Judge Andrew Napolitano

These judges issue search warrants based on the NSA's unchallenged wishes, not based on the constitutional requirement of particularly identifying for the court the target of the search and then presenting evidence to the court that constitutes probable cause of criminal behavior on the part of the target. This, too, is unconstitutional, as it is the product of a congressional alteration of the Constitution. As most schoolchildren know, Congress cannot alter or amend the Constitution; only the states can. Yet, by instructing FISA judges to issue search warrants that do not meet the constitutional identity of target and probable cause standards, Congress has substantially altered the Constitution, and the judicial Gang of 12 has gone along with this.

As one of the architects of all this domestic spying, and as one of the believers that the public should be kept in the dark about it, Rogers has not been happy with the Snowden revelations. Snowden subscribed to the same oath of secrecy as the two Gangs of 12, but he also swore -- as have both Gangs of 12 -- to uphold the Constitution.

To Snowden, the people have a fundamental right to know that their government has cooked up the most massive secret violation of civil liberties in the nation's history, and his oath to uphold the Constitution compelled his revelations. To Rogers, Snowden must be a traitor or a spy.

Even the Obama administration has not bought that argument, as it only charged Snowden with the delivery of classified materials to unauthorized persons. It did not charge him with treason (waging war on the United States or giving aid and comfort to enemies of the United States) or spying (giving classified secrets to enemies of the United States).

Frustrated that Snowden is apparently living freely in Moscow, Rogers summoned the FBI director before his House committee to float a truly novel and pernicious theory of First Amendment law. At that hearing last week, he attempted to persuade Comey to accept his idea that publishing classified secrets is a crime if the publisher was paid for his work. So, if the owners of and reporters at The Guardian of London or The New York Times or The Washington Post, who publicly revealed the secrets Snowden gave them, were paid for their work, the Rogers argument goes, they, too, could be prosecuted for espionage.

Rogers is not a lawyer, but he is an ex-FBI agent. He should know the law, but it was necessary for Comey to tutor him. The law is clear and was stated by the Supreme Court in the Pentagon Papers case, and Comey publicly reminded Rogers of this: If classified materials are of interest to the public, their publication is protected.

Stated differently, it matters not how the journalist acquires the classified materials or whether the journalist and his bosses are paid for his work. If the classified materials are newsworthy, they can be published, and no one can be sued or prosecuted for doing so.

In the clash between government secrecy and public transparency, the Framers placed a value judgment in the First Amendment. Since the press is the eyes and ears of the public, and since the public needs to know what the government is doing so it can make informed decisions when electing people to the government, publishers and reporters are immune from criminal prosecution and civil liability for lifting the veil on the governments' secrets. An informed public is more likely to make better decisions than an ignorant one.

I am happy that Comey did not fall for Rogers' ignorant argument, and I am happy, too, that the argument will fall on deaf ears. In a free society, knowledge is superior to ignorance. Politicians who would criminalize publishing the truth should be voted out of office.


Judge Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year.