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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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Why Should the NSA Spy on Foreigners?


Throughout the controversy over whether the U.S. national-security state wire-tapped President Trump, no one, as far as I know, has challenged the legitimacy of the NSA’s spying on citizens of foreign countries, including Russia. The phenomenon is a classic example of how the conversion of the federal government into a national security state has warped and perverted the principles and values of the American people.

Since it is wrong in a moral sense for the U.S. government to be spying on Americans without judicially issued warrants, why isn’t it equally wrong for U.S. officials to be doing the same thing to foreigners?

After all, as the Declaration of Independence, whose principles American citizens celebrate every Fourth of July, observes, it’s not just Americans who are endowed with such fundamental, natural, God-given rights as liberty and privacy. The Declaration points out that everyone is endowed with such rights.

That includes citizens of France, Russia, England, Mexico, and everywhere else. Under what moral authority does the U.S. government infringe on the fundamental rights of people simply because they aren’t American citizens?

The protection of those two fundamental rights — liberty and privacy — was enshrined in the Bill of Rights, which expressly protects everyone, not just American citizens, from the federal government.

Consider the express words of the Fourth Amendment, which includes provisions regarding the government’s power to search people:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.

Notice something important about that wording: It refers to “the people,” not simply to “American citizens.” And that is precisely how the U.S. Supreme Court has interpreted that language — as applying to everyone, not just American citizens. Thus, the Fourth Amendment’s protection against the government applies to foreigners residing here in the United State or simply visiting here just as much as it applies to Americans.

So, how does the government get away with violating people’s fundamental rights abroad? U.S. officials say that the restrictions in the Constitution do not apply in foreign countries and, therefore, they wield the authority to spy on anyone they want.

But by its own terms, the Fourth Amendment is an express restriction on the powers of federal officials, and it makes no reference to geography. It expressly states that everyone (i.e., “the people”) shall be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. It does not say that only people living in the United States should be secure against unreasonable searches and seizures.

There is also the Golden Rule to consider: One should not treat others in ways that one would not like to be treated.

Ask yourself: What if Americans suddenly learned that the Russian or Iranian governments were spying on Americans, monitoring their emails, and recording their telephone calls? Wouldn’t most Americans be angry? Wouldn’t they say that foreign governments have no business spying on people here in the United States?

Given that Americans wouldn’t like some foreign government spying on them, why should the U.S. government be spying on people abroad?

This week, in a throwback to the Cold War-era U.S. concern about a supposed worldwide communist conspiracy based in Moscow, Fox News reported that U.S. officials are “concerned” about a compound that Russia is currently building in Nicaragua that overlooks the U.S. Embassy in Managua. U.S. officials have “expressed concern that the Russian building could be used to spy on Americans and gather intelligence.”

Imagine that: Here is a government (the U.S. government) that has military bases all over the world, including near Russia, and programs that spy on people all over the world and that gets “concerned” when Russia sets up a compound in a small Third World country in Latin America.

Finally, acolytes of the national-security-state way of life assert that spying on foreigners is necessary to keep us safe here at home.

But that’s palpable nonsense. No foreign regime has the resources, the manpower, the money, or even the interest in attacking and invading the United States. What all that spying is all about is trying to ferret out how people are planning to retaliate for U.S. interventions abroad or to blackmail foreign officials, through the compilation of compromising information, into supporting U.S. actions abroad — sort of like a J. Edgar Hoover blackmail scheme applied internationally.

The U.S. government should stop spying on everyone. The best way to accomplish that is by dismantling, not reforming, the Cold War-era national security establishment and restoring a constitutional republic to our land, one that operates in accordance with the principles of the Declaration of Independence and within the confines of the Constitution and the Bill of Rights.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.