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Post by philunderwood on Apr 11, 2013 9:34:57 GMT -5
Drones, Guns and the President By Judge Andrew P. Napolitano www.JewishWorldReview.com | Does the government work for us, or do we work for the government? How can the president claim the lawful power to kill whomever he wishes and at the same time ask Congress to incapacitate our ability to defend ourselves against those who might seek to kill us? Kentucky Sen. Rand Paul struck a raw nerve in the weak underbelly of the Obama administration last month with his 13-hour filibuster. Paul was furious — as every American should be — that the president refused to admit that he does not possess the lawful authority to kill Americans with drones. The senator used the confirmation hearings of now CIA Director John Brennan as a forum in which to articulate the principled constitutional argument that whenever the government wants the life, liberty or property of anyone, it can only obtain that via due process. Due process is the command of the Fifth Amendment. "Due process" is the jurisprudential phrase for a fair jury trial and the accompanying constitutional protections. The reasons we have these protections are the wish of the Framers that our natural rights — here, the rights to life, liberty and property and to fairness from the government — be guaranteed and their fear that they not suffer under another Star Chamber. Star Chamber was a secret gaggle of advisers to British kings that decided who among the king's adversaries would lose his life, liberty or property without due process. Once that decision was made, it was carried out. Paul articulated all of this during his filibuster. He did not read gibberish, as those who have filibustered in the past sometimes have done. He made principled moral and legal arguments for 13 hours. His arguments read like a passionate college lecture on personal liberty in a free society. The next day, Attorney General Eric Holder sent a terse letter to Paul that reads in its entirety as follows: "It has come to my attention that you have now asked an additional question: 'Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?' The answer to that question is no." This is an unremarkable statement, but one that only came about after the senatorial equivalent of pulling teeth. Paul's filibuster was prompted by the administration's repeated refusal to answer that question. Those refusals came from the testimony of Holder, FBI Director Robert Mueller and then CIA Director-nominee Brennan. They all declined to answer the question of whether the president has the power to use drones to kill Americans in America, and they all referred the questioners to their boss in the White House. Their boss in the White House has never publicly answered that question, but he has exercised that horrific power without publicly defending or legally justifying it. When lawyers for potential victims of presidential killings (how terrifying does that sound?) sought to ascertain the source of that power, the president dispatched Justice Department lawyers into court to persuade judges that the legal argument supporting killings is classified. That's because, those Justice Department lawyers argued, the decisions to kill — just like Star Chamber's decisions to kill — are made in secret; hence, the legal support for the killings must be kept secret. How could a legal argument be classified? How could a judge accept that sophistry? How could a president sworn to uphold the Constitution claim the power to kill people on his own? As if to antagonize further those who believe the Constitution means what it says, the same president who says he can't reveal the legal basis for his killing wants to take away your right to self-defense against a killer, and he wants to prevent you from having the means with which to shoot at a tyrant should such a monster take over the government. The reason we are a free and independent people today is our secession from Great Britain, and that secession only came about because we had the means with which to repel the soldiers of the British king. Without weaponry in the hands of ordinary folks and unknown to the government (so it doesn't know from whom to seize weapons), we will lack the ability to repel a modern-day George III. So, today we have a president who has sworn to uphold the Constitution but seems hell-bent on violating it. He wants to use the force of legislation to weaken your right to self-defense, and he is already using powers never granted to him to kill uncharged, unindicted Americans whom his advisers in secret have decided must go. The government derives its powers from the consent of the governed. Do you know anyone who consented to this? If you do, they consented for themselves. The rest of us will keep our lives, liberty and property and defy any government efforts to take them.
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Post by philunderwood on Apr 18, 2013 8:57:28 GMT -5
Taxation Is Theft By Judge Andrew P. Napolitano www.JewishWorldReview.com | With a tax code that exceeds 72,000 pages in length and consumes more than six billion person hours per year to determine taxpayers' taxable income, with an IRS that has become a feared law unto itself, and with a government that continues to extract more wealth from every taxpaying American every year, is it any wonder that April 15th is a day of dread in America? Social Security taxes and income taxes have dogged us all since their institution during the last century, and few politicians have been willing to address these ploys for what they are: theft. Texas Gov. Rick Perry caused a firestorm among big-government types during the Republican presidential primaries last year when he called Social Security a Ponzi scheme. He was right. It's been a scam from its inception, and it's still a scam today. When Social Security was established in 1935, it was intended to provide minimal financial assistance to those too old to work. It was also intended to cause voters to become dependent on Franklin Delano Roosevelt's Democrats. FDR copied the idea from a system established in Italy by Mussolini. The plan was to have certain workers and their employers make small contributions to a fund that would be held in trust for the workers by the government. At the time, the average life expectancy of Americans was 61 years of age, but Social Security didn't kick in until age 65. Thus, the system was geared to take money from the average American worker that he would never see returned. Over time, life expectancy grew and surpassed 65, the so-called trust fund was raided and spent, and the system was paying out more money than it was taking in — just like a Ponzi scheme. FDR called Social Security an insurance policy. In reality, it has become forced savings. However, the custodian of the funds — Congress — has stolen the savings and spent it. And the value of the savings has been diminished by inflation. Today, the best one can hope to receive from Social Security is dollars with the buying power of 75 cents for every dollar contributed. That makes Social Security worse than a Ponzi scheme. You can get out of a Ponzi investment. You can't get out of Social Security. Who would stay with a bank that returned only 75 percent of one's savings? The Constitution doesn't permit the feds to steal your money. But steal, the feds do. At one of last year's Republican presidential debates, a young man asked the moderator to pose the following question to the candidates: "If I earn a dollar, how much of it am I entitled to keep?" The question was passed to one of the candidates, who punted, and then the moderator changed the topic. Only Congressman Ron Paul gave a serious post-debate answer to the young man's question: "All of it." Every official foundational government document — from the Declaration of Independence to the U.S. Constitution to the oaths that everyone who works for the government takes — indicates that the government exists to work for us. The Declaration even proclaims that the government receives all of its powers from the consent of the governed. If you believe all this, as I do, then just as we don't have the power to take our neighbor's property and distribute it against his will, we lack the ability to give that power to the government. Stated differently, just as you lack the moral and legal ability to take my property, you cannot authorize the government to do so. Here's an example you've heard before. You're sitting at home at night, and there's a knock at the door. You open the door, and a guy with a gun pointed at you says: "Give me your money. I want to give it away to the less fortunate." You think he's dangerous and crazy, so you call the police. Then you find out he is the police, there to collect your taxes. The framers of the Constitution understood this. For 150 years, the federal government was run by user fees and sales of government land and assessments to the states for services rendered. It rejected the Hamiltonian view that the feds could take whatever they wanted, and it followed the Jeffersonian first principle that the only moral commercial exchanges are those that are fully voluntary. This worked well until the progressives took over the government in the first decade of the 20th century. They persuaded enough Americans to cause their state legislatures to ratify the Sixteenth Amendment, which was designed to tax the rich and redistribute wealth. They promised the American public that the income tax would never exceed 3 percent of income and would only apply to the top 3 percent of earners. How wrong — or deceptive — they were. Yet, the imposition of a federal income tax is more than just taking from those who work and earn and giving to those who don't. And it is more than just a spigot to fill the federal trough. At its base, it is a terrifying presumption. It presumes that we don't really own our property. It accepts the Marxist notion that the state owns all the property and the state permits us to keep and use whatever it needs us to have so we won't riot in the streets. And then it steals and uses whatever it can politically get away with. Do you believe this? There are only three ways to acquire wealth in a free society. The inheritance model occurs when someone gives you wealth. The economic model occurs when you trade a skill, a talent, an asset, knowledge, sweat, energy or creativity to a willing buyer. And the mafia model occurs when a guy with a gun says: "Give me your money or else." Which model does the government use? Why do we put up with this?
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Post by philunderwood on May 17, 2013 8:42:58 GMT -5
Storm Clouds Gathering By Judge Andrew P. Napolitano www.JewishWorldReview.com | Government is bad for personal freedom. That argument is premised upon the truism that everything government does interferes with freedom because it either prohibits or compels. Everything it owns it has taken from others. Much of what it says is divorced from the truth. President Obama, like President George W. Bush, has argued that his first job is to keep America safe, and if he impairs personal freedom in the process, that is a small price to pay for safety. Many of my colleagues in the media on the left and right have bought this argument, notwithstanding its fallacies. Until now. This past week, we learned that the IRS has targeted for additional scrutiny the tax exemption applications of groups with whose messages it disagrees. We also learned that the Department of Justice obtained the personal telephone records of hundreds of reporters and editors employed by the Associated Press without a search warrant issued by a judge. And during this past week we learned that the White House, the Department of State and the CIA all engaged in a conspiracy of disinformation so that the official version of events of what caused the murders of four Americans at our consulate in Benghazi, Libya, would not impair Obama's re-election campaign in 2012. The common threads in all of this government secrecy and lying are a general rejection of government's moral obligation to tell the truth, a disturbing yet brazen willingness to evade and avoid the restrictions the Constitution has deliberately built around government, and a glib admission that the government can do as it pleases so long as it can politically get away with it. The Constitution's Equal Protection Clause requires that the government treat all similarly situated entities in a similar manner. The Constitution's First Amendment prohibits the government from using the speech and expressive activities of persons in America as a basis for the disparate treatment of them. Thus, on its face — that is, on the basis of what the IRS has admitted and without any further investigation — we have violations of these constitutional principles. If the IRS were to examine the applications for tax exemption of Media Matters with the same level of scrutiny as it does with Tea Party Patriots, it would not run afoul of these principles. But Congress has given the IRS broad latitude to scrutinize the behavior of the taxpayers it chooses to scrutinize, and the IRS has given itself authority to probe, prod and plunder wherever it wishes. I say "given itself," because the IRS has rule-making power, which when overlooked by Congress (as is almost always the case) actually serves to enhance IRS powers beyond what Congress permits. Short of criminal behavior such as bribery or conspiracy, the IRS employees who have singled out applications for tax exempt status for more scrutiny based on anticipated political expression are subject to removal from office, but they cannot be prosecuted or sued. Here again, Congress is to blame, as both Republicans and Democrats have used and abused the IRS to their advantage, and neither party inwardly wants laws that will prevent it from doing so in the future. Is this what you expect of our tax collectors? The First Amendment also assures the right of professional journalists to seek and protect their sources, and it gives them immunity from government prosecution or retribution for truthfully publishing matters of material public interest, even when it involves information stolen from the government. The Supreme Court taught us this in the Pentagon Papers case. Moreover, the Fourth Amendment requires that if the government wants private information about who stole its secrets, it needs a search warrant from a judge. But the Patriot Act, which was celebrated by some in the media whose telephone records have since been seized, permits federal agents to write their own search warrants when they seek records from a third party like a telephone company and can claim that pursuit of terrorists is at stake. The Patriot Act makes a mockery of the Fourth Amendment, and the government knows that. When the government chills free speech, we all suffer. Thomas Jefferson preferred newspapers without government to government without newspapers. Whose personal records will the government authorize itself to seize next? The lesson of Benghazi is that we had no lawful right to interfere in the domestic affairs of the Libyan government. It was unlawful for Obama to bomb Col. Gadhafi without a congressional declaration of war. The organized assault on our consulate was the unintended consequence of us using force to infuse American-style democracy on a people whose culture is unable and unwilling to accept it. But the president's people were terrified that the murder of our ambassador to Libya during the 2012 presidential campaign might impair Obama's re-election chances. So they and he tried to rewrite history, and the more they and he lied the more they and he needed to lie to cover up their original lies. Would you retain an employee who lied to you about the deaths of innocents and lied more to cover up the original lies? Now, back to Bush and Obama and the president's job. According to the Constitution, the president's first job obligation is to preserve, protect and defend the Constitution. According to the Constitution, that means preserving Americans' freedom first and safety second. Freedom is our natural state and is the ultimate natural right. Safety is a need that we ourselves can provide when unimpeded by the government. If the president keeps us safe but not free, he is not doing his job. Do you know anyone who feels freer or even any safer because the government trampled personal freedoms and so far has gotten away with it?
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Post by philunderwood on May 23, 2013 9:50:16 GMT -5
Tyranny Around the Corner By Judge Andrew P. Napolitano www.JewishWorldReview.com | A few weeks ago, President Obama advised graduates at Ohio State University that they need not listen to voices warning about tyranny around the corner, because we have self-government in America. He argued that self-government is in and of itself an adequate safeguard against tyranny, because voters can be counted upon to elect democrats (lowercase "d") not tyrants. His argument defies logic and 20th-century history. It reveals an ignorance of the tyranny of the majority, which believes it can write any law, regulate any behavior, alter any procedure and tax any event so long as it can get away with it. History has shown that the majority will not permit any higher law or logic or value — like fidelity to the natural law, a belief in the primacy of the individual or an acceptance of the supremacy of the Constitution — that prevents it from doing as it wishes. Under Obama's watch, the majority has, by active vote or refusal to interfere, killed hundreds of innocents — including three Americans — by drone, permitted federal agents to write their own search warrants, bombed Libya into tribal lawlessness without a declaration of war so that a mob there killed our ambassador with impunity, attempted to force the Roman Catholic Church to purchase insurance policies that cover artificial birth control, euthanasia and abortion, ordered your doctor to ask you whether you own guns, used the IRS to intimidate outspoken conservatives, seized the telephone records of newspaper reporters without lawful authority and in violation of court rules, and obtained a search warrant against one of my Fox colleagues by misrepresenting his true status to a federal judge. James Rosen, my colleague and friend, is a professional journalist. He covers the State Department for Fox News. In order to do his job, he has cultivated sources in the State Department — folks willing to speak from time to time off the record. One of Rosen's sources apparently was a former employee of a federal contractor who was on detail to the State Department, Stephen Jin-Woo Kim. Kim is an expert in arms control and national defense whose lawyers have stated that his job was to explain byzantine government behavior so we all can understand it. When he was indicted for communicating top secret and sensitive information, presumably to Rosen, his lawyers replied by stating that the information he discussed was already in the public domain, and thus it wasn't secret. Prior to securing Kim's indictment, the Department of Justice obtained a search warrant for Google's records of Rosen's personal emails by telling a federal judge that Rosen had committed the crime of conspiracy by undue flattery of Kim and appealing to Kim's vanity until Kim told Rosen what he wanted to hear. In a word, that is rubbish. And the FBI agent who claimed that asking a source for information and the federal judge who found that the flattering questions alone constituted criminal behavior were gravely in error. Reporters are protected in their craft by the First Amendment, and the Supreme Court has ruled that they can ask whatever questions they wish without fear of prosecution. If Kim revealed classified information to Rosen — a charge Kim vigorously denies — that is Kim's crime, not Rosen's. The Supreme Court ruled in the Pentagon Papers case that it is not a crime for a journalist to seek secrets, to receive them, to possess them and to publish them so long as they affect a matter of material public interest. The government's behavior here is very troubling. Government lawyers and FBI agents are charged with knowing the law. They must have known that Rosen committed no crime, and they no doubt never intended to charge him, and they never have. They materially misled the judge, who saw the phrase "probable cause" of criminal activity (taken from the Fourth Amendment) in their affidavit in support of the search warrant they sought, and he signed. The judge should have seen this for the ruse it was. It is inconceivable that a person could conspire to commit a crime (release of classified information) that is impossible for that person to commit, particularly with a Supreme Court case directly on point. This misuse of the search warrant mechanism by misrepresentation of the status of the target continues the radicalization of federal criminal procedure now typical of this Department of Justice. It has claimed that it can release military weapons to foreign criminal gangs just to see where the weapons end up, and that its agents cannot be prosecuted for harm caused by those who received the weapons. It has held that the serious consideration given in the White House by high-ranking government officials to the identity of persons the president wants to kill somehow is a constitutional substitute for due process and thus enables the president to use drones to kill people uncharged with federal crimes. It has extended the public safety exception to the Miranda rule from the few seconds at the scene of the crime spent securing the prisoner, where the Supreme Court has said it resides, to more than 72 hours. And now this. The reason we have the due process safeguards imposed upon the government by the Constitution is to keep tyranny from lurking anywhere here, much less around the corner. Due process is the intentionally created obstacle to government procedural shortcuts, which, if disregarded, will invite tyranny to knock at the front door and sneak in through the back. Justice Felix Frankfurter warned of this 70 years ago when he wrote, "The history of liberty has largely been the history of the observance of procedural safeguards." That was true then, and it is true now. Do you expect the Department of Justice to cut constitutional corners against you?
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Post by philunderwood on May 30, 2013 8:37:28 GMT -5
An Assault on Freedom of the Press By Judge Andrew P. Napolitano www.JewishWorldReview.com | The firestorm commenced by the revelation of the execution of a search warrant on the personal email server of my Fox News colleague James Rosen continues to rage, and the conflagration engulfing the First Amendment continues to burn; and it is the Department of Justice itself that is fanning the flames. As we know from recent headlines, in the spring of 2010, the DOJ submitted an affidavit to a federal judge in Washington, D.C., in which an FBI agent swore under oath that Rosen was involved in a criminal conspiracy to release classified materials, and in the course of that conspiracy, he aided and abetted a State Department vendor in actually releasing them. The precise behavior that the FBI and the DOJ claimed was criminal was Rosen's use of "flattery" and his appeals to the "vanity" of Stephen Wen-Ho Kim, the vendor who had a security clearance. The affidavit persuaded the judge to issue a search warrant for Rosen's personal email accounts that the feds had sought. The government's theory of the case was that the wording of Rosen's questions to Kim facilitated Kim's release of classified materials, and Rosen therefore bore some of the criminal liability for Kim's answers to Rosen's questions. Kim has since been indicted for the release of classified information (presumably to Rosen), a charge that he vigorously denies. Rosen has not been charged, and the DOJ has said it does not intend to do so. The government knew that Rosen committed no crime — not as a conspirator nor as an aider and abettor — by asking Kim for his opinion on the likely North Korean response to the then-pending U.N. condemnations of North Korea's nuclear and ballistic missile tests. By telling a federal judge, however, that Rosen somehow was criminally complicit in the release of classified information by the manner in which he put questions to Kim, the DOJ substantially misled the judge into signing a search warrant, which, when executed, would enable the feds to read Rosen's private emails. Then, by reading them the feds were led to Fox News telephone numbers in New York City and in Washington, which they since have acknowledged they have monitored. When asked at a congressional hearing just two weeks ago on May 15 to address this, Attorney General Eric Holder replied: "With regard to the potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of or would think would be a wise policy." Whether under oath or not, because Holder spoke in his official capacity before a congressional committee in its official capacity, he was legally bound to tell the truth and legally bound not to mislead the committee. Last Thursday, President Obama in a speech on national security stated, "Journalists should not be at legal risk for doing their jobs. Our focus must be on those who break the law." The next day, the DOJ leaked to NBC News the inconvenient truth that Holder had personally authorized seeking the search warrant for Rosen's personal emails; and over the long holiday weekend, the DOJ confirmed that. What's going on here? Isn't the Attorney General bound by the same laws to tell the truth as the rest of us are? Doesn't the First Amendment protect from criminal prosecution and government harassment those who ask questions in pursuit of the truth? The answers to these questions are obvious and well grounded. One of Holder's predecessors, Nixon administration Attorney General John Mitchell, went to federal prison after he was convicted of lying to Congress. The same Attorney General who told Congress he had "not been involved" in the Rosen search warrant before the DOJ he runs revealed that he not only was involved, he personally approved the decision to seek the search warrant, must know that the Supreme Court ruled that reporters have an absolute right to ask any questions they want of any source they can find. The same case held that they cannot be punished or harassed because the government doesn't like the answers given to their questions. And the same case held that the if answers concern a matter in which the public is likely to have a material interest, they can legally be published, even if they contain state secrets. The whole purpose of the First Amendment is to permit open, wide, robust, even unfettered debate about the government. That debate cannot he held in an environment in which reporters can be surveilled by the government because of their flattery. And the government cannot serve the people it was elected to serve when its high-ranking officials can lie to or mislead the congressional committees before which they have given testimony. The great baseball pitcher Roger Clemens spent a few million dollars successfully defending himself against charges brought by Holder's DOJ, which accused him of doing what Holder himself has arguably done. Is this the government in a free society? Is this what you expect from the government in a free society? And when reporters clam up because they don't like the feds breathing down their necks when they reveal inconvenient — or even innocuous — truths about the government, don't we all suffer in our ignorance?
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Post by philunderwood on Jun 13, 2013 8:56:33 GMT -5
Liberty in Shambles By Judge Andrew P. Napolitano www.JewishWorldReview.com | When British soldiers were roaming the American countryside in the 1760s with lawful search warrants with which they had authorized themselves to enter the private homes of colonists in order to search for government-issued stamps, Thomas Paine wrote, "These are the times that try men's souls." The soul-searching became a revolution in thinking about the relationship of government to individuals. That thinking led to casting off a king and writing a Constitution. What offended the colonists when the soldiers came legally knocking was the violation of their natural right to privacy, their right to be left alone. We all have the need and right to be left alone. We all know that we function more fully as human beings when no authority figure monitors us or compels us to ask for a permission slip. This right comes from within us, not from the government. Thomas Jefferson made the case for natural rights in the Declaration of Independence ("endowed by their Creator with certain inalienable rights"). The Bill of Rights was added to the Constitution to reduce to writing the guarantees of personal liberty. ("Congress shall make no law abridging the freedom of ... religion ... speech ... press ... assembly..." "No person shall ... be deprived of life, liberty, or property, without due process of law..." "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.") And, of course, to prevent the recurrence of soldier-written search warrants and the government dragnets and fishing expeditions they wrought, the Constitution mandates that only judges may issue search warrants, and they may do so only on the basis of probable cause of crime, and the warrants must "particularly describ(e) the place to be searched, and the persons or things to be seized." Last week, we discovered that the government has persuaded judges to issue search warrants not on the constitutionally mandated basis, but because it would be easier for the feds to catch terrorists if they had a record of our phone calls and our emails and texts. How did that happen? In response to the practice of President Richard Nixon of dispatching FBI and CIA agents to wiretap his adversaries under the guise of looking for foreign subversives, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. It prohibited all domestic surveillance in the U.S., except if authorized by a judge based on probable cause of crime, or if authorized by a judge of the newly created and super-secret FISA court. That court was empowered to issue warrants based not on probable cause of crime, but on probable cause of the target being an agent of a foreign power. The slippery slope began. Soon the feds made thousands of applications for search warrants to this secret court every year; and 99 percent of them were granted. The court is so secret that the judges who sit on it are not permitted to keep records of their decisions. Notwithstanding the ease with which the feds got what they wanted from the FISA court, Congress lowered the standard again from probable cause of being an agent of a foreign power to probable cause of being a foreign person. After 9/11, Congress enacted the Patriot Act. This permitted federal agents to write their own search warrants, as if to mimic the British soldiers in the 1760s. It was amended to permit the feds to go to the FISA court and get a search warrant for the electronic records of any American who might communicate with a foreign person. In 30 years, from 1979 to 2009, the legal standard for searching and seizing private communications — the bar that the Constitution requires the government to meet — was lowered by Congress from probable cause of crime to probable cause of being an agent of a foreign power to probable cause of being a foreign person to probable cause of communicating with a foreign person. Congress made all these changes, notwithstanding the oath that each member of Congress took to uphold the Constitution. It is obvious that the present standard, probable cause of communicating with a foreign person, bears no rational or lawful resemblance to the constitutionally mandated standard: probable cause of crime. Now we know that the feds have seized the telephone records of more than 100 million Americans and the email and texting records of nearly everyone in the U.S. for a few years. They have obtained this under the laws that permit them to do so. These laws — just like the ones that let British soldiers write their own search warrants — were validly enacted, but they are profoundly unconstitutional. They are unconstitutional because they purport to change the clear and direct language in the Constitution, and Congress is not authorized to make those changes. These laws undermine the reasons the Constitution was written, one of which was to guarantee the freedom to exercise one's natural rights. These laws directly contradict the core American value that our rights come from our humanity and may not be legislated away — not by a vote of Congress, not by the consensus of our neighbors, not even by agreement of all Americans but one. The government says we should trust it. Who in his right mind would do so after this? President Obama says the feds have your phone records but are not listening to your calls and will not read your emails. Who would believe him? James Clapper, the director of national intelligence, testified that the feds were not gathering vast data on Americans. Who would trust him? The NSA says that Congress knew about all this, but its members were prohibited from telling the American people. What kind of a democracy is that? The modern-day British soldiers — our federal agents — are not going from house to house; they are going from phone to phone and from computer to computer, enabling them to penetrate every aspect of our lives. If anything violates the lessons of our history, the essence of our values and the letter of the Constitution, it is this.
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Post by philunderwood on Jun 20, 2013 7:57:09 GMT -5
Fidelity to the Constitution When We Need It By Judge Andrew P. Napolitano www.JewishWorldReview.com | When former spy Edward Snowden revealed to the world that the federal government is spying on most Americans, most Americans were surprised and unhappy. But half of official Washington yawned before it roared. Somehow the people in the government had a pretty good idea of what government spies are doing, and they more or less approve of it — but not all of them. Politicians as diverse as Republican Speaker John Boehner and Democratic Sen. Dianne Feinstein called Snowden a traitor. So did former Vice President Dick Cheney, and President Obama said that for once Cheney's words were music to his ears. On the other hand, former Democratic Congressman Dennis Kucinich, Republican Sen. Rand Paul, my Fox News colleague Bill O'Reilly and I have all referred to Snowden as a hero. What did Snowden do that has those in power screaming for his scalp and those — generally — who fear the loss of liberty, including millions of young people, grateful for his courage? The NSA is America's domestic spying apparatus. Its budget is secret. It will soon occupy the largest federal building on the planet. It often hires outside contractors to do much of its work. One of those contractors is Booz Allen Hamilton. Booz Allen's co-chair is former Admiral John M. McConnell, who once headed the NSA. When Snowden began his work for Booz Allen, he took two oaths. The first oath was to keep secret the classified materials to which he would be exposed in his work as a spy; the second oath was to uphold the Constitution. Shortly after Snowden began his work with the NSA, he came to the realization that he could not comply with both oaths. He realized that by keeping secret what he learned, he was keeping the American public in the dark about what its government is doing outside the Constitution in order to control the public. What is it doing? The government persuaded a federal judge with a perverse understanding of the values and history and language of the Constitution to sign a series of orders directing the largest telephone company in the U.S. and the largest Internet providers in the world to make available to the government's prying eyes all sorts of information about nearly all of us, thus allowing the feds to monitor our use of land line and wireless phones, as well as our use of emails and texts. The numbers are staggering. Verizon has greater than 113,000,000 U.S. customers who generate or receive more than one billion phone calls every day. Americans text and email one another using the services of Microsoft, Google, Yahoo, Facebook and others many billions of times every day. The judge's order was profoundly unconstitutional, as is the section of the Patriot Act that authorized it. The Constitution requires that the government demonstrate to all judges being asked to sign search warrants specific evidence of criminal behavior contained in the things to be seized. And it requires that the warrants themselves particularly describe the places to be searched or the persons or things to be seized. In this case, the things being seized consist of digital data about nearly everyone in America, which in the hands of a skilled spy can be used to monitor our physical movements and communications and, according to former CIA Director David Petraeus, to predict them. The Patriot Act facilitates these dragnets by unconstitutionally reducing the standard for the issuance of search warrants. The president, who refuses to deny that his spies possess the content of our communications, claims they are not listening to it or reading it. Who would believe President Obama? One of the spies who knew the power he and his fellow spies had and who had access to the innermost thoughts of hundreds of millions of us — and who disbelieved the president — was Edward Snowden. Snowden realized the unconstitutional nature of what the government was doing and concluded that he could not be faithful to both of his oaths. One of those oaths — to retain secrets — is grounded in a federal statute that requires secrecy and punishes the exposure of secrets. The other oath is grounded in the Constitution, which is the supreme law of the land and protects the natural right to be left alone and does not punish the governmental violation of that right. When confronted with the conflicting oaths, Snowden opted for the higher good: fidelity to the supreme law of the land. Hence, in order to protect the privacy of us all, Snowden violated the lesser oath and upheld the greater one. He could not serve two masters when the lesser of the two (fidelity to the government's laws) facilitated a corruption of the greater of the two (the primacy to the Constitution). He's a traitor, the establishment roared. He's a high school dropout. He left the Army. He admits to having lots of sex with his girlfriend. He fled to Hong Kong. Who cares? He understands, as Ronald Reagan did, that if we don't control the government, the government will control us. That's why the Washington establishment yawned when we learned what it knew and now roars because Snowden challenged it. Those in power want to stay there and will misuse the Constitution to do so for as long as they can get away with it, no matter to which political party they belong. Any government that secretly spies on nearly all the population is aiming to control the population. Snowden knew that this massive violation of the constitutionally guaranteed rights of nearly every American, orchestrated and operated in secrecy, is corrupting the Constitution and empowering the corruptors. It was that understanding plus a willingness to face down those in power who lack fidelity to the Constitution and who can do him harm that constituted the behavior of a hero. Is he flawed? The only hero who was not flawed was nailed to a tree 2,000 years ago because those He came into the world to save rejected Him.
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Post by philunderwood on Jun 27, 2013 12:44:43 GMT -5
The Truth Shall Keep Us Free By Judge Andrew P. Napolitano www.JewishWorldReview.com | Which is more dangerous to personal liberty in a free society: a renegade who tells an inconvenient truth about government law-breaking, or government officials who lie about what the renegade revealed? That's the core issue in the great public debate this summer, as Americans come to the realization that their government has concocted a system of laws violative of the natural law, profoundly repugnant to the Constitution and shrouded in secrecy. The liberty of which I write is the right to privacy: the right to be left alone. The Framers jealously and zealously guarded this right by imposing upon government agents intentionally onerous burdens before letting them invade it. They did so in the Fourth Amendment, using language that permits the government to invade that right only in the narrowest of circumstances. The linchpin of those circumstances is "probable cause" of evidence of crime in "the place to be searched, and the persons or things to be seized." If the government cannot tell a judge specifically what evidence of crime it is looking for and precisely from whom, a judge may not issue a search warrant, and privacy — the natural human yearning that comes from within all of us — will remain where it naturally resides, outside the government's reach. Congress is the chief culprit here, because it has enacted laws that have lowered the constitutional bar that the feds must meet in order for judges to issue search warrants. And it has commanded that this be done in secret. And I mean secret. The judges of the FISA court — the court empowered by Congress to issue search warrants on far less than probable cause, and without describing the places to be searched or the persons or things to be seized — are not permitted to retain any records of their work. They cannot use their own writing materials or carry BlackBerries or iPhones in their own courtrooms, chambers or conference rooms. They cannot retain copies of any documents they've signed. Only National Security Agency staffers can keep these records. Indeed, when Edward Snowden revealed a copy of an order signed by FISA court Judge Roger Vinson — directing Verizon to turn over phone records of all of its 113,000,000 U.S. customers in direct and profound violation of the individualized probable cause commanded by the Constitution — Vinson himself did not have a copy of that order. Truly, this is the only court in the country in which the judges keep no records of their rulings. At the same time that Vinson signed that order, NSA staffers, in compliance with their statutory obligations, told select members of Congress about it, and they, too, were sworn to secrecy. Oregon Democratic Sen. Ron Wyden was so troubled when he learned this — a terrible truth that he agreed not to reveal — that he mused aloud that the Obama administration had a radical and terrifying interpretation of certain national security statutes. But he did more than muse about it. He asked Gen. James Clapper, the director of national intelligence, who was under oath and at a public congressional hearing, whether his spies were gathering data on millions of Americans. Clapper said no. The general later acknowledged that his answer was untruthful, but he claimed it was the "least untruthful" reply he could have given. This "least untruthful" nonsense is not a recognized defense to the crime of perjury. After we learned that the feds are spying on nearly all Americans, that they possess our texts and emails and have access to our phone conversations, Gen. Keith Alexander, who runs the NSA, was asked under oath whether his spies have the ability to read emails and listen to telephone calls. He answered, "No, we don't have that authority ." Since the questioner — FBI agent turned Congressman Mike Rogers — was in cahoots with the general in keeping Americans in the dark about unconstitutional search warrants, there was no follow-up question. In a serious public interrogation, a committee chair interested in the truth would have directed the general to answer the question that was asked. Since that deft and misleading act, former NSA staffers have told Fox News that the feds can read any email and listen to any phone call, and Alexander and Rogers know that. So Alexander's "no," just like his boss's "no," was a lie at worst and seriously misleading at best. This is not an academic argument. The oath to tell the truth — "the whole truth and nothing but the truth" — also makes those who intentionally mislead Congress subject to prosecution for perjury. President Obama is smarter than his generals. He smoothly told a friendly interviewer and while not under oath that the feds are not listening to our phone calls or reading our emails. He, of course, could not claim that they lack the ability to do so, because we all now know that he knows they can. These Snowden revelations continue to cast light on the feds when they prefer darkness. Whatever one thinks of Snowden's world-traveling odyssey to avoid the inhumane treatment the feds visited upon Bradley Manning, another whistleblower who exposed government treachery, he has awakened a giant. The giant is a public that has had enough of violations of the Constitution and lies to cover them up. The giant is fed up with menial politicians and their media allies demonizing the messenger because his message embarrasses the government by revealing that it is unworthy of caring for the Constitution. Think about that: The very people in whose hands we have reposed the Constitution for preservation, protection, defense and enforcement have subverted it. Snowden spoke the truth. Knowing what would likely befall him for his truthful revelations and making them nevertheless was an act of heroism and patriotism. Thomas Paine once reminded the Framers that the highest duty of a patriot is to protect his countrymen from their government. We need patriots to do that now more than ever.
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Post by philunderwood on Jul 4, 2013 8:44:18 GMT -5
Jefferson Weeping By Judge Andrew P. Napolitano www.JewishWorldReview.com | Do you have more personal liberty today than on the Fourth of July 2012? When Thomas Jefferson wrote the Declaration of Independence, he used language that has become iconic. He wrote that we are endowed by our Creator with certain inalienable rights, and among them are life, liberty and the pursuit of happiness. Not only did he write those words, but the first Congress adopted them unanimously, and they are still the law of the land today. By acknowledging that our rights are inalienable, Jefferson's words and the first federal statute recognize that our rights come from our humanity — from within us — and not from the government. The government the Framers gave us was not one that had the power and ability to decide how much freedom each of us should have, but rather one in which we individually and then collectively decided how much power the government should have. That, of course, is also recognized in the Declaration, wherein Jefferson wrote that the government derives its powers from the consent of the governed. To what governmental powers may the governed morally consent in a free society? We can consent to the powers necessary to protect us from force and fraud, and to the means of revenue to pay for a government to exercise those powers. But no one can consent to the diminution of anyone else's natural rights, because, as Jefferson wrote and the Congress enacted, they are inalienable. Just as I cannot morally consent to give the government the power to take your freedom of speech or travel or privacy, you cannot consent to give the government the power to take mine. This is the principle of the natural law: We all have areas of human behavior in which each of us is sovereign and for the exercise of which we do not need the government's permission. Those areas are immune from government interference. That is at least the theory of the Declaration of Independence, and that is the basis for our 237-year-old American experiment in limited government, and it is the system to which everyone who works for the government today pledges fidelity. Regrettably, today we have the opposite of what the Framers gave us. Today we have a government that alone decides how much wealth we can retain, how much free expression we can exercise, how much privacy we can enjoy. And since the Fourth of July 2012, freedom has been diminished. In the past year, all branches of the federal government have combined to diminish personal freedoms, in obvious and in subtle ways. In the case of privacy, we now know that the federal government has the ability to read all of our texts and emails and listen to all of our telephone calls — mobile and landline — and can do so without complying with the Constitution's requirements for a search warrant. We now know that President Obama authorized this, federal judges signed off on this, and select members of Congress knew of this, but all were sworn to secrecy, and so none could discuss it. And we only learned of this because a young former spy risked his life, liberty and property to reveal it. In the past year, Obama admitted that he ordered the CIA in Virginia to use a drone to kill two Americans in Yemen, one of whom was a 16-year-old boy. He did so because the boy's father, who was with him at the time of the murders, was encouraging militants to wage war against the U.S. He wasn't waging war, according to the president; he was encouraging it. Simultaneously with this, the president claimed he can use a drone to kill whomever he wants, so long as the person is posing an active threat to the U.S., is difficult to arrest and fits within guidelines that the president himself has secretly written to govern himself. In the past year, the Supreme Court has ruled that if you are in police custody and fail to assert your right to remain silent, the police at the time of trial can ask the jury to infer that you are guilty. This may seem like a technical ruling about who can say what to whom in a courtroom, but it is in truth a radical break from the past. Everyone knows that we all have the natural and constitutionally guaranteed right to silence. And anyone in the legal community knows that judges for generations have told jurors that they may construe nothing with respect to guilt or innocence from the exercise of that right. No longer. Today, you remain silent at your peril. In the past year, the same Supreme Court has ruled that not only can you be punished for silence, but you can literally be forced to open your mouth. The court held that upon arrest — not conviction, but arrest — the police can force you to open your mouth so they can swab the inside of it and gather DNA material from you. Put aside the legal truism that an arrest is evidence of nothing and can and does come about for flimsy reasons; DNA is the gateway to personal data about us all. Its involuntary extraction has been insulated by the Fourth Amendment's requirements of relevance and probable cause of crime. No longer. Today, if you cross the street outside of a crosswalk, get ready to open your mouth for the police. The litany of the loss of freedom is sad and unconstitutional and irreversible. The government does whatever it can to retain its power, and it continues so long as it can get away with it. It can listen to your phone calls, read your emails, seize your DNA and challenge your silence, all in violation of the Constitution. Bitterly and ironically, the government Jefferson wrought is proving the accuracy of Jefferson's prediction that in the long march of history, government grows and liberty shrinks. Somewhere Jefferson is weeping. Happy Fourth of July 2013.
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Post by philunderwood on Jul 11, 2013 12:24:40 GMT -5
Above the Law By Judge Andrew P. Napolitano www.JewishWorldReview.com | Fidelity to the rule of law is the centerpiece of a free society. It means that no one is beneath the protection of the law and no one is absolved of the obligation to comply with it. The government may not make a person or a class of persons exempt from constitutional protections, as it did during slavery, nor may it make government officials exempt from complying with the law, as it does today. Everyone who works for the government in the United States takes an oath to uphold the Constitution and the laws written pursuant to it. In our system of government, we expect that Congress will write the laws, the courts will interpret them and the president will enforce them. Indeed, the Constitution states that it is the president's affirmative duty to enforce the law. That duty is not an abstract formulation. Rather, it means the president cannot decline to enforce laws with which he disagrees or whose enforcement might cause him or his political allies to lose popularity. It also means the president cannot make up his own version of the law as a substitute for what the Constitution commands or Congress has written. In the modern era, presidents have rejected the value of the rule of law and instead followed their own political interests. President George W. Bush, for example, while signing into law a federal statute prohibiting the government from reading your mail without a search warrant, boasted that he had no intention of enforcing that law — and we know that he famously did not enforce it. But no modern president has picked and chosen which laws to enforce and which to ignore and which to rewrite to the extremes of President Obama. His radical rejection of the rule of law, which presents a clear and present danger to the freedom of us all, has had fatal consequences. The law requires that if American tax dollars are being given to the government of another country, and that government is toppled by its military — the common phrase is a coup d'‚tat — the flow of cash shall stop immediately, lest we support financially those who have betrayed our values. In Egypt, the military arrested the president, suspended the Constitution and installed a puppet regime. But Obama, embarrassed at the fall of the popularly elected but religiously fanatical government he supported, refuses to consider that military takeover a coup. Instead he has called it a popular uprising supported by the military, and he has continued the flow of your dollars into the hands of a military that has been murdering scores of peaceful demonstrators daily in the streets of Cairo. The president's signature domestic legislation — Obamacare — is scheduled to become effective in stages. One of its provisions, requiring employers of more than 50 persons to offer health insurance acceptable to the feds to all of their employees, becomes effective on Jan. 1, 2014. In anticipation of its becoming law, insurance carriers and employers have calculated that instead of costs going down, as the president promised, they will certainly go up, resulting in the loss of jobs. So the president, mindful of the midterm congressional elections in November 2014 and fearful that Democrats who supported this law might suffer at the polls at the hands of deceived and thus angry voters, announced on the Fourth of July weekend that he planned not to enforce that provision until Jan. 1, 2015. When he wanted to use military force in Libya and Pakistan — two allies — without congressional approval, out of fear, no doubt, that Congress might turn him down, he dispatched the CIA to do his killing. Why? Because federal law requires that he report all offensive use of the military to Congress and eventually obtain its approval for continued use. Because the CIA largely operates in secrecy, the president needn't report its behavior publicly or even acknowledge that it took place. In the same vein, he recently moved all records of the Osama bin Laden killing from the military — which carried it out — to the CIA. Why? Because the military is largely susceptible to the Freedom of Information Act, which commands transparency, and the CIA is largely not. He probably fears that the truthful version of bin Laden's demise will become known. If so, it would be the fourth version of those events his administration has given. When he wanted to kill an American and his 16-year-old son in Yemen because the American, though uncharged with any crime and unasked to come home, might be difficult to arrest while advocating war in a foreign country, he wrote his own rules for governing his own killings. He did so in secret and notwithstanding clear language in the Constitution expressly prohibiting the government from taking life, liberty or property without due process of law. And when he wanted to keep us safe from terrorists but servile to him by spying on all of us, he established an enormous network of domestic spies who have access to all of our phone calls, emails and text messages. And he did this despite unambiguous language in the Constitution requiring a search warrant based on particularized probable cause of crime about the records he wanted to seize or the venues he wanted to search. What's going on? What we have is a runaway government, dismissive of the Constitution it has sworn to uphold, contemptuous of the law it is required to enforce and driven by its own values of maximum control and minimum personal freedom. And we have a Congress supine enough to let this happen, as well as a judiciary so tangled in its own arcane procedures that immeasurable human freedom will be destroyed and Obama out of office before any meaningful judicial review can be had. Is this the rule of law? What shall we do about it?
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Post by philunderwood on Jul 18, 2013 8:26:13 GMT -5
Double Jeopardy By Judge Andrew P. Napolitano www.JewishWorldReview.com | While the country processes the racial politics-inspired prosecution of George Zimmerman, which came to a conclusion last week, and as the calls to try him in federal court for the same events for which he was acquitted in a state court become louder each day, a case in upstate New York is making its way through the system that profoundly reveals the antipathy to the Constitution displayed by some prosecutors in the U.S. Department of Justice and may give Zimmerman a foretaste of things to come. Sitting patiently waiting for a Manhattan federal appeals court to order the government to obey the laws it has sworn to uphold is former New York state Sen. Joseph Bruno. Unlike many in the New York Legislature today, Bruno, a fiercely Catholic conservative Republican, was a pillar of legislative integrity, known even to his political adversaries as a man of his word. Once you shook his hand, you could count on his compliance with the agreement sealed by the handshake. The justice for which the former state senator sits and waits is not based on any novel or arcane legal argument or any legislative loophole. It is a principle of law as old and as revered as the country itself. It is the constitutional prohibition against double jeopardy. Simply stated, the Obama administration wants to try him twice for the same alleged events, and he has asked a federal appeals court to prevent it from doing so. Here's what happened. In December 2009, Bruno was convicted by a federal district court jury in Albany, N.Y., of violating the federal "honest services" statute. Following the law as it then existed, the jury found that he had failed to inform the state of New York — his employer in his capacity as a sitting state senator — that he was also employed elsewhere. Being a New York state senator is a part-time job, and virtually all sitting state senators have other employment. Nevertheless, by this failure, he supposedly had denied the state his undivided, or "honest," services. He was not convicted of bribery; he wasn't charged with bribery. He was only charged with and convicted of violating this inane statute. The statue is inane because it defies the age-old definition of "crime." Crime is harm — generally, harm to the public order. This honest services statute has permitted Bruno and others to be prosecuted, not because their behavior caused any harm but because of their silence. But the statute was more than inane. It was also unconstitutional, because it punished silence; and silence is a natural right — for which we donÕt need the governmentÕs permission to exercise and, as a consequence, with which we cannot receive the governmentÕs heavy hand. Last year, the U.S. Supreme Court unanimously invalidated the honest services statute and ruled that the failure of an employee to tell one employer of his employment relationship with another employer, without any palpable harm to either employer, cannot be a crime in America. As a result of that ruling, a Manhattan federal appeals court threw out Bruno's conviction. In a fair world, that would be the end of his ordeal. However, the Obama Department of (political) Justice obtained a new indictment against Bruno based upon the same set of facts that had formed the allegations of a violation of the honest services statute, but which it now claimed constituted bribery. The feds did this even though they had told the federal judge in the first trial nearly a dozen times that the state senator had not committed bribery and even though the witnesses who had testified for the government in the first trial uniformly stated when asked that Bruno had not been bribed. Bruno's lawyers saw right through this old trick — a trick that the kings of England played on their political opponents, including many Colonists. A trick so abominable that the Framers expressly prohibited it in the Constitution. The trick is played when the government calls the old crime — the one for which the charges have ended favorably for the defendant — by a new name, and presto ... it can try the defendant again, even though it lost the first round. Regrettably, a federal judge in Albany bought this argument. His decision to let the feds prosecute Bruno a second time for the same events as were subsumed in the first trial is now under appeal. Can the feds legally do this? In a word: NO; obviously NO. And in the federal system, it is very rare for an appeals court to get involved in a case before the case has reached a conclusion in the trial court. The fact that the appeals court is even hearing Bruno's appeal at this stage — before any second trial has taken place — is a sign from the appeals court that the feds are not following the Constitution and the trial judge in Albany ought to have known that. Joe Bruno — nearing the end of his distinguished public career at age 84 — is now a symbol of fidelity to the Constitution and an obstacle to a political Department of Justice that lacks that fidelity. If the government can violate a principle as fundamental and universally accepted as the prohibition on double jeopardy — and do so in plain sight by changing the name of a charge — there is no limit to what it can do. Before he became a tyrant, Abraham Lincoln was a very successful trial lawyer. Demonstrating the propensity of an adversary to mislead, he once asked a jury, "If you call a tail a leg, how many legs does a dog have?" Then he answered: "Four, because calling a tail a leg doesn't make it a leg." Calling an old crime by a different name does not change its essence. A federal appeals court can put a stop to this miscarriage of justice, and it should do so before it spreads its ugly unconstitutional tentacles across the land and Joe Bruno has unwanted company.
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Post by philunderwood on Jul 25, 2013 9:12:54 GMT -5
Liberty and Safety By Judge Andrew P. Napolitano www.JewishWorldReview.com | When Edward Snowden revealed that the federal government, in direct defiance of the Fourth Amendment to the Constitution, was unlawfully and unconstitutionally spying on all Americans who use telephones, text messaging or emails to communicate with other persons, he opened a Pandora's box of allegations and recriminations. The allegations he unleashed are that Americans have a government that assaults our personal freedoms, operates in secrecy and violates the Constitution and the values upon which it is based. The recriminations are that safety is a greater good than liberty, and Snowden interfered with the ability of the government to keep us safe by exposing its secrets, and so he should be silenced and punished. In the course of this debate, you have heard the argument that we all need to sacrifice some liberty in order to assure our safety, that liberty and safety are in equipoise, and when they clash, it is the government that should balance one against the other and decide which shall prevail. This is, of course, an argument the government loves, as it presupposes that the government has the moral, legal and constitutional power to make this satanic bargain. It doesn't. Roman emperors and tribal chieftains, King George III and French revolutionaries, 20th-century dictators and 21st-century American presidents all have asserted that their first job is to keep us safe, and in doing so, they are somehow entitled to take away our liberties, whether it be the speech they hate or fear, the privacy they capriciously love to invade or the private property and wealth they salaciously covet. This argument is antithetical to the principal value upon which America was founded. That value is simply that individuals — created in the image and likeness of God and thus possessed of the freedoms that He enjoys and has shared with us — are the creators of the government. A sovereign is the source of his own powers. The government is not sovereign. All the freedom that individuals possess, we have received as a gift from G0D, who is the only true sovereign. All of the powers the government possesses it has received from us, from our personal repositories of freedom. Thomas Jefferson recognized this when he wrote in the Declaration of Independence that our rights are inalienable — they cannot be separated from us — because we have been endowed with them by our Creator. James Madison, who wrote the Constitution, observed that in the history of the world, when freedom has been won, it happened because those in power begrudgingly permitted freedom as a condition of staying in power or even staying alive. But not in America. In America, the opposite occurred when free people voluntarily permitted the government to exercise the limited power needed to protect freedom. That is known as "the consent of the governed." To Jefferson and Madison, a government lacking that consent is illegitimate. So, the principal author of the Declaration of Independence and the principal author of the Constitution were of one mind on this: All persons are by nature free, and to preserve those freedoms, they have consented to a government. That was the government they gave us — not power permitting liberty, but liberty permitting power — and the instrument of that permission was the Constitution. The Constitution was created by free men to define and limit the government so it can defend but not threaten our freedoms. Since only free persons can consent to a government, the government cannot lawfully exist without those consents. Here is where the modern-day tyrants and big-government apologists have succeeded in confusing well-meaning people. They have elevated safety — which is a goal of government — to the level of freedom — which created the government. This common and pedestrian argument makes the creature — safety — equal its creator — freedom. That is a metaphysical impossibility because it presumes that the good to be purchased is somehow equal to the free choices of the purchaser. What does this mean? It means that when politicians say that liberty and safety need to be balanced against each other, they are philosophically, historically and constitutionally wrong. Liberty is the default position. Liberty is the essence of our natural state. Liberty cannot possibly be equal to a good we have instructed the government to obtain. What is the only moral relationship between liberty and safety? It cannot be balance, because liberty and safety are not equals, as one created the other. It can only be bias — a continual predisposition toward and preference for freedom. Every conceivable clash between the free choices of persons and their instructions to their government to safeguard freedom must favor the free choices because freedom is inalienable. Just as I cannot authorize the government to take away your freedom any more than you can authorize it to take away mine, a majority of all but one cannot authorize the government in a free society to take freedom from that one individual. So if somehow freedom and safety do clash, it is the free choice of each person to resolve that clash for himself, and not one the government can morally make. The government will always make choices that favor its power because, as Ludwig von Mises reminded us, government is essentially the negation of freedom. If anyone truly believes that by silencing him or monitoring him or taxing him the government keeps him safe, and that those are the least restrictive means by which to do so, let that person surrender his own speech and privacy and wealth. The rest of us will retain ours and provide for our own safety. The reasons we have consented to limited government are to preserve the freedom to pursue happiness, the freedom to be different and the freedom to be left alone. None of these freedoms can exist if we are subservient to the government in the name of safety or anything else.
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Post by philunderwood on Aug 1, 2013 9:44:33 GMT -5
Liberty's Backlash By Judge Andrew P. Napolitano www.JewishWorldReview.com | Last week, Justin Amash, the two-term libertarian Republican congressman from Michigan, joined with John Conyers, the 25-term liberal Democratic congressman from the same state, to offer an amendment to legislation funding the National Security Agency (NSA). If enacted, the Amash-Conyers amendment would have forced the government's domestic spies when seeking search warrants to capture Americans' phone calls, texts and emails first to identify their targets and produce evidence of their terror-related activities before a judge may issue a warrant. The support they garnered had a surprising result that stunned the Washington establishment. It almost passed. The final vote, in which the Amash-Conyers amendment was defeated by 205 to 217, was delayed for a few hours by the House Republican leadership, which opposed the measure. The Republican leadership team, in conjunction with President Obama and House Minority Leader Nancy Pelosi, needed more time for arm-twisting so as to avoid a humiliating loss. But the House rank-and-file did succeed in sending a message to the big-government types in both parties: Nearly half of the House of Representatives has had enough of government spying and then lying about it, and understands that spying on every American simply cannot withstand minimal scrutiny or basic constitutional analysis. The president is deeply into this and no doubt wishes he wasn't. He now says he welcomed the debate in the House on whether his spies can have all they want from us or whether they are subject to constitutional requirements for their warrants. Surely he knows that the Supreme Court has ruled consistently since the time of the Civil War that the government is always subject to the Constitution, wherever it goes and whatever it does. As basic as that sounds, it is not a universally held belief among the power elites. Gen. James Clapper, the current boss of all domestic spies, obviously lied when he testified under oath to a Senate committee recently that the government was not accumulating massive amounts of data about tens or hundreds of millions of Americans. Gen. Keith Alexander, the head of the NSA, materially misled a House committee when he was asked under oath whether the NSA has the "ability" to listen to phone calls and he stated it lacks the "authority" to do so. Right off the bat, we can see that these senior spies do not feel bound by the laws prohibiting perjury and the misleading of Congress. Congress itself has legislatively attempted to amend the Constitution, knowing that the supreme law of the land can only be amended by three-quarters of the states. The Constitution requires probable cause of criminal activity to be presented to a judge as a precondition of the judge issuing a search warrant. It also requires that the warrant particularly describe the place to be searched or the person or thing to be seized. Yet, Congress told the secret FISA court that it can avoid the Constitution and issue a warrant to any spy looking for the phone calls and electronic communications of anyone in America, without probable cause, without naming the persons whose records are sought and without describing the place to be searched. Secrecy-smitten judges, whose clerks are NSA agents and who are not permitted to keep copies of their own rulings, have gone along with this. Obama, who did not want a national debate on all this before Edward Snowden blew the whistle on it, has backed off of his earlier claims that the feds are not reading emails or listening to phone calls. He has done this, no doubt, in light of unrefuted statements by Snowden and other NSA whistleblowers to the effect that federal spies can with the press of a computer key read emails and hear phone calls. Only after the Snowden revelations did Obama welcome the "debate" in the House. That debate, in which more than half of his own party rejected his spying, lasted precisely 24 minutes. How can a deliberative body of 434 current members debate an issue as monumental as whether the government is bound by the Constitution when it seeks out terrorists in just 24 minutes? Apparently, the House Republican leadership that established the absurd 24-minute rule feared a serious and meaningful public discussion in which its authoritarian impulses would need to confront the Constitution its members swore to uphold. In that 24-minute time span, millions — millions — of Americans' phone calls and emails were swept into the NSA's supercomputers in defiance of the Constitution. There is a political wildfire burning in the land, and we should all be grateful to Snowden for igniting it. The fire eventually will consume the political derelictions of those who have abandoned their oaths to uphold the Constitution so they can sound tough back home. The Amash-Conyers amendment would have required the feds to tell the court the name of the person whose communications they seek and the evidence they have against that person — just as the Constitution requires. And it would have prohibited the NSA dragnets the Constitution obviously was written to prevent. Instead we have the almost unimaginable prospect and the nearly unthinkable reality of the feds claiming that they can legally put every person in America under their privacy-invading scrutiny in order to catch a few dozen evil ones — most of whom were entrapped by the FBI in the first place and never posed a serious danger to the public or the nation. Would we all be safer if the feds could knock down any door they wished and arrest any person they chose? Who would want to live in such a society? What value is the Constitution if those in whose hands we have reposed it for safekeeping are afraid to do so? I expect that the Amash-Conyers amendment will be back on the floor of the House soon. When it is, who will have the courage to preserve, protect and defend personal liberty in a free society?
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Post by philunderwood on Aug 8, 2013 8:31:15 GMT -5
Domestic Spying Is Dangerous to Freedom By Judge Andrew P. Napolitano www.JewishWorldReview.com | How is it that the government can charge Edward Snowden with espionage for telling a journalist that the feds have been spying on all Americans and many of our allies, but the NSA itself, in a public relations campaign intended to win support for its lawlessness, can reveal secrets and do so with impunity? That question goes to the heart of the rule of law in a free society. Since Snowden's June 6th revelations about massive NSA spying, we have learned that all Americans who communicate via telephone or the Internet (who doesn't?) have had all of their communications swept up by the federal government for two-plus years. The government initially claimed that the NSA has gathered only telephone numbers and billing data. Now we know that the NSA has captured and stored the content of trillions of telephone conversations, texts and emails, and can access that content at the press of a few computer keys. All of this happened in the dark, with the permission of President Obama, with the knowledge and consent of fewer than 20 members of Congress who were forbidden from doing anything about it by the laws they themselves had written, and based on secret legal arguments accepted by a secret court that keeps its records secret even from the judges who sit on the court. This massive spying — metadata gathering, as the NSA calls it — was also done notwithstanding statements NSA officials made in public under oath and in secret classified briefings to Congress, which effectively denied it. The denials were in one case admitted to — "least untruthful," as the director of national intelligence later called his own testimony. Then, when even members of Congress who usually support a muscular national security apparatus realized that they, too, had been lied to by the NSA, the NSA responded with its own leaks. It has leaked, for example, that as a consequence of its spying it has prevented at least 50 foreign-originated plots from harming Americans. It eventually backed off that number and declined to reveal with specificity what it independently learned and how that knowledge foiled the plots. But we do know that its colleagues in the FBI were participants in many of those plots, which means they weren't real plots at all — just government stings going after dopes and dupes. Last week, the NSA leaked that it captured actionable intelligence of grave and imminent danger to our embassies in the Middle East. The implication it wants you to draw here is that because it caught al-Qaida operatives talking in code in Yemen about deadly deeds they plan to perpetrate in the Arabian Peninsula, somehow the NSA's spying on 300 million innocent Americans is constitutional, lawful, effective and therefore worth the loss of freedom. Earlier this week, we learned that other federal agencies of alphabet nomenclature — the DHS, the DoJ, the DoD, the DEA, the CIA, the IRS, the FBI — all want access to the NSA's database, and it has shared some of it with most of them. Also this week, former DEA (Drug Enforcement Administration) agents, claiming this has been going on for at least a decade, acknowledged that the DEA regularly receives raw data from the NSA and uses that data to commence criminal investigations. Down the slippery slope we go. The whole NSA spying apparatus was sold to Congress as a limited mechanism for combating foreign terrorists. How putting the intimate thoughts of all Americans who use telephones and the Internet under the federal microscope helps to fight foreign terrorists has never been explained in a public court — only in a secret one. But using this extra-constitutional means to fight crime brings us closer to a Soviet-style and value-free police state. The Constitution intentionally has placed values in the path of law enforcement and national security so as to maintain our natural rights. Those values are generally articulated throughout the Constitution and specifically addressed in the Fourth Amendment. The linchpin of those values is the natural right to be left alone. All persons — even bad guys — have that inalienable right, and the government may only invade that right when it can identify a bad guy and articulate the probable cause it has to believe he is committing criminal acts. The rest of us — those for whom there is no probable cause of criminal acts — retain that right, and it cannot be taken away from us by the supine acquiescence of Congress or an unnamed judge in a secret court. That constitutional requirement — and that requirement alone — has kept Americans free from Soviet-style persecutions. Now comes Obama, who is quarterbacking the most massive end run around the Constitution in modern times by invading everyone's right to be left alone in the name of national security, but in reality for any governmental purpose the government wishes. And for the unfortunate people whose criminal prosecutions have commenced from the NSA's supposedly anti-terror spying, the feds are refusing to reveal to lawyers what the source of the negative information against them was. That, of course, violates the constitutionally protected right to confront all of one's accusers, especially those who have been paid for their accusations. What's going on here? It is painfully obvious that the government is not troubled by its own violation of the Constitution. The people in the government who have done this are far more concerned with their retention of power than they are with protecting our personal liberties. That explains their perverse view that when Snowden frustrates them with a whistle-blowing leak, he can be prosecuted, but when they rebut him with their own leaks, they are to be lauded. That is not the rule of law in a free society. What will the NSA spies seek next? Our passwords? We already know the answer to that one. They asked for them last week.
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Post by philunderwood on Sept 5, 2013 8:44:39 GMT -5
War, War, What is it Good For? By Judge Andrew P. Napolitano www.JewishWorldReview.com | President Obama's request for express congressional authorization for a limited aerial invasion of Syria raises profound legal and constitutional questions. For starters, there is simply no legal basis in international law to support an American invasion of Syria. Yet, notwithstanding that, federal law permits the president to commit U.S. military forces anywhere he wants for up to 90 days, without express authorization from Congress. So, why did Obama ask for the authorization he surely knows he already has? Since March 2011, Syria has been in the throes of a civil war. Those seeking to oust the government of President Bashar al-Assad are a mixture of his domestic political opponents, disgruntled former Syrian military officers and dangerous radical foreign Islamist fighters affiliated with al-Qaida. International organizations monitoring the war have put the dead from both sides at more than 100,000 persons. Until last week, the U.S. had steadfastly stayed out of this war, as its outcome is unlikely to affect American national security. Though Assad is a former friend who once famously dined with then Sen. John Kerry, he is now a monster willing to go to extremes to stay in power. On the other hand, our allies in the region surely would prefer that the Syrian government not be run by or under the influence of al-Qaida, and federal law prohibits Americans and the U.S. government from aiding al-Qaida. Hence, our neutrality — until Obama made a thoughtless and bravado-driven comment during his re-election campaign in August 2012, and now fears that his bluff has been called. In his comment, the president, sounding like an international policeman — a position he condemned when President George W. Bush sounded that way — declared that if the Syrian government used chemical weapons against its adversaries, the very use of which is prohibited by all civilized norms, America would revisit its neutrality. In reliance upon what he now claims is sound intelligence showing government use of chemical weapons on innocent Syrian civilians, Obama last week stated an intention to engage in a limited military invasion of Syria so as to weaken its resolve and ability to fight the rebels further. Never mind that the photos shown by Obama's folks of aid workers ministering to the supposed victims of government gassing show the workers without gas masks or gloves, and never mind that the Assad regime has permitted U.N. weapons inspectors unfettered access to its materiel, and never mind that the president wants to invade Syria before the weapons inspectors issue their report. The president wants us to believe that the Assad regime intentionally gassed a thousand Syrian innocents who were of no military value to the rebels or threat to the regime — and among whom were, according to former House Speaker Nancy Pelosi, D-Calif., "hundreds of children." Even if all this took place as Obama claims, can he lawfully bomb Syria to punish its government for violating international norms or to deter it from doing so again? In a word: No. International law recognizes only three lawful routes to the use of military force. It recognizes the right of every country to launch military force in order to prevent its own borders from being invaded or to subdue those who commenced an invasion. It also recognizes the ability of any U.N. member state to come to the aid of any other U.N. member state when one of them has been invaded. And treaties to which the U.S. and Syria are parties permit limited purpose invasions when approved by the U.N. None of these lawful scenarios applies to Syria. Can Obama just launch an invasion of Syria even if it would be unlawful and even if Congress says no? Because of the vicissitudes of history, the personalities of presidents and the myopic compromises of past Congresses, the area of presidential war-making has different legal and constitutional ramifications. Under the Constitution, only Congress can authorize the offensive use of military force. James Madison's notes from the Constitutional Convention in 1787 make it obvious that the Framers were nearly unanimous in their resolve to keep the war-making power away from the president and repose it exclusively with Congress. They did this clearly and unambiguously in Article I, Section 8 of the Constitution. Notwithstanding the precise language of the Constitution and the history of the nation's birth, the War Powers Resolution (WPR), a federal statute enacted in 1973 over President Nixon's veto, does permit the president on his own to use the military for offensive wars for a maximum of 90 days. Thus, under current federal law, Obama may lawfully bomb Syria even if Congress declines to authorize him to do so and even though such an act would violate international law. But the WPR is profoundly unconstitutional because it cedes Congress' constitutional war-making power to the president. The WPR was an ill-conceived political compromise effectuated by a Watergate-weakened president, congressional hawks who approved of Nixon's unilateral invasion of Cambodia and sober congressional heads more faithful to the separation of powers. Yet, the Supreme Court has ruled consistently that the transfer of constitutional powers among the branches of the federal government is unconstitutional, even if popular and consensual, unless brought about by an amendment to the Constitution. Thus, Congress can no more let the president start wars than the president can let Congress appoint federal judges, lest the Constitution have no meaning or force of law. So why does Obama want Congress' approval to do that which international law prohibits and federal law permits? Obama knows that war is the health of the state: It unites political adversaries around common patriotic-sounding goals and often generates support for those in harm's way and resources for the government officials who sent them there. But, will another war enhance our freedoms or our safety? Will it add to our debt? Will it trash the law? Can we bomb and kill for bragging rights? The answers are obvious, and they don't justify war.
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Post by Ritty77 on Sept 5, 2013 16:22:05 GMT -5
COMMUNITY ORGANIZER GOES TO WARBy Ann Coulter September 4, 2013 Oh, how I long for the days when liberals wailed that "the rest of the world" hated America, rather than now, when the rest of the world laughs at us. With the vast majority of Americans opposing a strike against Syria, President Obama has requested that Congress vote on his powers as commander in chief under the Constitution. The president doesn't need congressional approval to shoot a few missiles into Syria, nor -- amazingly -- has he said he'll abide by such a vote, anyway. Why is Congress even having a vote? This is nothing but a fig leaf to cover Obama's own idiotic "red line" ultimatum to President Bashar al-Assad of Syria on chemical weapons. The Nobel Peace Prize winner needs to get Congress on the record so that whatever happens, the media can blame Republicans. No Republican who thinks seriously about America's national security interests -- by which I mean to exclude John McCain and Lindsey Graham -- can support Obama's "plan" to shoot blindly into this hornet's nest. It would be completely different if we knew with absolute certainty that Assad was responsible for chemical attacks on his own people. (I'm still waiting to see if it was a Syrian upset about a YouTube video.) It would be different if instead of killing a few hundred civilians, Assad had killed 5,000 civilians with poison gas in a single day, as well as tens of thousands more with chemical weapons in the past few decades. It would be different if Assad were known to torture his own people, administer summary executions, rapes, burnings and electric shocks, often in front of the victim's wife or children. It would be different if Assad had acted aggressively toward the United States itself, perhaps attempting to assassinate a former U.S. president or giving shelter to terrorists who had struck within the U.S. -- someone like Maj. Nidal Hasan, the Fort Hood terrorist. It would be different if Assad were stirring up trouble in the entire Middle East by, for example, paying bounties to the families of suicide bombers in other countries. It would also be different if we could be sure that intervention in Syria would not lead to a multi-nation conflagration. It would be different if we knew that any action against Syria would not put al-Qaida or the Muslim Brotherhood in power, but rather would result in a functioning, peaceful democracy. And it would be different if an attack on Syria would so terrify other dictators in the region that they would instantly give up their WMDs -- say, Iran abandoning its nuclear program. If all of that were true, this would be a military intervention worth supporting! All of that was true about Iraq, but the Democrats hysterically opposed that war. They opposed it even after all this was known to be true -- indeed, especially after it was known to be true! The loudest opponent was Barack Obama. President Saddam Hussein of Iraq had attempted to assassinate former president George H.W. Bush. He gave shelter to Abdul Rahman Yasin, a conspirator in the 1993 World Trade Center bombing. He paid bounties to the families of suicide bombers in Israel. Soon after Bush invaded Iraq in 2003, Libya's Moammar Gadhafi was so terrified of an attack on his own country, he voluntarily relinquished his WMDs -- which turned out to be far more extensive than previously imagined. Al-Qaida not only did not take over Iraq, but got its butt handed to it in Iraq, where the U.S. and its allies killed thousands of al-Qaida fighters, including the leader of al-Qaida in Iraq, Abu Musab al-Zarqawi. Iraq became the first genuine Arab democracy, holding several elections and presiding over a trial of Saddam Hussein. Does anyone imagine that any of this would result from an Obama-led operation in Syria? How did his interventions work out in Egypt and Libya? As for chemical weapons -- the casus belli for the current drums of war -- in a matter of hours on March 16, 1988, Saddam Hussein slaughtered roughly 5,000 Kurdish civilians in Halabja with mustard, sarin and VX gas. The victims blistered, vomited or laughed hysterically before dropping dead. Thousands more would die later from the after-effects of these poisons. Saddam launched nearly two dozen more chemical attacks on the Kurds, resulting in at least 50,000 deaths, perhaps three times that many. That's to say nothing of the tens of thousands of Iranians Saddam killed with poison gas. Indeed, in making the case against Assad recently, Secretary of State John Kerry said his use of chemical weapons put him in the same league as "Adolf Hitler and Saddam Hussein." Not even close -- but may we ask why Kerry sneered at the war that removed such a monster as Hussein? There were endless United Nations reports and resolutions both establishing that Saddam had used chemical weapons and calling on him to give them up. (For the eighth billionth time, we did find chemical weapons in Iraq, just no "stockpiles." Those had been moved before the war, according to Saddam's own general, Georges Sada -- to Syria.) On far less evidence, our current president accuses Assad of using chemical weapons against a fraction of the civilians provably murdered with poison gas by Saddam Hussein. So why did Obama angrily denounce the military operation that removed Hussein? Why did he call that a "war of choice"? Obama says Assad -- unlike that great statesman Saddam Hussein -- has posed "a challenge to the world." But the world disagrees. Even our usual ally, Britain, disagrees. So Obama demands the United States act alone to stop a dictator, who -- compared to Saddam -- is a piker. At this point, Assad is at least 49,000 dead bodies short of the good cause the Iraq War was, even if chemical weapons had been the only reason to take out Saddam Hussein. COPYRIGHT 2013 ANN COULTER www.anncoulter.com/columns/2013-09-04.html
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Post by Ritty77 on Sept 10, 2013 9:50:16 GMT -5
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Post by philunderwood on Sept 12, 2013 9:22:06 GMT -5
The President's Embarrassment By Judge Andrew P. Napolitano www.JewishWorldReview.com | When Secretary of State John Kerry, apparently irritated by a lack of sleep, gave a snippy and what he thought was an unrealistic reply to a reporter's question at a London press conference last weekend, he hardly could have imagined the world's response. Asked whether there is anything Syrian President Bashar al-Assad could do at this relatively late hour to avoid an American invasion, Kerry told an international audience that if Assad gave up whatever chemical weapons his government possesses, the U.S. would forgo an invasion. But not to worry, Kerry added. Assad is not going to do that, and we will end up invading Syria in order to vindicate President Obama's threat to do so. For two days, Obama remained silent on this as his arch-nemesis, Russian President Vladimir Putin, grabbed the spotlight and the high moral ground. Putin, sounding more like a Nobel Peace laureate than the killer he is known to be, offered to broker a deal whereby the Syrian chemical stockpile would be surrendered to the United Nations, the Syrian government could go about defending itself from the al-Qaida-driven effort to take it over, and the U.S. would leave Syria alone. Obama is generally firm in his belief that he needs to vindicate the threat he made last summer when he was trying to outdo Mitt Romney on sounding tough. It was then that Obama threatened to intervene in the Syrian civil war if chemical weapons were used by the government. Nevertheless, hating the international embarrassment visited upon him when suddenly Putin seems more reasonable than he does, Obama conceded to my Fox News colleague Chris Wallace that the Kerry-inspired and Putin-pushed idea seemed worth considering. And then the Syrian government agreed. Just last week, the president was arguing that only military force would show the world that the U.S. means what it says. Just last week, he realized that he needed political cover in order to justify an unpopular invasion, and so he asked Congress for permission to invade Syria, even while knowing that he already has the legal authority to invade on his own. Just last week, he dispatched his political team, including former Secretary of State Hillary Clinton, to argue that war is the only way to go. And just last week, he intimated that he might bomb Syria even if Congress said no. What happened? What happened was the president's head counters polled their allies on Capitol Hill earlier this week and informed him that he was about to become the first American president in history to seek war-making authority from Congress and have it denied to him, including by many members of his own political party. The president cannot even say for sure that the weapons he and his advisers claim were used were in fact deployed by the Assad regime. Nor can they state with intellectual honesty that the freedom or safety of Americans is affected by any weaponry used in this civil war 6,700 miles from our shores. The legal linchpin of American involvement in a foreign war is not American hatred of one of the weapons systems used in the war, but the imminence of danger to American freedom and safety if we stay out. Treaties to which the U.S. is a party and the body of international law to which the U.S. subscribes make clear that the U.S. cannot lawfully use military force to punish the government of another country without first demonstrating that the other country's military poses an immediate threat of danger to the U.S. Obama and Kerry have been unable to address this. They also have been unable to address how the U.S. can punish Syria for using weapons that the U.S. and the U.N. have outlawed but Syria has not. Put aside the fact that Syria is a client state of Russia and hence will be protected by it at the U.N., Syria never agreed to the U.N. prohibition on chemical weapons in the first place. So the U.N. is without lawful authority to authorize any violent American intercession in Syria over the use of these weapons. We don't know whether the Syrian government used chemical weapons on its own people who may or may not have been combatants in its civil war. But we do know that the government of Syria — like all governments — has a natural right to defend itself from violent attacks by terrorist groups. We also know that the U.S. used chemical weapons to kill hundreds of Vietcong soldiers in South Vietnam in 1965, and used them as well to kill 76 Americans in Waco, Texas, where federal agents murdered peaceful religious fanatics, including their children, in 1993. Can you imagine the response if another country sought to use violence to punish the Clinton administration for that? What have we here? We have a president heedless of his duty to uphold the Constitution by keeping the government within its confines, disdainful of international law when it fails to suit his purposes, and contemptuous of a Congress he once controlled when it feels the heat from the American people who have had enough of being lied to and tricked into wars. The American people have come to realize that war is the mother's milk of big government: It kills innocents, increases taxes or borrowing, diminishes personal freedom, and unleashes irrational fears and hatreds, and the government continues to grow. While all of this has been consuming us, the federal debt is approaching $17 trillion and Obama wants to borrow another trillion, the NSA has been exposed as spying on every computer and every mobile phone in the country for the past two years at the insistence of the Obama administration, and the fiscal bankruptcy of Obamacare is now just below the horizon. Does the president really expect the American people to approve his bombing and killing just to avoid his personal embarrassment? Or is it his professional incompetence he wants to hide?
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Post by philunderwood on Sept 19, 2013 8:33:35 GMT -5
Spying and Lying By Judge Andrew P. Napolitano www.JewishWorldReview.com | When Edward Snowden first revealed the spying the NSA has been conducting on what was then thought to be only customers of Verizon, the government was embarrassed, but it reluctantly acknowledged that Snowden revealed a truth. He had, after all, displayed an accurate and faithful copy of a judicial order signed by a FISA Court judge directing Verizon to give billing information to NSA agents about its 113,000,000 American customers. Not to worry, the government's apologists offered, this is only telephone macro-metadata, meaning information about who spoke to whom, when they talked and for how long, and where they were when they talked, but not what they actually said to each other. When Gen. Keith Alexander, the head of the NSA, stated under oath at a House hearing that his spies lack the authority to capture content, he avoided addressing whether they have the ability to do so, because he knows they do. His boss, James Clapper, the director of national intelligence and a less finessed liar than the general, said under oath at a Senate hearing flatly that the feds were not gathering massive amounts of data about hundreds of millions of Americans, when he knew that they were. And President Obama himself has stated on a few occasions that the government "is not reading" your emails or "listening" to your phone conversations, even though he knows they can. Since the essence of spying is stealing and keeping secrets, we should not be surprised when that essence is supported by deception and lying. But lying to one's employers (the American people) is a fireable offense, and lying under oath (to Congress) is a criminal offense. And a government that lies over and over again to the people it is lawfully obliged to serve is not believable and leads to lawlessness. Obama should have known better than to use Clintonesque language by denying that something "is" happening at the moment he is discussing it. In reality, Obama knows his spies have exceeded their authority under even a broad reading of the Patriot Act and the FISA laws and have grossly failed to comply with their oaths to uphold the Fourth Amendment. That amendment — which requires judicially issued search warrants based on identifiable probable cause of unlawful behavior, warrants that particularly describe the place to be searched or the person or thing to be seized — was written to prevent all governmental dragnets, fishing expeditions, warrantless invasions of privacy and general warrants (those, like the FISA Court warrants, that do not name the place to be searched or the person or thing to be seized). It was animated by the Framers' determination to prevent the new federal government from doing to Americans what the British had done to the colonists. However, in some of my conversations with folks in the government, I have learned that when the government gathers intelligence in order to prevent the future occurrence of an act of domestic terror, as opposed to when it gathers evidence in order to solve a crime that has already been committed, it believes it is not subject to the constraints of the Fourth Amendment. The feds have based their massive spying apparatus on a secretly stated and utterly ignoble lie — that the Constitution only restrains them when they are engaged in criminal investigations, and not for any other purposes. Such an argument is Stalinesque in its sweep, has no support in history, law or Supreme Court jurisprudence, and is a subterfuge concocted to dupe the public, the media and the judiciary into overlooking, accepting and authorizing the broadest governmental assault on constitutionally protected freedoms since the Alien and Sedition Acts. We know that the Fourth Amendment was written to restrain the government for all purposes because the British government tormented the Framers and violated their right to privacy for many non-criminal-based governmental purposes, such as tax collecting, speech suppressing and intelligence gathering. The government's argument, if accepted, would permit the government to engage in a vast array of unlawful human indignities from torture to pre-crime detention to the presence of the government in the bedroom, the boardroom and the confessional, so long as it was not trying to solve a crime. The reason you probably have not heard this argument is that the feds will only make it in secret to their favorite secret court. In March 2009, Judge Reggie B. Walton, the chief judge of that secret court, the FISA Court, complained in secret about what the court had been told in secret. In that court, only NSA agents and Department of Justice lawyers appear. The court's only source for its facts and legal arguments is the NSA. We don't know what deceptions the NSA visited on the court from which it receives general warrants and the involvement of which forms a basis for Obama's laughable argument that his spies are supervised by the judiciary. But we know that Walton was lied to. He wrote: "To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court's wishes. The Court no longer has such confidence." Walton undoubtedly knew then what we know now: that the NSA has in its possession the content of every telephone conversation, text message and email sent into, out of or within the United States in the past two and a half years. And it has shared all of that with other government agencies and foreign governments. And it has lied to him in order to get all that. Is this the government the Framers gave us? Or has it been perverted beyond recognition? What shall we do about it? Thomas Paine, when confronted with British government-orchestrated assaults on liberty not nearly as pervasive as this NSA spying, remarked that it is the duty of the patriot to protect the liberties of his countrymen from their government. Where are those patriots when we need them?
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Post by philunderwood on Sept 26, 2013 14:00:45 GMT -5
Is the FISA Court Constitutional? By Judge Andrew P. Napolitano www.JewishWorldReview.com | After President Richard Nixon left office in 1974, a bipartisan congressional investigation discovered many of his constitutional excesses. Foremost among them was the use of FBI and CIA agents to spy on Americans in violation of federal law and the Fourth Amendment to the Constitution. Nixon argued that the government needed to monitor "subversives" in order to shore up the "national security." As for breaking the law and violating the Constitution, Nixon defended himself by proclaiming in a now infamous post-presidency interview with David Frost that: "When the president does it, that means that it is not illegal." That Henry VIII-like statement was too much for Congress to bear in the Carter years, so it enacted the Foreign Intelligence Surveillance Act (FISA), which prohibited domestic spying unless the feds first obtained search warrants for surveillance from a federal judge sitting on a newly created FISA court. The FISA court, populated by sitting federal judges assigned there by the chief justice, was charged with issuing secret general warrants based upon secret evidence or no evidence and all in violation of the Constitution, which requires the presentation of evidence that constitutes probable cause of crime as the sole linchpin for the issuance of a search warrant. When Edward Snowden, the former contractor to the National Security Administration (NSA), revealed that since at least 2004 the FISA court has been issuing general warrants to NSA agents and to telecoms and Internet service providers directing that the NSA capture in bulk the content of telephone calls and emails and texts sent into, out of or within the United States, we learned a bit more about the operation of the FISA court. What we learned makes it self-evident that the FISA Court itself is unconstitutional. The Constitution establishes a limited federal government, which includes a limited federal judiciary. Because the Framers feared that federal judges might act as super-legislatures and go about declaring unconstitutional whatever legislation or presidential actions displeased them, they wrote into Article III of the Constitution the absolute prerequisite of the existence of a case or controversy before the jurisdiction of any federal court could be invoked. The case or controversy requirement was drafted to prevent courts from rendering advisory opinions whereby they simply declared that they had certain authority or that some statute or executive act was unconstitutional. The case or controversy requirement has been uniformly interpreted by the Supreme Court to require either a plaintiff whose allegations state a case of real palpable harm against a defendant, or a defendant in a criminal case who is in real jeopardy of losing life, liberty or property at the hands of the government before a federal court may have jurisdiction. The case or controversy requirement demands that there be real adversity between two or more distinct entities each of which has a stake in the outcome of a dispute before a federal court can exercise any jurisdiction. Federal courts can only resolve disputes; they cannot rule with finality in the abstract or when approached by only one party. They can grant preliminary temporary relief to one party — in order to freeze the status quo and in anticipation of an adversarial contest on the merits — but they cannot rule when only one party is noticed and shows up. This is precisely how the FISA court functions, and yet we have no merit-based ruling by the Supreme Court on its constitutionality. We do, however, have a solid indication as to how the court would rule. The seminal case in Supreme Court history is Marbury v. Madison (1803). In that case, Congress had attempted to give original jurisdiction to the Supreme Court to hear a dispute that the Constitution said could only be heard by that court in an appellate setting. In denying Marbury's meritorious claim, the court held definitively that Congress cannot alter the Constitution's requirements that serve as a precondition for invoking the jurisdiction of a federal court. But this is just what Congress did with FISA. In the FISA court, only the government appears, seeking a generalized search warrant without regard to the facts of any specific case. There is no case or controversy in the constitutional sense as there is no adversariness: No plaintiff is suing a defendant, and no defendant is being prosecuted by the government. Absent adversariness, the federal courts have no jurisdiction to do anything. This flawed system is complicated even further by the fact that should the FISA court deny an application for a general warrant because it believes the government's procedures to be illegal or unconstitutional, those court orders are non-binding and the government has ignored them. Unenforceable rulings that may be disregarded by another branch of the government are not judicial decisions at all, but impermissible advisory opinions prohibited by the Framers. When a FISA court judge rules that the NSA has the constitutional power to spy on Americans about whom it has no evidence of wrongdoing, as one judge did two weeks ago, because that ruling did not emanate out of a case or controversy — no one was in court to dispute it — the court is without authority to hear the matter, and thus the ruling is meaningless. By altering the constitutionally mandated requirement of the existence of a case or controversy before the jurisdiction of the federal courts may be invoked, Congress has lessened the protection of the right to be left alone that the Framers intentionally sought to enshrine. But don't expect the government to wake up to this threat to our freedom. Its consistent behavior has demonstrated that it doesn't care whether it violates the Constitution. Instead, expect the president's secret agents and the politicians who support them to hide their wrongdoing behind more layers of secrecy.
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