What if the government fears freedom?

By Andrew P. Napolitano

What if the current massive spying on Americans began with an innocent secret executive order signed by President Ronald Reagan in 1986? What if Reagan contemplated that he was only authorizing American spies to spy on foreign spies unlawfully present in the United States?

What if Reagan knew and respected the history of the Fourth Amendment? What if the essence of that history is the Colonial revulsion at the British use of general warrants?

What if general warrants were issued by a secret court in London and authorized British agents in America to search wherever they wished and to seize whatever they found? What if the revulsion at this British government practice was so overwhelming that it led to the Revolutionary War against the king?

What if the whole purpose of the Fourth Amendment was to outlaw general warrants? What if the Fourth Amendment specifically guarantees the right to privacy to all in America in their persons, houses, papers and effects?

What if, in order to emphasize its condemnation of general warrants, the Fourth Amendment requires the government to obtain a warrant from a judge before invading the persons, houses, papers or effects of anyone and lays down the preconditions for the issuance of such warrants? What if those preconditions are individualized suspicion and articulated evidence of crime called probable cause about the specific person whose privacy the government seeks to invade?

What if these principles of constitutional fidelity, privacy and probable cause and the unlawfulness of general warrants have been regarded universally and publicly as quintessentially American values values that set this nation apart from all others?

What if the administration of President George W. Bush was so embarrassed that 9/11 happened on its watch that it fought a useless public war in Iraq which had nothing to do with 9/11 and a pernicious private war against American values by unleashing American spies on innocent Americans as to whom there was no individualized probable cause so that it could create the impression it was doing something to keep America safe from another 9/11-like attack?

What if the Bush folks took Reagan's idea of spying on foreign spies and twisted it so that they could spy on not just foreign spies but also on foreign persons? What if they took that and leapt to spying on Americans who communicated with foreign persons?

What if they then concluded that it was easier to spy on all Americans rather than just those who communicated with foreign persons? What if they claimed in secret that all this was authorized by Reagan's executive order and two federal statutes, their unique interpretations of which they refused to discuss in public?

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What if the government fears freedom?