Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

Revolution. They believed that the Democratic-Republicans, also called anti-Federalists ( Jefferson, Madison, and Monroe, to name a few) who espoused these “French” views, would motivate aliens living in the United States to support the French.1 To suppress these ideas, Congress enacted the Alien and Sedition Acts over the summer of 1798.

The Sedition Act victimized Matthew Lyon, a Republican congressman from Vermont, during his reelection campaign.2 Lyon published an article attacking the Adams administration and declaring that “every consideration of the public welfare [was] swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” The government made it impossible for Lyon to prevail at his trial. The trial judge instructed the jury that it must find “malicious intent,” an element of the crime, unless the statement “could have been uttered with any other intent than that of making odious or contemptible the President and the government, and bringing them both into disrepute.” Lyon could have defended himself by proving the truth of his statements, but this was quite the difficult task, as his statement was an opinion.

The jury convicted the Congressman and the judge sentenced Lyon to a $1,000 fine and four months in jail. It can be said that Lyon got the last laugh, however, as he was reelected while in prison! The Sedition Act proved to be a disaster for the Federalists politically, as the nation elected a Democratic-Republican by the name of Thomas Jefferson as our third president.

The United States also suppressed the freedom of speech during both the Civil War and World War I. During the Civil War, the Union as well as the Confederacy suppressed opposition newspapers and jailed critics.3 During World War I, the government passed laws, such as the Espionage Act of 1917, and the Sedition Act of 1918, which criminalized public criticism of the war. German-Americans, labor leaders, and socialists were also subject to government persecution. Moreover, during the Red Scare that followed the Great War, thousands of radicals were arrested, and many aliens were deported.

The Oxymoron of the “Secret” Court of Justice

Following the uproar surrounding the Alien and Sedition Acts, Presidents tended to avoid any public scrutiny of their unconstitutional actions. Rather than attempting to pass unconstitutional laws so that their actions would appear to be legal, some were reckless enough to impair the civil liberties of the people without their knowledge and without the need of Congressional approval and therefore criticisms. Presidents Kennedy and Lyndon B. Johnson routinely wiretapped the telephone calls of those they feared, without search warrants. The most famous example of such action was in the form of President Richard Nixon and the wiretapping of almost anyone of import in Washington, DC. Then he got caught, and his Presidency came to a crashing halt. The permanently upsetting result of JFK’s, LBJ’s, and Nixon’s chicanery is that these illegal actions led to the passage of one of the most intrusive laws in America, the Foreign Intelligence Surveillance Act of 1978, better known as FISA.

The stated purpose of the Act was to protect the citizens of the United States from wiretapping, and it attempted to do this by requiring warrants for any wiretaps. But the warrants were no ordinary warrants from the courts established under the Constitution. Instead, FISA created a new court authorized to approve these wiretap warrants, both the applications for which and orders from would be “maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of Central Intelligence.”4 So, the secret court was created to review secret applications and issue secret decisions. And this was supposed to protect the liberties of the citizens of the United States.

Also, the Act was supposed to be limited to foreign powers and agents of foreign powers, and the primary purpose was to gather foreign intelligence. Well, at least that is how the government sold it, claiming it would protect American citizens from JFK/LBJ/Nixon-like warrantless wiretapping, which would now only be used against foreigners. And it was supposed to provide judicial oversight of the federal government’s surveillance activities while maintaining the confidential nature needed to ensure national security.

The emphasis on oversight and protection of liberties was somewhat tenuous considering that the Act permitted surveillance in the United States without a court order for one year unless the “surveillance will acquire the contents of any communication to which a United States person is a party.”5 When an American citizen was to be involved, then the government was required to obtain judicial authorization within seventy-two hours after the start of surveillance.

So, not only does the Act purport to give the government permission to initiate surveillance against an American citizen without a court order for three days, but once they start surveillance, government agents are not required to provide any federal district court with probable cause of a crime, as the Fourth Amendment requires. Rather, all that is required is that the government go to this secret court and explain that it suspected the American citizen of being involved with a foreigner in potential espionage. The court, which was not required to disclose its records and which would never be open to public scrutiny, was a rubber stamp; a rubber stamp that, between the years of 1979 to 2007, rejected only nine of the 25,361 warrant applications submitted to it.6

Aside from the secrecy granted these FISA courts, the ease with which warrants were granted also stemmed from the much lower threshold for proof that FISA required. Rather than, as in a typical warrant, containing a requirement of probable cause to believe that the target possesses evidence of a crime, FISA only requires that there be probable cause to believe that the target is an agent of a foreign power and that the place where the surveillance will be taking place is being used by the foreign power. This means that the only thing the government needs to show is probable cause that the target of