A Nation of Sheep."

When President Nixon was in his pre-Watergate heyday, he ordered the FBI and the CIA to electronically monitor the private behavior of his domestic political adversaries. Shortly after Nixon resigned, investigators discovered hundreds of reports of break-ins and secret electronic surveillance. None of it was authorized by warrants, and thus all of it was illegal. But it had been conducted pursuant to the president’s orders. Nixon’s defense was, “When the president does it, that means that it is not illegal.”

He made that infamous statement in a TV interview years after he left office, but the attitude espoused was obviously one he embraced while in the White House. He, like his present-day successor, rejected the truism that the 4th Amendment of the Constitution, which prohibits the government from conducting electronic surveillance of anyone without a search warrant issued by a judge based on probable cause of a crime, restrains the president.

In response to the abuses during the Nixon administration, Congress enacted the Foreign Intelligence Surveillance Act, or FISA, in 1978. The law provides that no electronic surveillance may occur by anyone in the government at any time under any circumstances for any reason other than in accordance with law, and no such surveillance may occur within the U.S. of an American other than in accordance with the 4th Amendment.


The 4th Amendment was written in response to the Colonial experience whereby British soldiers wrote their own search warrants, thus literally authorizing themselves to enter the private property of colonists.

The amendment has been uniformly interpreted by the courts to require a warrant by a judge; and judges can only issue search warrants after government agents, under oath, have convinced the judges that it is more likely than not that the things to be seized are evidence of crimes. This standard of proof is called probable cause of crime. It is one of only two instances in which the founders wrote a rule of criminal procedure into the Constitution itself, surely so that no Congress, president or court could tamper with it.

FISA also created the bizarre, constitutionally questionable procedure in which federal agents could appear in front of a secret court and, instead of presenting probable cause of a crime in order to obtain a search warrant, would only need to present probable cause that the target of the warrant was an agent of a foreign government. The foreign government could be friendly or it could wish us ill, but no illegal or even anti-American behavior need be shown. Subsequent amendments to this statute removed the “agency” requirement and demanded only that the target be a person physically present in the U.S. who was not born here and is not an American citizen, whether working for a foreign government or not.

The FISA statute itself significantly -- and, in my opinion, unconstitutionally -- lowered the 4th Amendment bar from probable cause of “crime” to probable cause of “status.” However, in order to protect the 4th Amendment rights of the targets of spying, the statute erected a so-called wall between gathering evidence and using evidence. The government cannot constitutionally prosecute someone unless it has evidence against him that was obtained pursuant to probable cause of a crime, a standard not met by a FISA warrant.

Congress changed all that. The Patriot Act passed after 9/11 and its later version not only destroyed the wall between investigation and prosecution, they mandated that investigators who obtained evidence of criminal activity pursuant to FISA warrants share that evidence with prosecutors. They also instructed federal judges that the evidence thus shared is admissible under the Constitution against a defendant in a criminal case. Congress forgot that it cannot tell federal judges what evidence is admissible because judges, not politicians, decide what a jury hears.

Then the Bush administration and Congress went even further. The administration wanted, and Congress has begrudgingly given it, the authority to conduct electronic surveillance of foreigners and Americans without even a FISA warrant -- without any warrant whatsoever. The so-called Protect America Act of 2007, which expired at the end of last week, gave the government carte blanche to spy on foreign persons outside the U.S., even if Americans in the United States with whom they may be communicating are spied on -- illegally -- in the process. Director of National Intelligence J. Michael McConnell told the House Judiciary Committee last year that hundreds of unsuspecting Americans’ conversations and e-mails are spied on annually as a consequence of the warrantless surveillance of foreigners outside the United States.


So where does all this leave us? Even though, since 1978, the government has gotten more than 99% of its FISA applications approved, the administration wants to do away with FISA altogether if at least one of the people whose conversations or e-mails it wishes to monitor is not in the U.S. and is not an American.

Those who believe the Constitution means what it says should tremble at every effort to weaken any of its protections. The Constitution protects all “persons” and all “people” implicated by government behavior. So the government should be required, as it was until FISA, to obtain a 4th Amendment warrant to conduct surveillance of anyone, American or not, in the U.S. or not.

If we lower constitutional protections for foreigners and their American correspondents, for whom will we lower them next?