Opinion: Andrew Napolitano: Court blasts unlawful behavior of FBI agents spying on ordinary Americans
“Liberty lies in the hearts of men and women;no constitution, no law, no court can even do much to help it.”Late last week, a judge on the Foreign Intelligence Surveillance Court revealed that he had had enough of the FBI and Congress trashing the Constitution. The normally secretive court and the normally secretive judge explained in a rare public opinion the unlawful behavior of FBI agents spying on ordinary Americans in violation of the Fourth Amendment.
Nevertheless, every encroachment upon personal freedom — here the natural human right to be left alone — when unchecked, forms a small precedent, and becomes another step on the stairway to totalitarianism. It makes the next encroachment easier for the zealots in the government to accomplish and to justify.
In protecting privacy in the Fourth Amendment, James Madison, the drafter of the Bill of Rights, was determined to prevent the new American government from doing to Americans what the British had done to the colonists. Thus, the Fourth Amendment serves that purpose — and embraces privacy as a value, a human right superior to the needs of the government — by imposing a warrant requirement on the government.
The warrant requirement’s second purpose is to confine the government and its appetite for surveillance to crimes that have already occurred. This is done by limiting the basis for the warrant to probable cause — the more likely than not standard. Thus, only probable cause of crimes that have already occurred can be presented to a judge in a warrant application.
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