Is the ‘Deep State’ constitutional?

Recent revelations, notably the March 8 WikiLeaks dump of over 9,000 emails, is reportedly a dump far larger and worse than the Edward Snowden revelations in 2013. A dump disclosing potential spying of Americans by their own television sets, whether on or off, or by their automobiles. Sophisticated cyber technology “beyond what Snowden could have imagined,” capable of spying and leaving the footprint of other countries such as Russia, so the government remains undetected, has caused many to look to the Constitution for protection from their own government.  Remember Snowden had revealed the National Security Agency’s “intercepting 200 million text messages every day worldwide through a program called Dishfire” according to an article by Lorenzo Franceschi-Bicchierai called “The 10 Biggest Revelations from Edward Snowden’s Leaks,” on Mashable June 5, 2014. Is the “Deep State” constitutional?

In the Constitution, the words “national security” are not used, but “common defense” is mentioned twice: first in the Preamble, which is but a statement of intent and is not generally seen as usable for codification of law, and next in Article I, Section 8 as one of the four powers of Congress, the other powers being the power to tax, to pay the debts, and to provide for the general welfare. Sections 2-9 are the qualifiers on what is meant by “common defense” so as to limit government’s inclination to define everything as common defense, as it now does by using the words national security instead.

Unfortunately for big government advocates, collecting and storing data on its citizens is not cited or even alluded to.  Nor has such authority been added by way of an amendment to the Constitution.

Fortunately for Americans, this behavior is specifically forbidden in the Fourth Amendment which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Fourth Amendment uses the strongest possible language conceivable. It continues, “And no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The amendment was specifically designed to prevent the government from spying on its own people.

Before the American Revolution, the British government used what was called “a general search warrant” which allowed their agents to harass people thought to be doing, or saying, something disapproved by the government. No such flexible interpretation was allowed in our government until recent times. In our day, computers, cellphone messages and phones are our “papers and effects.” Simply confiscating their messages and storing them, perhaps indefinitely, should be no different from the police walking into a home and taking any letters a person has received or are about to send and housing them in police headquarters in case they should need them to use against the person at a later day. As a first principle a person’s house and papers are off-limits to the government.

Moreover, what is considered unreasonable was not to be decided by the police. All searches are considered unreasonable without probable cause that the person broke a law. Elected judges exist for assessing probable cause. Should they get cozy with the police they can be defeated in the next election. As initially interpreted, there were to be few federal laws, hence few unelected federal justices. These issues were to be state, county or city matters. Judges rousted out of a good sleep in the middle of the night were not likely to be too happy about having to assess frivolous charges.

There exists no constitutional authority for a blanket extraction of all our electronic data. Judges swear an oath to preserve the Constitution. They are not to perform with a private view outside that document. Notice also the specific restrictive phraseology with respect to this power; they are to particularly describe “the place to be searched, and the persons or things to be seized” or evidence that something unlawful already happened. There is no authority for a “fishing expedition.” The National Security Agency spying on its citizens without a search warrant is clearly unconstitutional.

So what of the government’s secret Foreign Intelligence Surveillance Act court where since 1979 special federal and unelected judges have only turned down 12 spying requests out of the 38,169 requests? Isn’t that court based upon probable cause? Not necessarily. The request is more likely made because they lack probable cause and wish to find it by accessing private records or conversations. The FISA court is hampered by three major flaws: judges therein are not elected and accountable to the people, the court operates behind an impenetrable double-door in a vault-like room in total secrecy and the rules empowering the spying activities are far more permissive than those allowed other judges in other federal courts.

Moreover, the FISA court violates the Fifth Amendment in that the accused is, in a very real sense, forced to be a witness against himself and is perhaps the only witness. It is his papers, emails and phone conversations that convict him.

No, federal government, the power of the “Deep State” as practiced is a blatant violation of the Constitution. It may argue that it is only protecting good citizens from bad people out there by gathering private information without consent or knowledge, but who protects the people from the government? Historically, more terroristic acts happen under government authority than under private authority. Fortunately the Constitution, as designed, protects the people from the government.

Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and to applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, visit www.LibertyUnderFire.org.

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