Freedom for Me, but Not for Thee
3/20/2014 - By Judge
Andrew Napolitano
Initially, I was gratified to learn that Sen. Dianne Feinstein, D-Calif.,
the chair of the Senate Intelligence Committee, was unafraid to take on the Central
Intelligence Agency (CIA) over the issue of
domestic spying.
The CIA is limited by its charter to
stealing secrets from foreigners outside the U.S.
However, in a recent dust-up, Feinstein took to the Senate floor to accuse the CIA
of spying on staff members of her committee while they were examining CIA
documents in Virginia. This may
be the first acknowledgment by any senior government official who walks the
halls of the intelligence community that the CIA
engages in domestic spying.
For five years, the Senate Intelligence Committee has been examining
classified CIA materials involving CIA
use of torture during the Bush administration. It is doing so because a now
retired CIA official admitted destroying
evidence of torture. We may never know what torture the CIA
was authorized to engage in, but we can conclude that along with its
counterpart in the House, the Senate Intelligence Committee has either looked
the other way or expressly approved CIA
behavior that well transcends its charter. This unlawful behavior includes not
only torture, but also killing Americans via the use of drones, and small-scale
unpublicized warfare.
So, you can imagine the glee this defender of personal freedom and the rule
of law initially felt when I learned that the CIA's
erstwhile champion had had what appeared to be a change of heart. Feinstein
surely is the most effective defender of the intelligence community on Capitol
Hill. Until last week, she publicly supported and shielded but never criticized
the massive spying on Americans by the National Security Agency (NSA), the CIA's
cousin. She must have supported the CIA's
torture, killings and warfare -- but something about the torture caused her to
induce her committee to engage in a full-scale investigation of the Bush-era
torture her committee must have approved.
I say "must have" because, in this weird post-9/11 world, Congress
does not review the CIA's behavior or expand
its powers; these two congressional committees do. Because Congress chartered
the CIA, and because the CIA
charter does not contemplate behavior beyond stealing foreign secrets, and
because only Congress can change federal laws, any expansion of the CIA's
duties not authorized by Congress is unconstitutional -- and yet aside from the
point I address here.
The point I address here is that Feinstein's outrage was directed at CIA
domestic spying for the wrong reasons. She not only expressed no outrage over
NSA spying, including upon her 37 million California
constituents, but she approved it. The CIA
behavior that she condemns is the unapproved or unreported torture and the
domestic spying on a dozen persons in another branch of government. The NSA
behavior that she approves is spying on all Americans all the time. All of this
behavior goes to the heart of personal liberty in a free society.
At that heart is the principle of personal sovereignty -- the idea that
individuals are sovereign and the state is merely one instrument with which to
protect that sovereignty.
Yet the government of which Feinstein approves has been assaulting personal
sovereignty by destroying personal privacy. Privacy is not only a natural right
-- it exists by virtue of our humanity -- but it has sound historical and
textual roots. A natural right is an area or zone of personal behavior that may
not be interfered with by the government, no matter whose good that
interference might serve.
The historical roots of privacy are the now well-known numerous instances of
colonial antipathy toward the British practice of general warrants. General
warrants were issued by British judges to British agents in London
in secret, and they permitted and authorized British agents in America
to search wherever they wished for whatever they sought. Sound familiar? The
textual roots of privacy have been identified by the Supreme Court in numerous
places in the Constitution, not the least of which is the Fourth Amendment
prohibition of searches and seizures without warrants that identify the target
and that are based on the probable cause of criminal behavior of the target.
Feinstein's farrago against the CIA was forceful yet personal. She has
defended certain forms of torture when employed by the CIA to obtain intelligence from the victims of
the torture. Yet she has deplored certain forms of torture -- without
identifying them -- because the CIA
apparently did not seek the permission of the congressional committees in
advance or misrepresented the nature and severity of the torture to the
committees afterward.
Her committee was undertaking an
investigation into this unreported or under-reported torture when it noticed
that the CIA had hacked into its computers. That
hacking, which the CIA has denied, caused her to rip into the CIA on the Senate floor.
Do you see where Feinstein and her
colleagues have taken us? They have taken us to a secret government willing to
crush natural rights to privacy and bodily integrity -- but only if Feinstein
and her dozen or so congressional colleagues approve.
Is she seeking to expose torture
because it is immoral, unlawful, unconstitutional and un-American or because
she had not approved of it? Is she angry because the CIA illegally spied in the U.S. or because the CIA illegally spied in the U.S. on her staff? Who can be intellectually
honest about anger over spying on a handful of colleagues and indifferent to or
even supportive of spying on hundreds of millions of Americans?
You get the picture. She has no
problem with experiments with our liberties, unless she and her staff are the
victims.
If the government truly derives its powers from the consent of the governed,
it must recognize that in areas of natural rights -- speech, press, worship,
self-defense, travel, bodily integrity, privacy, etc. -- no one, not even a
well-intended majority, can consent to their surrender for us. James Madison
knew this when he argued that experiments with our liberties would be the
beginning of the end of personal freedom.
We are now well beyond that beginning.
NOTE: EMPHASIS ADDED
