Andrew Napolitano: Wrong to Keep Mass Surveillance Memo Secret

What is the deal with a memorandum by Republican employees at the Intelligence Committee of the United States House of Representatives that allegedly demonstrates very disturbing use of surveillance power through the Foreign Intelligence Surveillance Court not being publicized or shared widely among Congress members until shortly after legislation (S 139) to extend legal authority for such surveillance for six years cleared the Congress? If the memorandum provides as disturbing of revelations as some Congress members are claiming, every House and Senate member, and the American people too, being able to review it before congressional votes on the bill could have had significant consequences.

Maybe the memorandum’s wide distribution would have resulted in the bill failing to pass, passing with alterations to address problems evidenced in the memorandum, or passing with a significantly shorter reauthorization period. That a small group of Congress members “sat on” the memorandum, keeping its information from their fellow Congress members, legal scholar Andrew Napolitano says in a new interview with host Kennedy at Fox Business, “is either incompetence or malfeasance in office.”

And why is the memorandum now kept secret from the public despite Congress members’ claims that its revelations show reprehensible actions in the US government related to the mass surveillance program? Napolitano, who is the Fox News senior judicial analyst as well as a Ron Paul Institute Advisory Board member, finds this lack of openness intolerable.

Continuing to keep the memorandum secret from the people, Napolitano argues in the interview, is wrong. “The use of raw intelligence data for political purposes,” which is apparently a focus of the still-secret memorandum, says Napolitano, “will destroy and undermine democracy.” “If that happened,” says Napolitano, “we have a right to know about it.”

Napolitano continues:

It is just as bad for members of Congress to say: ‘We know about it, but we can’t do anything; because it’s a secret, we can’t tell you about it; it’s horrific if you know about it, but you will never know about it.’ What kind of democracy is that? Do we work for them, or do they work for us?

Preventing the publication of the memorandum, supposing it does contain information that would lead people to criticize the mass surveillance program, Napolitano says, will mean that the memorandum will become no more than “a historical footnote” and something largely forgotten six years from now when reauthorization is again considered in Congress.

Watch Napolitano’s complete interview here:

Napolitano also says in the interview that he is “looking for a courageous member” from among the twelve Congress members who knew about the memorandum before the vote but kept the memorandum secret to “take it to the floor of the Congress and release it, where the releaser is immune from criminal and civil liability.”

The immunity Napolitano is referring to is the protection provided to Congress members found in the Speech and Debate Clause of Article One, Section Six of the United States Constitution. It is this protection that Sen. Mike Gravel (D-AK) took advantage of in 1971 when he entered into the record of the Senate subcommittee he chaired the Pentagon Papers, the publication of which the US government was fighting to prevent, and worked on ensuring copies of the Pentagon Papers were then handed to reporters.

Reprinted with permission from the Ron Paul Institute for Peace and Prosperity.

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