The Supreme Court of the United States is set to consider shutting down a legal challenge that would let the U.S. eavesdrop on overseas communication. But according to Judge Napolitano, it may just be more hypocrisy from the Obama administration to try to keep the same type of monitoring of our freedoms that Bush was criticized for having.

During the Bush administration, Congress amended two laws, Napolitano said – the Patriot Act and the Fraud Intelligence Security Act… which allow a Federal court to listen to conversations of foreign nationals without any allegations against them, whether inside or outside the United States. The problem, according to the judge, is that some of these conversations are with Americans, who are technically protected by the Fourth Amendment, which says there has to be probable cause for the crimes.

Also, Judge Napolitano said that President Obama is, as president, not only defending this action but is saying it can’t be challenged in courts … and he’s using it more often than President Bush ever did. This is a direct difference from his time as senator, in which he spoke out against such actions.


The justices will address one of the biggest controversies surrounding the response to the Sept. 11 attacks – the government’s use of electronic surveillance.


The national security state is not a recent innovation, and its history in America is not one to be proud of, ranging from the FBI’s COINTELPRO activities against figures as varied as Martin Luther King, Jr., and Ernest Hemmingway to the CIA’s long history of attacks on countries from Guatemala to Iran. The NSA – an organization once so secret that its existence was not disclosed for years after its founding – has received relatively little press compared to its older siblings, but it has a long history of its own.

During the Bush administration, the NSA came under fire for the practice of warrantless wiretapping, eavesdropping on phone conversations without the permission of the Foreign Intelligence Surveillance Court. The practice was ruled unconstitutional and illegal by a district court judge, but this ruling was later overturned by the U.S Court of Appeals.

The agency maintained a large database of American phone calls, working with companies like AT&T and Verizon to produce “the largest database ever assembled in the world.”  This information was cross-referenced with other databases, including Americans’ credit histories. In addition to telephone companies, corporations like Google also maintained cozy relationships with the NSA.

As in other matters, the Obama administration has largely maintained the policy of its predecessor when it comes to the surveillance activities of the NSA. Whether he is re-elected this November or replaced by one of the current Republican candidates, major change seems doubtful.