Commentary: Big Tent Ideas

JUDGE ANDREW P. NAPOLITANO: Federal Government’s Appetite For Surveillance Is Truly Insatiable

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In a year, if a friend asks you if the CIA is in your underwear, you’d probably not take the question seriously. You’d be wrong. The CIA is spending millions in tax dollars to get into your underwear next year.

Eleven years ago, when this column asked if the CIA was in your kitchen, folks who read only the title of the column mocked it. Yet, then-CIA Director Gen. David Petraeus gave a talk to CIA analysts that he fully expected to be kept secret. In the talk he revealed that CIA vendors had discovered a means to log on to the computer chips in kitchen microwave ovens and dishwashers. From there, they could listen in real time to the conversations in a kitchen if those chatting were nearby the appliances.

Unfortunately for Petraeus, but fortunately for the Constitution, one of his analysts was so critical of the CIA’s disdain for constitutional norms that the analyst recorded a major portion of Petraeus’s talk and leaked it to the media. Is the CIA in your kitchen? Yes, not physically, but virtually.

The CIA, notwithstanding a clause in its charter that prohibits it from engaging in surveillance in the United States or from engaging in any law enforcement activities, has a long history of domestic spying without search warrants.

That last phrase “without search warrants” when used in conjunction with CIA spying is redundant. The CIA does not deal with search warrants. It behaves as if the Fourth Amendment — and the First (protecting the freedom of speech and of the press) and Fifth (protecting life, liberty and property), for that matter — do not exist or somehow do not pertain to its agents.

Not long ago, I was challenged to a public debate at the Conservative Political Action Conference by the general who was then the head of the National Security Agency, the CIA’s domestic surveillance cousin. The topic of the debate was whether domestic warrantless spying is constitutional. I accepted the challenge and aggressively pressed the general on the notorious lack of fidelity that the 17 federal spying agencies have for the Constitution in general, and specifically the Fourth Amendment.

The general gave me two answers, both of which would have flunked a bar examination. First, he argued that the Fourth Amendment only protects against unreasonable surveillance, and his 60,000 domestic spies were behaving reasonably. After the laughter died down, I pointed out that the Supreme Court has held that all searches and seizures — all surveillance — conducted without search warrants are as a matter of law unreasonable, and thus violative of the amendment.

Then he retreated to a post-9/11 argument crafted by the Department of Justice in the George W. Bush administration. That argument offers that the Fourth Amendment only restrains law enforcement; it does not restrain the intelligence community. I pointed out that this view is defied by both language and history.

The plain language of the amendment has no exceptions to it. Rather, it protects “the right of the people to be secure in their persons, houses, papers, and effects.”

I then reminded him — we were friends, mind you; but I could not let him get away with publicly trashing the document he and I had both sworn to preserve, protect and defend — that the Fourth Amendment was written in the aftermath of British intelligence agents breaking down the doors of colonists’ homes ostensibly looking for compliance with the Stamp Act of 1765 but really looking for subversive materials by folks whom today we call the Founding Fathers.

I present this brief background so as to offer a flavor for the mindset of the feds who spy on us and to address the latest craze among senior level intelligence folks in the Biden administration.

Last week, the Director of National Intelligence — she is the nominal head of all 17 federal surveillance agencies — revealed to Congress that she had spent $22 million in order to develop cotton fibers that she called smart clothing. The fibers will enable the CIA and other federal spies to record audio, video and geolocation data from your shirt, pants, socks and even your underwear. She billed this as the largest single investment ever made to develop Smart ePants.

Smarty pants — how appropriate is that name for federal intrusion? Smarty pants is the jerk who can’t stop talking and won’t change the subject.

The CIA does not directly develop its ability to connect to your kitchen microwave and dishwasher or your socks and underwear. Rather, it hires outside groups to do so.

In the case of smarty pants, 28 American tech firms and laboratories have helped to develop this monstrosity. Most are not household names, but some are — like the University of Virginia (which is owned by the state of Virginia), Penn State (which is owned by the state of Pennsylvania) and DuPont (which owns most of the state of Delaware).

You can’t make this stuff up. The federal government’s appetite for surveillance is quite literally insatiable.

And its respect for the individual natural right to be left alone is nonexistent. It traffics in evading and avoiding the Constitution, using absurd and puerile arguments that have never been accepted by the courts, even though every single federal employee has sworn an oath of fidelity to the Constitution as it is generally understood and interpreted.

When the DNI told Congress about this — while Congress was on its summer break — not a peep was heard from anyone in Congress or from the sleepy White House for whom the DNI works.

Does the government work for us, or do we work for the government? What employee gets to spy on his bosses by putting trick textiles into the bosses’ underwear and then gets away with it? When will Congress protect our liberties? When will enough of this warrantless spying be enough?

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

COPYRIGHT 2023 ANDREW P. NAPOLITANO

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