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America the spied upon: Liberty under attack

| Saturday, Aug. 10, 2013, 9:00 p.m.
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How is it that the government can charge Edward Snowden with espionage for telling a journalist that the feds have been spying on all Americans and many of our allies but the National Security Agency, in a public relations campaign intended to win support for its lawlessness, can reveal secrets and do so with impunity? That question goes to the heart of the rule of law in a free society.

Since Snowden's June 6 revelations about massive NSA spying, we have learned that all Americans who communicate via telephone or the Internet (who doesn't?) have had all of their communications swept up by the federal government for two-plus years. The government initially claimed that the NSA has gathered only telephone numbers and billing data. Now we know that the NSA has captured and stored the content of trillions of telephone conversations, texts and emails, and can access that content at the press of a few computer keys.

All of this happened in the dark, with the permission of President Obama, with the knowledge and consent of fewer than 20 members of Congress who were forbidden from doing anything about it by the laws they themselves had written, based on secret legal arguments accepted by a secret court that keeps its records secret even from the judges who sit on the court.

This massive spying — metadata gathering, as the NSA calls it — was also done notwithstanding statements NSA officials made in public under oath and in secret classified briefings to Congress, which effectively denied it. The denials were in one case admitted to — “least untruthful,” as the director of national intelligence later called his own testimony. Then, when even members of Congress who usually support a muscular national security apparatus realized that they, too, had been lied to by the NSA, the NSA responded with its own leaks.

It has leaked that as a consequence of its spying it has prevented at least 50 foreign-originated plots from harming Americans. It eventually backed off that number and declined to reveal with specificity what it independently learned and how that knowledge foiled the plots. But we do know that its colleagues in the FBI were participants in many of those plots, which means they weren't real plots at all — just government stings going after dopes and dupes.

The NSA leaked that it captured actionable intelligence of grave and imminent danger to our embassies in the Middle East. The implication it wants you to draw here is that because it caught al-Qaida operatives talking in code in Yemen about deadly deeds they plan to perpetrate in the Arabian Peninsula, somehow the NSA's spying on 300 million innocent Americans is constitutional, lawful, effective and therefore worth the loss of freedom.

We learned that other federal agencies of alphabet nomenclature — the DHS, the DOJ, the DOD, the DEA, the CIA, the IRS, the FBI — all want access to the NSA's database — and it has shared some of it with most of them.

Also, former Drug Enforcement Administration agents, claiming this has been going on for at least a decade, acknowledged that the DEA regularly receives raw data from the NSA and uses that data to commence criminal investigations.

Down the slippery slope we go.

The whole NSA spying apparatus was sold to Congress as a limited mechanism for combating foreign terrorists. How putting the intimate thoughts of all Americans who use telephones and the Internet under the federal microscope helps to fight foreign terrorists has never been explained in a public court — only in a secret one.

But using this extra-constitutional means to fight crime brings us closer to a Soviet-style and value-free police state.

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

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