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Post by philunderwood on Oct 3, 2013 7:39:28 GMT -5
Government Looking for Witches Will Find Them By Judge Andrew P. Napolitano www.JewishWorldReview.com | While the nation's political class has been fixated on a potential government shutdown in Washington this week, the NSA has continued to spy on all Americans and by its ambiguity and shrewd silence seems to be acknowledging slowly that the scope of its spying is truly breathtaking. The Obama administration is of the view that the NSA can spy on anyone anywhere. The president believes that federal statutes enable the secret FISA court to authorize the NSA to capture any information it desires about any persons without identifying the persons and without a showing of probable cause of criminal behavior on the part of the persons to be spied upon. This is the same mindset that the British government had with respect to the colonists. It, too, believed that British law permitted a judge in secret in Britain to issue general warrants to be executed in the colonies at the whim of British agents. General warrants do not state the name of the place to be searched or the person or thing to be seized, and they do not have the necessity of individualized probable cause as their linchpin. They simply authorize the bearer to search wherever he wishes for whatever he wants. General warrants were universally condemned by colonial leaders across the ideological spectrum — from those as radical as Sam Adams to those as establishment as George Washington, and from those as individualistic as Thomas Jefferson to those as big-government as Alexander Hamilton. We know from the literature of the times that the whole purpose of the Fourth Amendment — with its requirements of individualized probable cause and specifically identifying the target — is to prohibit general warrants. And yet, the FISA court has been issuing general warrants and the NSA executing them since at least 2004. Last week we learned in a curious colloquy between members of the Senate Select Intelligence Committee and Gen. Keith Alexander and Deputy Attorney General James Cole that it is more likely than not that the FISA court has permitted the NSA to seize not only telephone, Internet and texting records, but also utility bills, credit card bills, banking records, social media records and digital images of mail, and that there is no upper limit on the number of Americans' records seized or the nature of those records. The judges of the FISA court are sworn to secrecy. They can't even possess the records of what they have done. There is no case or controversy before them. There is no one before them to oppose what the NSA seeks. They don't listen to challenged testimony. All of this violates the Constitution because it requires a real case or controversy before the jurisdiction of federal courts may be invoked. So when a FISA court judge issues an opinion declaring that NSA agents may spy to their hearts' content, such an opinion is meaningless because it did not emanate out of a case or controversy. It is merely self-serving rhetoric, unchallenged and untested by the adversarial process. Think about it: Without an adversary, who will challenge the NSA when it exceeds the "permission" given by the FISA court or when it spies in defiance of "permission" denied? Who will know? For this reason, the FISA court is unconstitutional at best and not even a court at worst. It consists of federal judges administratively approving in secret the wishes of the government. By not adjudicating a dispute, which is all that federal judges can do under the Constitution, these judges are not performing a judicial function. Rather, they are performing a clerical or an executive one, neither of which is contemplated by the Constitution. And yet, the president and his secret agents and the politicians who support them would have you believe that the NSA's spying has been approved by bona fide federal courts. It has not. Does the Constitution permit the federal government to put us all under a microscope? It does not. The government is supposed to work for us and derive its powers from the consent of the governed. Do you know anyone who consented to all this? I do not. The traditional bar that the government must meet in order to begin gathering data on any of us is individualized articulable suspicion about criminal behavior. The purpose of that requirement is to prevent witch hunts and inquisitions and knocks on doors in the night. Without that bar, there are no limits as to whom the feds can pursue. What will become of us if the feds can watch our every move and hear our every conversation and learn our every expenditure and read our every email and find out what we eat and whom we love and how we live? There are well over 4,500 federal crimes. The feds can find something wrong that anyone has done. Stalin's chief of secret police, the monster Lavrenti Beria, once famously proclaimed: "Show me the man and I will find you the crime." History teaches that a government on a witch hunt, unconstrained by law or Constitution, will not stop until it can brand someone as a witch. And an unbridled inquisition will not stop until it finds a heretic. The Constitution simply never entrusted the people who run the government with this awesome power. Rather, in the Fourth Amendment, it prohibited it. If the right to life, liberty and the pursuit of happiness — which are the stated reasons for forming the United States of America in the first place — mean anything, they mean that we all possess the inalienable right to be different and the inalienable right to be left alone. Neither of these rights can be honored when the government knows all. And when the government knows all, and doesn't like what it knows, we will have an authoritarian state far more odious than any history has ever known. On the face of an all-knowing secret government are large and awful eyes — and no smile.
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Post by philunderwood on Oct 10, 2013 10:47:27 GMT -5
Before You Rejoice... By Judge Andrew P. Napolitano www.JewishWorldReview.com | Before you rejoice that the government has seized an alleged terrorist in Libya who was indicted for planning the notorious 1998 U.S. embassy bombings in Africa, before you join the House of Representatives in a standing ovation for the Capitol Hill Police who killed a woman whose car struck a White House fence and who then drove away at a high speed, and before you commend the New York Police Department for quickly getting to the bottom of an alleged assault by a motorcycle gang that tormented a young family on a city street, please give some thought to the rule of law. Last weekend, a team of Navy SEALs kidnapped a Libyan, Abu Anas al-Libi, off of a public street in Tripoli. The Navy men did not have a warrant for his arrest, did not have the permission of the local authorities or the Libyan government to carry out this kidnapping, and were unlawfully present bearing arms in public in Libya. Many of al-Libi's alleged accomplices already had been arrested, prosecuted and convicted in the U.S. The U.S. could have sought his extradition, as it did with some of them, had President Obama not bombed the American-friendly government of Col. Moammar Gadhafi out of existence, without a congressional declaration of war. Obama apologists have praised this maneuver as a bloodless way to obtain justice without using drones to kill. (How low we have sunk when Obama can be praised for not executing someone with a drone.) Secretary of State John Kerry, acknowledging that al-Libi is innocent until proved guilty, has claimed that the rule of law was followed here because he will be brought to a civilian U.S. court for trial. Former George W. Bush administration Attorney General Michael Mukasey claimed that because the embassy bombings constituted an act of war, the kidnapping of al-Libi was a lawful wartime assault, and he should be tried before a military tribunal. It borders on the ridiculous for Kerry to profess fidelity to the rule of law when this criminal gambit was anything but. Fact: We are not at war with Libya. Fact: We cannot lawfully — under international law, American law or Libyan law — engage in law enforcement or offensive operations in Libya without the express consent of the local and national authorities. Fact: As a defendant in federal court in the Second Circuit, al-Libi must be brought to a federal judge in New York City within 48 hours of his arrest. Don't hold your breath waiting for him in lower Manhattan, as the feds will "debrief" al-Libi aboard ship before turning him over to federal prosecutors for trial. One can only imagine what that debriefing will be like. It will no doubt consist of torture. That's why the interrogation is being conducted on the high seas, where the government will claim it is free to disobey any federal law. And that's why the Geneva Conventions prohibit housing prisoners of war aboard ship. What kind of government seeks venues in which it can break the law? One that has forgotten that every time Bush made his extra-territorial argument to the Supreme Court, it was rejected. Wherever the American government goes and whatever it does, it remains subject to the confines of the Constitution. Not to worry, administration sources claim, the FBI won't learn of whatever beans al-Libi spills while the CIA is simulating his drowning. Wrong again. While no federal court will admit evidence obtained under torture, the Patriot Act — that monstrosity that permits federal agents to write their own search warrants and FISA court judges to evade the Constitution — requires intelligence interrogators and law enforcement interrogators to share information — even the results of torture. So much for the presumption of innocence, the right to a lawyer, the right to remain silent, the right to be brought before a judge, and the rule of law. The U.S. is a signatory to treaties that prohibit kidnapping, no matter the governmental need for the victim. Just ask Robert Seldon Lady, the former CIA station chief in Milan who was convicted in absentia a few years ago in Italy of kidnapping a Muslim imam there, and then was arrested on an international warrant in Panama this summer. And President George W. Bush himself and others were convicted in absentia of war crimes by a court in Malaysia last year. Can you imagine the outcry if Bush or Lady were kidnapped off of American streets by foreign agents? How can it be lawful for the U.S. government to kidnap innocent foreigners but not for foreign agents to kidnap guilty Americans? While much of the above was going on in secret, two public spectacles played out on American TV last week. One involved a gang of bikers in New York City who chased a family in a Range Rover at high speeds and eventually pulled the driver from his car and beat and kicked him. Eventually the cops caught the gang, but not all gang members will be prosecuted, as at least three of them are cops — and they did nothing to stop the assault. Also last week, a deranged single mom rammed her car into a fence that surrounds the White House. Then she sped toward Capitol Hill, a few blocks away. Instead of using any one of a number of non-lethal procedures to stop her, dozens of police gave chase and fired military-grade weapons wildly at her, hitting one of their own. After containing the car, the cops slaughtered her in a hail of bullets. Then the cops discovered that she was unarmed and had her 1-year-old baby with her. What's going on here? What's going on is the flow of government lawlessness down from the feds to the cops in the streets. Like children observing and imitating their parents' unsanctioned, inappropriate, yet repeated behavior, when cops see the use of the military today to pull off government crimes, to shortcut the law and to evade the Constitution, they arm themselves with military-grade hardware and do the same. In America today, to paraphrase Voltaire, criminals are punished for their crimes, except when they commit them to the sounds of official rejoicing.
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Post by philunderwood on Oct 17, 2013 8:41:08 GMT -5
Debt and Destruction By Judge Andrew P. Napolitano www.JewishWorldReview.com | From April 1917 to November 1919, when Woodrow Wilson borrowed $30 billion to fight World War I, he was able to do so because of the promise he made to lenders that the commitment to repay them would be backed by the full faith and credit of the United States government. At the time, the government's total debt was about $14 billion; so Wilson's painful gambit trebled it. In reality, it was not the full faith and credit of the federal government that promised to repay; it was not the credit worthiness of the federal government at stake; it was not the federal government that paid back the money that was borrowed. That's because the government has no credit or credit worthiness or disposable wealth. Only the taxpayers have that. This is not an academic difference. Wilson knew his creditors could not seize government buildings if he or a successor could not repay the loans in a timely manner. But the IRS could seize private wealth if taxpayers didn't cough up. At the time, the federal income tax was new. In order to get it passed in Congress, Wilson promised that the tax rate on personal incomes would never exceed 3 percent of adjusted gross income, and that it would only be assessed on adjusted gross incomes north of $10,000 a year — the rough equivalent of $250,000 today. Wilson also had a brand-new bank with its own legal printing press at his disposal: the Federal Reserve. With its power, the Federal Reserve could print and lend all the cash it wanted, flood the economy with money, and cheapen the value of the dollar so that when Wilson's $30 billion debt was repaid, it would be done with dollars worth far less — and thus less painful to extract from taxpayers — than those he borrowed. This is, of course, government-induced inflation. It was relatively new in Wilson's era, but it has been practiced by the Fed and accepted by every president from Wilson to Barack Obama. And it can be done without the consent of Congress because Congress already gave the Fed the unlimited power to print cash and lend it. Today, this is done without ink and paper; rather, by pressing a few computer keys. So today, when the president wants to borrow more than the law allows, the Fed can provide the cash, but the president needs a change in the law so as to have the legal authority to commit as yet unborn taxpayers to repay the government's additional debt. While in office, Obama has borrowed about $1.2 trillion a year with the approval of Republicans as well as Democrats in Congress. The lenders are quick to make their loans, because the feds have never failed to extract the cash from taxpayers or borrow more in their names to pay the debt service. Presidents and Congresses don't worry about paying back the principal or paying the debt service, as long as they can continue to borrow more in order to do so. As absurd as it sounds, the federal government borrows money in order to pay the debt service on money it has already borrowed and spent. Is it any wonder that today the government's debt has reached $17 trillion? In his zeal to persuade Congress to let the government borrow another trillion dollars in the next nine months, Obama has stated that raising the debt ceiling will not add to the nation's debt. He is either willfully ignorant or Clintonesque in his use of misleading words. He knows the feds never have declined to borrow whatever they want, whenever they want it, up to the limit of their legal borrowing authority. And they have done so with their eyes on only immediate political needs, with disdain for the economic consequences and with contempt for the future. But the future cannot sustain this much longer. The half-trillion dollars a year the feds now pay in debt service on present and ancient debt is equivalent to one-fifth of all the yearly revenue collected in taxes. And the $1.2 trillion the feds borrow and spend each year is the equivalent of half of all the yearly revenue collected in taxes. If the mindset of borrow and spend and damn the future persists, American society as we know it will collapse as taxpayers reach the tipping point beyond which it will no longer make sense to earn income. Do you think this sounds apocalyptic? Think again. Nearly half of the taxpayers in America are there already. Why should they work, they no doubt reason, when the feds will continue to tax and borrow and transfer wealth to them. The president and all congressional Democrats and most Senate Republicans and about half of the House Republicans want to continue this descent into an economic maelstrom, and they have demonized those brave House and Senate Republicans who have had enough of it. Many courageous congressional Republicans understand the harm the feds have done to the dollar, believe the government must stay within the confines of the Constitution and recognize that borrowing money in order to pay the interest on money already borrowed will lead to perdition — and they are resisting it. Obama says they are holding the Treasury hostage and demanding a ransom. He is wrong again. They are defending the dollar and the Constitution. He is saddling future generations with debt they will not be able to afford. He will turn the IRS into debt collectors for the Chinese government, which is the federal government's largest foreign creditor. The courageous House and Senate Republicans are standing athwart the progressive tidal wave and saying: STOP. I expect they will stand firm. When they do, they will be history's heroes. As for Obama, I suspect he doesn't realize that since the principal of Wilson's $30 billion loan has yet to be repaid, the Treasury is still paying interest on it. Do you know anyone who consented to that?
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Post by philunderwood on Oct 24, 2013 7:55:09 GMT -5
By Judge Andrew P. Napolitano www.JewishWorldReview.com | Every American who values the rights to life, liberty and the pursuit of happiness, every American who enjoys the right to be different and the right to be left alone, and every American who believes that the government works for us and we don't work for the government should thank Edward Snowden for his courageous and heroic revelations of the National Security Agency's gargantuan spying operations. Without Snowden's revelations, we would be ignorant children to a paternalistic government and completely in the dark about what the government sees of us and knows about us. And we would not know that it has stolen our freedoms. When I saw Snowden's initial revelation — a two-page order signed by a federal judge on the FISA court — I knew immediately that Snowden had a copy of a genuine top-secret document that even the judge who signed it did not have. The NSA reluctantly acknowledged that the document was genuine and claimed that all its snooping on the 113,000,000 Verizon customers covered by that order was lawful because it had been authorized by that federal judge. The NSA also claims that as a result of its spying, it has kept us safe. I reject the argument that the government is empowered to take our liberties — here, the right to privacy — by majority vote or by secret fiat as part of an involuntary collective bargain that it needs to monitor us in private in order to protect us in public. The government's job is to keep us free and safe. If it keeps us safe but not free, it is not doing its job. Since the revelations about Verizon, we have learned that the NSA has captured and stored in its Utah computers the emails, texts, telephone conversations, utility bills, bank statements, credit card statements and digital phone books of everyone in America for the past two and a half years. It also has captured hundreds of millions of phone records in Brazil, France, Germany and Mexico — all U.S. allies — and it has shared much of the seized raw American data with intelligence agencies in Great Britain and Israel. Its agents have spied on their girlfriends and boyfriends literally thousands of times, and they have combed the collected raw data and selectively revealed some of it to law enforcement. All of this directly contradicts the Constitution. And, if all of this is not enough to induce one to realize that the Orwellian future is here thanks to the secret governments of George W. Bush and Barack Obama, Snowden also revealed that the NSA can hack into anyone's mobile phone, even when it is turned off , and use each phone as a listening device and as a GPS to track whoever possesses it. When Gen. Keith Alexander, the head of the NSA, was confronted with this litany of unlawful and unconstitutional behavior, he replied by claiming that his spies have saved the U.S. from 54 terrorist plots. He pleaded with lawmakers not to strip him of the power to spy or of the billions they have given him to spend on spying, lest another 9/11 plot befall us. Many Americans were willing to make this trade: spy on 330,000,000 Americans in order to stop 54 plots. But the government lacks the moral and constitutional power to compel this trade, because the right to privacy is a personal, individual and inalienable right, and so it cannot lawfully be taken away by majority vote (which never happened) or by secret fiat (which did happen). The government also lacks the authority to spy without legal constraint on anyone it wishes, because that violates the Constitution and fundamentally changes our open and free society. All-hearing ears and all-seeing eyes and unconstrained power exercised in secret are a toxic mix destined to destroy personal freedom. Now we know that Alexander has lied yet again to a congressional committee. He recently acknowledged that the number of plots foiled is not the stated-under-oath 54, but is either two or three. He won't say which two or three or how spying on every American was the only lawful or constitutional way to uncover these plots. He also won't say why he originally said 54, instead of two or three; but he did say last week that he will retire next spring. This is maddening. The government breaks the law it has been hired to enforce and violates the Constitution its agents have sworn to uphold; it gets caught and lies about it; and no one in government is punished or changes his behavior. Then we realize that the so-called court that authorized all of this is not a court at all. Federal judges may only exercise the judicial function when they are addressing cases or controversies; and their opinions only have the force of law when they emanate from that context. But when federal judges serve an essentially clerical function, they are not serving as judges, their opinions are self-serving and legally useless, and their apparent imprimatur upon spying gives it no moral or legal legitimacy. All of this — which is essentially undisputed — leads me to the question: Where is the outrage? I think the government has succeeded in so terrifying us at the prospect of another 9/11 that we are afraid to be outraged at the government when it claims to be protecting us, no matter what it does. C.S. Lewis once remarked that the greatest trick the devil has pulled off is convincing us that he does not exist. The government's greatest trick has been persuading us to surrender our freedoms. Will we ever get them back? The answer to that depends upon the fidelity to freedom of those in whose hands we have reposed the Constitution for safekeeping. At present, those hands are soiled with the filth of totalitarianism and preoccupied with the grasp of power. And they seem to be getting dirtier and their grip tighter every day. When Gen. Keith Alexander, the head of the NSA, was confronted with this litany of unlawful and unconstitutional behavior, he replied by claiming that his spies have saved the U.S. from 54 terrorist plots. He pleaded with lawmakers not to strip him of the power to spy or of the billions they have given him to spend on spying, lest another 9/11 plot befall us. Many Americans were willing to make this trade: spy on 330,000,000 Americans in order to stop 54 plots. But the government lacks the moral and constitutional power to compel this trade, because the right to privacy is a personal, individual and inalienable right, and so it cannot lawfully be taken away by majority vote (which never happened) or by secret fiat (which did happen). The government also lacks the authority to spy without legal constraint on anyone it wishes, because that violates the Constitution and fundamentally changes our open and free society. All-hearing ears and all-seeing eyes and unconstrained power exercised in secret are a toxic mix destined to destroy personal freedom. Now we know that Alexander has lied yet again to a congressional committee. He recently acknowledged that the number of plots foiled is not the stated-under-oath 54, but is either two or three. He won't say which two or three or how spying on every American was the only lawful or constitutional way to uncover these plots. He also won't say why he originally said 54, instead of two or three; but he did say last week that he will retire next spring. This is maddening. The government breaks the law it has been hired to enforce and violates the Constitution its agents have sworn to uphold; it gets caught and lies about it; and no one in government is punished or changes his behavior. Then we realize that the so-called court that authorized all of this is not a court at all. Federal judges may only exercise the judicial function when they are addressing cases or controversies; and their opinions only have the force of law when they emanate from that context. But when federal judges serve an essentially clerical function, they are not serving as judges, their opinions are self-serving and legally useless, and their apparent imprimatur upon spying gives it no moral or legal legitimacy. All of this — which is essentially undisputed — leads me to the question: Where is the outrage? I think the government has succeeded in so terrifying us at the prospect of another 9/11 that we are afraid to be outraged at the government when it claims to be protecting us, no matter what it does. C.S. Lewis once remarked that the greatest trick the devil has pulled off is convincing us that he does not exist. The government's greatest trick has been persuading us to surrender our freedoms. Will we ever get them back? The answer to that depends upon the fidelity to freedom of those in whose hands we have reposed the Constitution for safekeeping. At present, those hands are soiled with the filth of totalitarianism and preoccupied with the grasp of power. And they seem to be getting dirtier and their grip tighter every day.
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Post by philunderwood on Oct 31, 2013 8:46:14 GMT -5
Spying on the President By Judge Andrew P. Napolitano www.JewishWorldReview.com | When German Chancellor Angela Merkel celebrated the opening of the new U.S. embassy in Berlin in 2008, she could not have imagined that she was blessing the workplace for the largest and most effective gaggle of American spies anywhere outside of the U.S. It seems straight out of a grade-B movie, but it has been happening for the past eleven years: The NSA has been using Merkel to spy on the president of the United States. We now know that the NSA has been listening to and recording Merkel's cellphone calls since 2002. In 2008, when the new embassy opened, the NSA began using more sophisticated techniques that included not only listening, but also following her. Merkel uses her cellphone more frequently than her landline, and she uses it to communicate with her husband and family members, the leadership of her political party, and her colleagues and officials in the German government. She also uses her cellphone to speak with foreign leaders, among whom have been President George W. Bush and President Obama. Thus, the NSA — which Bush and Obama have unlawfully and unconstitutionally authorized to obtain and retain digital copies of all telephone conversations, texts and emails of everyone in the U.S., as well as those of hundreds of millions of persons in Europe and Latin America — has been listening to the telephone calls of both American presidents whenever they have spoken with the chancellor. One could understand the NSA's propensity to listen to the conversations of those foreign leaders who wish us ill. And one would expect that it would do so. But the urge to listen to the leadership of our allies serves no discernible intelligence-gathering purpose. Rather, it fuels distrust between our nations and in the case of Merkel exacerbates memories of the all-seeing and all-hearing Stasi, which was the East German version of the KGB that ruled that police state from the end of World War II until it collapsed in 1989. Merkel was raised in East Germany, and she has a personal revulsion at the concept of omnipresent state surveillance. Obama apparently has no such revulsion. One would think he's not happy that his own spies have been listening to him. One would expect that he would have known of this. Not from me, says Gen. Keith Alexander, the director of the NSA, who disputed claims in the media that he told Obama of the NSA spying network in Germany last summer. Either the president knew of this and has denied it, or he is invincibly ignorant of the forces he has unleashed on us and on himself. When Susan Rice, Obama's national security advisor, was confronted with all of this by her German counterpart, she first told him the White House would deny it. Then she called him to say that the White House could not deny it, but the president would deny that he personally knew of it. How did we get here? What are the consequences of a president spying on himself? What does this mean for the rest of us? Neither Bush nor Obama has had a strong fidelity to the Constitution. They share the views of another odd couple of presidents from opposing political parties, Teddy Roosevelt and Woodrow Wilson, in that the Constitution is not the supreme law of the land as it proclaims to be, but rather a guideline that unleashes the president to do all that it does not expressly forbid him to do. In the progressive era 100 years ago, that presidential attitude brought us the Federal Reserve, the federal income tax, Prohibition, World War I, prosecutions for speech critical of the government and the beginnings of official modern government racial segregation. That same attitude in our era has brought us the Patriot Act, which allows federal agents to write their own search warrants, government borrowing that knows no end — including the $2 trillion Bush borrowed for the war in Iraq, a country which is now less stable than before Bush invaded, and the $7 trillion Obama borrowed to redistribute — and an NSA that monitors all Americans all the time. In the case of the NSA spying, this came about by the secret orders of Bush and Obama, animated by that perverse TR/Wilsonian view of the Constitution and not by a congressional vote after a great national debate. Just as people change when they know they are being watched, the government changes when it knows no one can watch it. Just as we can never be ourselves when we fear that we may need to justify our most intimate thoughts to an all-knowing government, so, too, the government knows that when we cannot see what it is doing, it can do whatever it wants. And it is in the nature of government to expand, not shrink. Thomas Jefferson correctly predicted that 175 years ago. But spying on yourself is truly asinine and perhaps criminal. You see, the president can officially declassify any secrets he wants, but he cannot — without official declassification — simply reveal them to NSA agents. One can only imagine what NSA agents learned from listening to Bush and Obama as they spoke to Merkel and 34 other friendly foreign leaders, as yet unidentified publicly. Now we know how pervasive this NSA spying is: It not only reaches the Supreme Court, the Pentagon, the CIA, the local police and the cellphones and homes of all Americans; it reaches the Oval Office itself. Yet when the president denies that he knows of this, that denial leads to more questions. The president claims he can start secret foreign wars using the CIA, secretly kill Americans using drones, and now secretly spy on anyone anywhere using the NSA. Is the president an unwitting dupe to a secret rats' nest of uncontrolled government spies and killers? Or is he a megalomaniacal, totalitarian secret micromanager who lies regularly, consistently and systematically about the role of government in our lives? Which is worse?
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Post by philunderwood on Nov 7, 2013 9:28:29 GMT -5
End Runs Around the Constitution By Judge Andrew P. Napolitano www.JewishWorldReview.com | Two weeks ago we learned that the National Security Agency (NSA) has been spying on the chancellor of Germany and on the president of the United States. Last week we learned that it has spied on the Pope and on the conclave that elected him last March. This week we learned that it also has spied on the secretary general of the United Nations and has hacked into the computer servers at Google and Yahoo. What's going on? President Obama, who has yet to address these outrages to serious questioners, must know of them, because apparently he has gotten into the habit of wanting to know in advance what is on the minds of those with whom he is scheduled to meet. The New York Times reported recently that it learned from NSA whistleblower Edward Snowden that the NSA happily told Obama what U.N. Secretary-General Ban Ki-Moon was planning to ask him well in advance of when he asked it. The NSA could have learned that only from its surveillance of the secretary general's personal cellphone calls, emails and texts. It seems the NSA is providing this service to its clients, and chief among them is the president. Also among them are other parts of the government, such as the Department of Justice, the IRS, the FBI and the Department of Homeland Security. This is where we find even more dangers to personal freedom than the constitutional violations and personal privacy outrages visited on all Americans and on foreign officials. The NSA claims it can operate outside the restraints of the Fourth Amendment. The NSA and its congressional apologists have argued that because its task is essentially to gather foreign intelligence for national security purposes only, and because the Fourth Amendment, which requires detailed language in search warrants particularly describing the person or place to be searched and the person or thing to be seized, only restrains the government when it is engaged in criminal prosecutions and not when it is on a fishing expedition for intelligence purposes, the Fourth Amendment does not restrain the NSA. Yet, the plain language of the Fourth Amendment protects everyone in America from government intrusion in their persons, houses, papers and effects, whether the government is looking for evidence of crimes or of evidence of sophistry. The NSA's argument that the Fourth Amendment only regulates criminal prosecutions is nonsense. It never has seriously been made to or accepted by the Supreme Court, and it defies what we now know about the client list of the NSA. Its clients consist surely of the 15 or so other intelligence agencies in the federal government. But its clients are also the premiere federal agencies that decide whom to prosecute. In order to decide whom to prosecute, these agencies need to examine evidence. And if the evidence they are examining has come through extra-constitutional means, these agencies are destroying the fabric of liberty they have sworn to uphold, which includes the use of only lawfully and constitutionally gathered evidence. The NSA's own behavior defies its argument that so long as it is not involved in obtaining evidence for criminal prosecutions, it is free to use extra-constitutional means to gather data. The whole purpose of the Fourth Amendment is to prevent the government from going house to house without probable cause until it finds evidence of a crime — as British soldiers did to the colonists — and then using that evidence in criminal prosecutions. But if the NSA can go from computer to computer without probable cause until it finds what it wants — and turn some of that evidence over to law enforcement — the Constitution's protections effectively have been short-circuited. Why does the government, which has sworn an oath to uphold the Constitution, find ways to short-circuit it? The answer goes to the nature of government. Even in a free society, government always grows, always expands and always wants to control more human behavior. But government that operates in secrecy, where no one can see it and criticize it, will do whatever it can get away with — like spy on the Pope, share unconstitutionally acquired evidence with law enforcement or sate the president's curiosity. As if all of this were not bad enough, we learned just a few days ago that the NSA has hacked into the enormous computer servers of Google and Yahoo. These two companies, which have been coerced into and rewarded for their cooperation with the NSA, have now been betrayed by their spying partners in the government. They must have been gullible enough to believe that all NSA access to their hardware had been by consent or at least by court order and with their knowledge. It is almost inconceivable that any judge of the FISA court ordered hacking , as that is expressly prohibited by federal statute. Hacking is criminal no matter who orders it. Even some of the president's congressional supporters now acknowledge that the NSA is out of control and destroys more liberty than it protects. Why would the NSA do all of this? Because in secret it can cut constitutional corners with impunity. And it no doubt believes it is easier to tap into the telephones and computers of all 330 million of us who live in the United States in order to monitor the few dozen among us whom it really wants to watch than to develop probable cause against its true targets as the Framers intended and the Constitution expressly requires. And as well, who knows what teasing cute morsel its agents can deliver to the president before his next Oval Office visitor arrives? Is this the government the Framers gave us? Is this the government to which we consented? Is this the government most conducive to personal liberty in a free society? The answers are obvious.
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Post by philunderwood on Nov 14, 2013 10:59:59 GMT -5
Freedom and Federalism By Judge Andrew P. Napolitano www.JewishWorldReview.com | One of the bedrocks of our governmental infrastructure is federalism. This is the constitutional recognition of the legal origins of the United States as a union of independent states. America started, of course, with 13 colonies, which became 13 states, and gradually added 37 additional states. Though the federal government is a behemoth today, it was created when each of those states ceded some of their sovereignty to the federal government. They did this in writing. The writing is the Constitution, and it explicitly states that the governmental powers not ceded are retained by the states. President Reagan reminded us of the origins of the country in his first inaugural address when he stated, "All of us need to be reminded that the federal government did not create the states; the states created the federal government." He also said that the beauty of the retention of powers by the states is that they are likely to exercise those powers differently and become laboratories of democracy — hence, Reagan's famous quip that one of the benefits of living in the U.S. is federalism, because "you can vote with your feet." So, if you don't like the over-regulated Massachusetts, you can move to New Hampshire, and if you don't like the over-taxed New Jersey, you can move to Pennsylvania. This is easier said than done, but the principle subsists, and as long as we have not surrendered the freedom to travel, we can still move to more freedom-friendly states. This is not an academic theory; it has real-world consequences for my Fox News colleague Jana Winter. Jana is an investigative reporter for foxnews.com. Like all good folks on her end of journalism, Jana has developed sources. In the course of investigating the July 20, 2012, slaughter in a movie theater in Aurora, Colo., Jana learned from sources to whom she promised confidentiality that the alleged murderer, James Holmes, sent a notebook to his treating psychiatrist at the University of Colorado, a state-owned school. This information was earth-shattering for the Holmes case because it triggered the argument that a government psychiatrist ought to have known of Holmes' violent ideations a week before he allegedly carried them out in a movie theater. At the time Jana learned and reported about the Holmes notebook, all witnesses in the Holmes case were under a court order not to speak with anyone, least of all reporters. When Holmes' lawyers learned that Jana reported on the notebook, they subpoenaed her notes, and lawyers for Fox moved to quash the subpoena. Fox's lawyers argued that her sources were protected by a Colorado shield law. That law compels lawyers who are seeking the names of reporters' confidential sources to seek them elsewhere before approaching the reporter. That law also permits the incarceration of reporters who decline to obey any court order compelling the production of the names of their sources. Holmes' lawyers apparently want the names of Jana's sources because they believe them to be law enforcement personnel who violated the gag order. Criminal defense lawyers can have a field day on cross examination of cops when they have caught the cops breaking a law they have sworn to uphold. On the other hand, the press, which is the eyes and ears of individuals, a role it enjoys under the First Amendment as interpreted by numerous Supreme Court cases, would be fruitless if reporters could not promise confidentiality to sources. This goes back to the Pentagon Papers case in which the Supreme Court held that matters of material public interest in the hands of reporters — no matter how acquired — may "freely" be published. Freely means free from government retribution. Here is where federalism enters the picture. Jana lives and works in New York. She was ordered by a state judge in Colorado to reveal her sources and threatened with incarceration. New York law does not permit incarceration for failure to reveal sources. So, Fox's legal team filed an application in a New York state court to block the order of the Colorado state judge. That application was denied by a trial judge, and that denial was upheld by an appeals panel by a 3-to-2 vote, and earlier this week, the case was argued before New York's highest state court, the Court of Appeals. This should be a no-brainer. Jana voted with her feet and chose to live and work in the most First Amendment-friendly state in the union. She should be protected by New York law. If she is not, then all reporters will lose their confidential sources, and all Americans will be in the dark when whistleblowers know awful truths but are unwilling to pay the price of public revelation. In this era of the Internet, all information is available everywhere all the time. Just because the information in the Holmes case was about an event in Colorado does not mean that Colorado law should control the fate of a New York reporter. The controlling factor should be freedom: the freedom of sources to reveal truths, the freedom of reporters to publish truths, and the freedom of sources and reporters from government retribution. There is always a common theme in these reporter sources cases, and Jana's is no different. Invariably, the awful truth is about a failure of government — in this case a government psychiatrist. The government hates and fears the truth. Yet, if the government could control the flow of news, it would only tell us what makes it look good, and we would lack the knowledge with which to make prudent judgment about its policies. Thomas Jefferson once remarked that he'd prefer newspapers without government to government without newspapers. A proper application of federalism could save the values of the First Amendment and the freedom of Jana Winter. If not, we face the ancient spectacle of a courageous reporter being jailed not for committing a crime, but for telling a truth. And the confidential sources will dry up, and the whistleblowers will clam up, and the government will control more of our lives.
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Post by philunderwood on Nov 21, 2013 13:13:24 GMT -5
The Shutdown and the Rollout By Judge Andrew P. Napolitano www.JewishWorldReview.com | Here is a quick pop quiz. Which presented more harm to human life and personal freedom: the four-week partial shutdown of the federal government last month or the rollout of Obamacare this month? Obamacare is the greatest single expansion of federal regulatory authority in American history. In one stroke, it puts 16 percent of American economic activity — virtually all of health care and health insurance — under the thumb of federal bureaucrats. It dictates the minimum insurance coverage that everyone in the United States must have. It punishes severely, without a hearing, anyone who deviates below the prescribed minimum. It forces nearly all Americans to acquire coverage in a one-size-fits-all policy, including coverage for events that cannot occur. Obamacare was passed by both houses of Congress with support from Democrats only, using parliamentary tricks, rather than straight up or down votes. And all the Democrats voted for it after President Obama promised them and the American people ad nauseam that if they like their current doctor and if they like their current health insurance, they would be able to keep them under Obamacare. The law was found constitutional by the Supreme Court only after the chief justice — who acknowledged in his opinion in the case that Congress lacks the authority to compel people to engage in interstate commerce by forcing them to purchase a good they don't want — changed his mind on the ultimate outcome of the challenge. In order to save the law from imminent constitutional extinction, he created a novel legal theory, and he persuaded the four progressives on the court to join him. They ruled that the punishment for the failure to obtain the level of health care coverage that the law requires is actually a tax. Then the court ruled that because Congress can constitutionally tax any event, it can tax nonevents (like the failure to purchase health insurance), and so the entire scheme is constitutional because it is really just a tax law. The Supreme Court, lawyers sometimes say, is infallible because it is final; it is not final because it is infallible. I am a student of the court, and I revere it. It can change the laws of the land, but it can't change the laws of economics. And so, when Obamacare ordered all insurance carriers in the land to cease offering health care plans that provide insurance coverage below the federally mandated minimum, they naturally began to cancel those plans. And when the new health care exchanges that Obamacare established failed to find coverage for those formerly insured by the substandard plans, those who had these plans and liked them suddenly were told that on Jan. 1, 2014, when Obamacare becomes effective, they will have no health insurance. The old insurance coverage will be illegal, and there is no new coverage for them. Why were these substandard plans canceled when the president repeatedly promised that they could be kept? Didn't the president know that he was not being truthful when he signed a bill into law that mandated minimum coverage, yet promised that plans that failed to meet that minimum coverage could survive the law? How is it that emails from the West Wing to the White House and legal briefs filed by the Department of Justice defending Obamacare in various federal courts acknowledged that millions would lose the doctors and the coverage that they liked? One of the reasons many Americans had their policies canceled this month is the failure of those policies to conform to the new federal minimum requirements. At the heart and soul of Obamacare is the power of bureaucrats to tell everyone what coverage to have. At the core of Obamacare is the removal of individual choice from the decision to purchase health care coverage. The goal of Obamacare is high-end coverage for everyone — brought about by Soviet-style central planning, not in response to free market forces. From the perspective of the central planners who concocted Obamacare, minimum insurance coverage is the sine qua non of the statute. They want you to pay for coverage you will not need or ever use, so that the insurance carriers will have extra cash on hand to fund coverage for those who cannot afford high-end policies. This is where the laws of economics enter. By forcing all carriers to offer only high-end policies, the statute forced the carriers to raise their rates. By raising rates, the substandard policies — with their lower rates — could no longer be offered. If the government forced everyone to buy a Mercedes, when most are perfectly happy with an Acura, soon the Acuras would disappear from the market and most of us would be walking to work. Now back to our pop quiz. When Congress was unable to agree on a budget for this present fiscal year because tea party Republicans saw this mess coming and wanted to dull its sting and congressional Democrats refused to negotiate with them, the federal government partially shut down. The Democrats and the mainstream media went wild. They claimed the government would default on its obligations and millions would suffer without the conveniences normally offered by the federal government. Yet, the only inconvenience we really heard about was the inability of a few hundred folks to visit federal parks and monuments. All federal services — defense, the courts, the airports, the TSA (ugh), customs, and meat inspectors — continued to operate as before the shutdown. Yet, when Obamacare was rolled out earlier this month, more than 5,500,000 innocent Americans lost their health insurance, and the president knew of this in advance and lied about it repeatedly, and caused it with the one-size-fits-all mentality of his signature piece of legislation. Last week he caved and said that folks who have the old substandard policies could keep them for another year. This was too little and too late. He can no more change federal law than he can change the laws of economics. And he knows that. In modern times, we have endured great lies told in the White House. One great lie was about a third-rate burglary, and it ended in a presidential resignation. Another great lie was about a private sexual affair, and it ended in a presidential impeachment. The present great lies are about the health and freedom of 5,500,000 Americans. How will this mess end?
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Post by philunderwood on Nov 28, 2013 9:33:55 GMT -5
What if Thanksgiving Exposes the Government? By Judge Andrew P. Napolitano www.JewishWorldReview.com | What if another Thanksgiving Day is upon us and because of the government we have less to be thankful for than we did at the last one? What if at every Thanksgiving liberty is weakened and the government is strengthened? What if Thanksgiving's warm and breezy seduction of gratitude is just the government's way of inducing us to think we should be grateful for it? What if we don't owe the government any thanks for anything? What if the government owes us back all the freedom and property it has stolen from us? What if the government has produced nothing and owns nothing, save what it has coerced us to give it? What if the courts have ruled that the government can lie and cheat with impunity in order to acquire our property or assault our freedoms? What if the government lies and cheats regularly to enhance its own wealth and power? What if the government claims that its power comes from the consent of the governed? What if no one consented to the government's spying and lying except those who personally and directly benefit from it? What if the government is afraid to tell us all it is doing to us for fear we might vote it out of office? What if that vote would change nothing? What if the spying and lying continued no matter who ran the government? What if those who spy and lie don't lose their jobs no matter how they lie or upon whom they spy or who gets elected? What if this holiday of turkey and football and family is the modern-day version of bread and circuses? What if bread and circuses — which Roman emperors gave to the mobs to keep them sated — _are just the government's way today of keeping us _sated at the end of every November? What if the government expects us to give thanks to it for letting us have Thanksgiving Day and Black Friday off? What if the president thinks he's a king? What if he claims the power to kill people outside the Constitution? What if some of these people were your sisters or neighbors or friends? What if he thinks he's so smart that he knows what choices we should make? What if he makes those choices for us? What if we each have the natural right to choose how to care for our own bodies, but he has used the coercive powers of the law to tell us how to do so? What if that law compelled all persons to pay for more health insurance than they needed or wanted or could afford? What if the president deceived dupes in Congress into voting for that law? What if the president deceived millions of Americans into supporting that law? What if the president forced you to pay for a health insurance policy that funded killing babies in their mothers' wombs? What if the president knows what you want and need because his spies have captured your every telephone call, text and email? What if the Declaration of Independence says that our rights are personal, inalienable and come from G0D? What if the Constitution says that among our inalienable rights are the right to be left alone and the right to be different? What if the president took an oath to uphold the Declaration and the Constitution but believes in neither? What if he believes that our rights come from the collective consent of our neighbors, whom he can influence, or, worse yet, from the government, which he can control? What if he believes that he can invade our right to be left alone by spying on us and lying to us and destroy our right to be different by killing us? What if he actually did all these things? What if only individuals foolish enough to do so give up their own rights but cannot give up the rights of those of us who refuse to surrender them? What if the government can only constitutionally take away personal freedoms when a jury has convicted someone of a crime? What if the government thinks it can take our rights away by ordinary legislation or by presidential fiat? What if it has done so? What if someone who once worked for the government knew all this and risked life and limb to tell us about it? What if the government at first denied that it lies to and spies upon all Americans? What if it demonized the whistle blower? What if it chased him to the ends of the Earth because he revealed awful truths? What if everything Edward Snowden revealed about the government turned out to be true? What if it is the personal courage and constitutional fidelity of Edward Snowden for which we should be thankful? What if the government hates and fears our freedoms just as it hates and fears the revelation of the awful truths Snowden possesses? What if our thanks are due primarily to the Author of our freedoms, who made us in His image and likeness, and to those who have exercised those freedoms to seek and reveal the truth? What if it is the truth, and not the government, that will keep us free? What if we have the right to pursue happiness no matter what the government says? What if we have the right to be unique no matter what the government wants? What if the freedom to seek the truth will bring us happiness? What if that freedom which is still ours is a just cause for a happy Thanksgiving, after all?
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Post by philunderwood on Dec 5, 2013 15:22:07 GMT -5
The Pope and Basic Economics By Judge Andrew P. Napolitano www.JewishWorldReview.com | What is the worst problem in the world today? Might it be war, starvation, genocide, sectarian violence, murder, slaughter of babies in the womb? Any of these would be a rational answer. But when Pope Francis was asked this question recently, he replied, "Youth unemployment." To be sure, youth unemployment is a serious problem. In some parts of the United States, the richest country in the world, it has reached 25 percent. These are people who are no longer in school full time and are not yet 30 years of age. It is a problem for them and their families, for their communities, and for the welfare states that are supporting them. But is it the worst problem in the world? Is it a problem for the Roman Catholic Church? And is it something the Pope is competent to comment upon or to resolve? The Pope's youth unemployment comments recently were removed from the Vatican's website. No sooner had that been done than the Holy Father issued his first encyclical: a formal papal teaching, as opposed to his now famous impromptu back-of-the-plane yet on-the-record comments. His encyclical is about economics, and it reveals a disturbing ignorance. I say this with deference and respect. I also say this as a traditionalist Roman Catholic who laments the post-Vatican II watering down of sacred traditions, lessening of moral teaching and trivialization of liturgical practices. But I also say this as a firm believer that Pope Francis is the Vicar of Christ on Earth and, as such, personifies the teaching authority of the Church. He is morally and juridically capable of speaking ex cathedra — that is, infallibly — but only after surveying and distilling traditional Church teachings and only on matters affecting faith and morals. Thank God, so to speak, that his teaching authority is limited to faith and morals, because in matters of economics, he is wide of the mark. His encyclical, entitled "Joy of the Gospel," attacks free market capitalism because it takes too long for the poor to get rich. "They are still waiting," the Pope wrote. Well, without capitalism, which rewards hard work and sacrifice, they will wait forever. No economic system in history has alleviated more poverty, generated more opportunity and had more formerly poor people become rich than capitalism. And the essence of capitalism goes to the core of Catholic teaching: the personal freedom of every person. Capitalism is freedom to risk, freedom to work, freedom to save, freedom to retain the fruits of one's labors, freedom to own property and freedom to give to charity. The problem with modern capitalism — a problem that escaped the scrutiny of His Holiness — is not too much freedom, but too little. The regulation of free markets by governments, the control of the private means of production by government bureaucrats, and the unholy alliances between governments, banks and industry have raised production costs, stifled competition, established barriers to entry into markets, raised taxes, devalued savings and priced many poor out of the labor force. The Pope would do well to pray for those who have used government to steal freedom so as to satisfy their lust for power, and for those who have bowed to government so as to become rich from governmental benefits and not by the fruits of their own labors. Traditional Catholic social teaching imposes on all of us a moral obligation to become our brothers' keepers. But this is a personal moral obligation, enforced by conscience and Church teaching and the fires of Hell — not by the coercive powers of the government. Charity comes from the heart. It consists of freely giving away one's wealth. It is impossible to be charitable with someone else's money. That's theft, not charity. If you give until it hurts, freely and out of love, and seek nothing temporal in return, you have built up treasure in Heaven. But if the government takes from you and redistributes your wealth to those whom the government has decided to benefit — rich and poor alike — what merit is there in that for you? If you give a poor person a fish to eat, in a day, he'll be hungry. If you show him how to catch fish and teach him how to acquire the tools needed to do so, he can become self-sufficient and perhaps one day rich enough to help others. If the government takes money from you to buy the person a fish, half of the money will be wasted. The Pope seems to prefer common ownership of the means of production, which is Marxist, or private ownership and government control, which is fascist, or government ownership and government control, which is socialist. All of those failed systems lead to ashes, not wealth. Pope Francis must know this. He must also know that when Europe was in turmoil in 1931, his predecessor Pius XI wrote in one of his encyclicals: "(N)o one can be at the same time a sincere Catholic and a true Socialist." The Church does not teach just for today, but for the life of man on Earth. That's why the essence of the Papacy is not contemporary problem solving, but preservation of truth and continuity of tradition. For this reason, Popes do not lightly contradict their predecessors. If it was sacred then, it is sacred now. Timothy Cardinal Dolan, the Archbishop of New York, recently discovered serious structural problems with St. Patrick's Cathedral that will cost $200 million to repair. He will soon have that bill paid. Where did that money come from? It came from the disposable income of rich Catholic capitalists. Who will benefit from this? The blue-collar workers whom the restoration project is employing now have jobs, and everyone — rich and poor — who attends Mass at the refurbished St. Patrick's will do so in comfort and beauty. What shall we do about the Pope and economics? We should pray for his faith and understanding and for a return to orthodoxy. That means Holy Mother Church under the Vicar of Christ — saving souls, not pocketbooks.
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Post by philunderwood on Dec 12, 2013 9:47:35 GMT -5
A Conspiracy So Vast By Judge Andrew P. Napolitano www.JewishWorldReview.com | Readers of this column are well aware of the revelations during the past six months of spying by the National Security Agency (NSA). Edward Snowden, a former employee of an NSA vendor, risked his life and liberty to inform us of a governmental conspiracy to violate our right to privacy, a right guaranteed by the Fourth Amendment. The conspiracy he revealed is vast. It involves former President George W. Bush, President Obama and their aides, a dozen or so members of Congress, federal judges, executives and technicians at American computer servers and telecoms, and the thousands of NSA employees and vendors who have manipulated their fellow conspirators. The conspirators all agreed that it would be a crime for any of them to reveal the conspiracy. Snowden violated that agreement in order to uphold his higher oath to defend the Constitution. The object of the conspiracy is to emasculate all Americans and many foreigners of their right to privacy in order to predict our behavior and make it easier to find among us those who are planning harm. A conspiracy is an agreement among two or more persons to commit a crime. The crimes consist of capturing the emails, texts and phone calls of every American, tracing the movements of millions of Americans and foreigners via the GPS system in their cellphones, and seizing the bank records and utility bills of most Americans in direct contravention of the Constitution, and pretending to do so lawfully. The pretense is that somehow Congress lessened the standard for spying that is set forth in the Constitution. It is, of course, inconceivable that Congress can change the Constitution (only the states can), but the conspirators would have us believe that it has done so. The Constitution, which was written in the aftermath of the unhappy colonial experience with British soldiers who executed general warrants upon the colonists, forbids that practice today. That practice consists of judges authorizing government agents to search for whatever they want, wherever they wish to look. By requiring a warrant from a judge based on probable cause of criminal behavior on the part of the very person the government is investigating, however, and by requiring judges to describe particularly in the warrants they issue the places to be searched or the persons or things to be seized, the Constitution specifically outlaws general warrants. This is more than just a constitutional violation; it is a violation of the natural right to be left alone. When that right is violated, when all of our private movements are monitored by the government, the menu of our free choices is reduced, as we surely alter our private behavior to compensate for being watched. And just as surely, the government expands its surveillance, knowing that it is not being watched. As a result of these revelations, no one has been fired, except Snowden, and the conspiracy has grown. Earlier this week, The Washington Post reported that the Federal Bureau of Investigation is now spying on us. It seems that the FBI, no doubt jealous of the unpunished lawlessness of the NSA, has acquired software that permits it to utilize the tiny cameras in many home computers to observe whoever or whatever may be in front of the computer screen. The FBI doesn't only look at whoever is using the computer screen; it also captures the words and images on the screen. It seems to have an affinity for monitoring online gaming, even the lawful variety. In 1949, when George Orwell predicted in his terrifying novel "1984" the future use of television sets to watch us in our homes, many thought he was a delusional paranoid. It turns out that he was just off by a generation. His predictions have come to pass. Like many growing conspiracies, this one has spawned others. The Washington Post also reported this week that local cops, too, are jealous of the NSA and its ability to break the law with impunity. In an effort to catch bad guys, local police in half a dozen American cities have begun to ask local telecom providers for a "tower dump." A tower dump consists of digital recordings of all cellphone usage from a given cell tower. When some telecoms balked at these requests, the cops went to judges, some of whom unlawfully authorized these dumps and some of whom declined. Frustrated that the NSA seems to get whatever it wants, some local police have used their own technology to spy. They've purchased a $400,000 device that mimics cellphone towers, drawing cellphone signals to it and enabling the cops to capture telephone calls without the cooperation of telecoms or permission from federal judges. That's called hacking; it is a federal crime and in most areas a state crime, as well. The assaults on personal freedom never seem to end. The very concept of violating the rights of many in order to catch a few — a practice perfected by tyrannical regimes — has been prohibited for 222 years by the same Constitution that the perpetrators of these practices and the conspirators in these schemes have sworn to uphold. Sometimes, dissents in Supreme Court decisions articulate American values better than majority opinions do. Here is one from Justice Louis Brandeis that did: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men." If we permit the government to destroy that right, we will live under tyrannies similar to the ones we thought we defeated.
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Post by philunderwood on Dec 19, 2013 17:54:58 GMT -5
Almost Orwellian By Judge Andrew P. Napolitano www.JewishWorldReview.com | "Almost Orwellian" — that's the description a federal judge gave earlier this week to the massive spying by the National Security Agency (NSA) on virtually all 380 million cellphones in the United States. In the first meaningful and jurisdictionally grounded judicial review of the NSA cellphone spying program, U.S. District Court Judge Richard Leon, a George W. Bush appointee sitting in Washington, D.C., ruled that the scheme of asking a secret judge on a secret court for a general warrant to spy on all American cellphone users without providing evidence of probable cause of criminal behavior against any of them is unconstitutional because it directly violates the Fourth Amendment. Readers of this page are familiar with the purpose of that Amendment and the requirements it imposes on the government. The Framers intended it to prevent the new government in America from doing to Americans what the British government had done to the colonists under the king. The British government had used general warrants — which are not based on individualized probable cause and do not name the place to be searched or the person or thing to be seized — to authorize British soldiers to search the colonists wherever they pleased for whatever they wished to seize. The reason for the Fourth Amendment requirement of individualized probable cause and specificity in the warrant is to prevent the very type of general warrant that the NSA has claimed is lawful. The reason for preventing general warrants is that they have become an instrument of tyranny. It is against this well-known historical context that Leon engaged in his analysis of the feds who spy on us. This is truly the first jurisdictionally based judicial ruling on the cellphone aspect of the domestic spying that former NSA contractor Edward Snowden revealed last spring. Though the NSA and the Obama and Bush administrations have claimed that judges of the Foreign Intelligence Surveillance Court (FISC) not only found the NSA cellphone spying to be constitutional, but also authorized it, those judges were performing a statutory clerical function, not a constitutional jurisdictionally based judicial function. The Constitution requires a case or controversy — basically lawyers arguing against each other on behalf of clients whose interests are adverse — in order to invoke the jurisdiction of federal courts. The FISC judges, who sit and sign in secret, do not do so under the Constitution, because they have no case or controversy before them. They have only the NSA before them. Leon was the first federal judge to rule on the constitutionality of NSA spying under the Constitution — in the context of a litigant challenging the government and the government defending itself. And he found that spying to be in violation of the Constitution. In his ruling, he dispatched with clarity the government's argument that two Supreme Court cases from the late 1970s and early 1980s, in which the court permitted evidence obtained from telephone billing data without a search warrant to be introduced in criminal cases, support the constitutionality of the NSA's phone metadata collection. That was before the era of cellphones, and that was before the Supreme Court ruled that a search warrant is required to hunt electronically for marijuana plants in a home and to install and follow a GPS in a car. By ruling that two now-outdated Supreme Court cases are no longer controlling, he almost guaranteed that the high court will take this case. The NSA was emasculated before Leon. Gone were the lies of Director of National Intelligence James Clapper, who stated under oath that the government does not spy on Americans. Gone was the bravado of NSA boss Gen. Keith Alexander, who claimed initially under oath that his spies stopped 52 terrorist plots and then mysteriously corrected himself and said they really stopped just three, but declined to identify the three. Gone was the if-we-don't-do-this-we-all-will-die argument. Gone was the if-you-have-nothing-to-hide-you-have-nothing-to-fear nonsense that congressional NSA apologists have advanced. In place of the political claptrap is the court's finding that not only is the NSA spying unconstitutional, but it doesn't work. After hearing the NSA state its case, Leon wrote, "I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism." And he added an admonition that it doesn't help the NSA's case to be less than candid with the judge. This was not a difficult case for the court. The government's behavior was utterly indefensible. It was profoundly dismissive of the Constitution that federal employees have sworn to uphold. Leon wrote: "I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast." Even though Madison would be aghast, surely the Obama administration will appeal this, and just as surely, appellate judges or Supreme Court justices will have the final say. But for now, we have the great satisfaction of knowing that an independent judiciary has saved our liberties from the tyranny of the majority. And this is a cause for great joy.
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Post by philunderwood on Jan 9, 2014 11:09:57 GMT -5
Spying on Congress By Judge Andrew P. Napolitano www.JewishWorldReview.com | Happy New Year. Just when you thought the NSA spying scandal couldn't get any worse, it has. Last week, Sen. Bernie Sanders, I-Vt., wrote to Gen. Keith Alexander, director of the National Security Administration (NSA), and asked plainly whether the NSA has been or is now spying on members of Congress or other public officials. The senator's letter was no doubt prompted by the revelations of Edward Snowden to the effect that the federal government's lust for personal private data about all Americans and many foreigners knows no bounds, and its respect for the constitutionally protected and statutorily enforced right to privacy is nonexistent. The senator's benign and neutral letter came on the heels of a suggestion by his colleague Sen. Rand Paul, R-Ky., to the effect that Alexander's boss, Gen. James Clapper, director of national intelligence, perjured himself before a Senate subcommittee when he testified that the NSA is not gathering massive amounts of data from tens or hundreds of millions of Americans. Alexander himself is also on the hook for having testified in a highly misleading manner to a House committee when he was asked whether the NSA has the ability to read emails and listen to phone calls and he stated: "No, we don't have that authority." Thus far, Paul is the only member of Congress possessed of the personal courage to call out Clapper by arguing that working for the government is no defense to lying under oath. The gravity of Paul's charges was enhanced by revelations subsequent to the Clapper testimony to the effect that Clapper was told in advance of his testimony what questions would be put to him and then declined an offer afterward to correct any misstatements. In a new low for members of Congress, the NSA's own advocate in the House, Long Island's Rep. Peter King, R-N.Y., attacked Paul for attacking Clapper for lying under oath. The King argument is: Anything goes when it comes to national security — even lying under oath, even violating everyone's constitutional rights, even destroying the freedom you have sworn to protect. All of this is background to the timing of Sanders' letter. That Clapper perjured himself before, and Alexander misled, Congress is nothing new. And the punishments for lying to Congress and for misleading Congress are identical: five years per lie or per misleading statement. Hence, the silence from the NSA to Sanders. Well, it wasn't exactly silence, but rather a refusal to answer a simple question. The NSA did reply to Sanders by stating — in an absurd oxymoron — that members of Congress receive the same constitutional protections as other Americans: that is to say, none from the NSA. The NSA's refusal to answer Sanders' question directly is a tacit admission, because we are all well aware that the NSA collects identifying data on and the content of virtually every email, text message and phone call sent or received in the U.S. In fact, just last week, the secret FISA court renewed the order authorizing massive records collection for the 36th time. If members of Congress are treated no differently than the American public, then the NSA is keeping tabs on every email, text and phone call members of Congress send and receive, too. That raises a host of constitutional questions. Under the Constitution, Congress and the executive branch are equals. The president — for whom the NSA works — can no more legally spy on members of Congress without a search warrant about the members to be spied upon than Congress can legally spy on the president. Surely the president, a former lecturer in constitutional law at the University of Chicago Law School, knows this. There was a time when the NSA's failure to answer such a straightforward question as Sanders has asked would have led to hearings and bipartisan investigations. However, Democrats are largely silent, choosing party and personality over principle, and Republicans know all of this started under President George W. Bush and are afraid to open a can of worms — except for King, who apparently likes to be spied upon. Under laws that have been held to be both unconstitutional and constitutional by two different courts, the NSA can obtain surveillance orders with no articulated suspicion about those to be spied upon, even though the Fourth Amendment requires probable cause, a high level of individualized suspicion. Basically, the NSA can tell a FISA judge that two thugs in area code 212 are chatting with five jerks in area code 312, and they are all texting six malcontents in area code 310. It knows who they are and where they are, but instead of going to New York and Chicago and Los Angeles and following them and investigating them, instead of asking for a search warrant to spy on just them, the NSA wants a warrant to spy on everyone in those area codes. It is a lot easier for our spies to throw a few switches at a telecom office than to burn shoe leather. If authorities in New Jersey had asked this of me when I was on the bench there, I'd have thrown them out of my courtroom because the Constitution expressly forbids this. Just as disturbing as the revelation that the NSA is spying on members of Congress is the fear of what the NSA does with the information it collects. In September, The Guardian newspaper reported that the NSA shares raw, unfiltered information it has gathered with some foreign nations, including England and Israel. It also reported that the NSA shares this raw data with its boss: President Obama. Hence, Sanders' letter. The lawlessness continues. The president's NSA spies remain out of control. They are spying on Congress and the courts; the military and the press; the CIA and other spies; friends, foes and the Pope. If we fail to stop this soon, the next generation of Americans will not even know what privacy is.
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Post by philunderwood on Jan 16, 2014 10:27:16 GMT -5
Tyranny masquerading as liberty from a clueless 'constitutional expert' By Judge Andrew P. Napolitano www.JewishWorldReview.com | When the Framers were putting together the Constitution in Philadelphia in the summer of 1787, they knew the states would not adopt it without written guarantees that the new central government would respect natural rights. The supporters of the Constitution promised political leaders in the states that the written guarantees would soon be added as amendments, and they were. By late 1791, the Bill of Rights was ratified and added to the new Constitution. The purpose of the Bill of Rights was to assure all in America that their natural rights — areas of human choices for which a permission slip from the government cannot be required and in which the government cannot coerce compliance with its wishes — would not be impaired by the federal government. Since the ratification of the Fourteenth Amendment, the natural rights protected in the Bill of Rights generally have been insulated from interference by the states, as well. All natural rights are of paramount importance to all persons. They are individualized personal gifts from the Creator and have been recognized as such in American law since Thomas Jefferson wrote in the Declaration of Independence that we are endowed with them by Him. One of those rights guarantees the free exercise of religion. Indeed, the Free Exercise Clause in the First Amendment was written to ensure that the new government could not coerce persons to behave differently than their religious views informed their consciences or punish them for not conforming to a government-mandated religious orthodoxy. Generally, for almost 230 years, the federal government left us alone to choose freely our religious practices and to worship as we believe. Until now. Today, the free exercise of religion is under attack by the government. When Congress enacted the Affordable Health Care Act — I prefer to call it Obamacare because it is President Obama's brainchild, his signature legislation, and because there is nothing affordable about it — members of Congress must have known that the law would impose obligations upon persons that would force them to engage in behavior in violation of their religious beliefs. Obamacare, which has been upheld by the Supreme Court under a superficial and novel theory that permits the feds to regulate natural rights by taxing us when we do not do as they have commanded, requires all employers of 50 or more persons to obtain health insurance coverage for all of their employees that pays for birth control via contraception, sterilization and abortion. The Little Sisters of the Poor are an order of Roman Catholic nuns who have taken vows of poverty, chastity and obedience. They operate nursing homes for those who cannot afford them and employ more than 50 persons. The sisters have objected to the requirement that they must pay for health insurance coverage that provides for birth control, as those payments directly violate Catholic teachings and beliefs. In a pluralistic society, one would expect that the government would accommodate the sisters. In a free society in which everyone who works for the government takes an oath to uphold the Constitution, the feds have a legal obligation to accommodate them. In a political society in which many Catholics are Democrats who elected the Congress that gave us Obamacare, one would expect an accommodation. But we expect in vain, as the federal government has resisted the sisters mightily and asked the courts to turn down their pleas. What is wrong with Obama that he would employ lawyers to do this? For starters, he does not believe in natural rights. He accepts the perverse view — known as positivism — that our rights come not from God, but from the government. This is not an academic argument, as, in the president's world, if the government is the source of freedom, then the government can restrict it. This is, of course, the opposite view from that of Judeo-Christian values, the Framers, the Constitution and American law; thus it violates the oath of office the president took. But just as troubling as his attitude about the origin of personal freedoms is the president's attitude about the exercise of personal freedoms. Throughout his presidency, he has taken the position that he, and he alone, possesses the power to dispense with the obligations of federal laws when they are too burdensome and even to ignore them. He has bombed other countries without congressional approval, spied on all Americans without lawful warrants specifying any of them, enforced environmental regulations that Congress declined to enact, and declined to enforce or delayed the onset of sections of Obamacare that offend his friends. He has done this for political reasons when his colleagues and supporters have asked it of him. So, what about the nuns? Nuns who own no personal property, nuns who spend their lives ministering to the poor, nuns who will never have the need for contraceptive or sterilization or abortion services, nuns not involved in politics but deeply committed to well-formed consciences? Can he give them a break, too? In a word: No. His Department of (political) Justice has vigorously resisted the nuns and even mocked them. It has demanded that they assert in writing what their religious beliefs are and that they permit others to pay for the contraceptive, sterilization and abortion services they do not want, cannot use and profoundly condemn. Our post-Obamacare world is dangerous for people informed by conscience and presupposing respect for natural rights. Where are the Catholic Democrats in Congress who voted for this monstrosity? Why are they silent or tacitly with the president? Where are all good people of conscience in this great clash between the nuns faithful to God and the president to politics? If the government can tax you and me and selfless nuns for fidelity to long held religious beliefs while exempting others because of their fleeting political beliefs, then the Free Exercise Clause of the First Amendment is meaningless. And our rights are in the hands of a congressionally enabled tyrant.
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Post by philunderwood on Jan 23, 2014 9:16:25 GMT -5
Presidential Placebo By Judge Andrew P. Napolitano www.JewishWorldReview.com | When President Obama chose a Friday before a three-day holiday weekend to address a matter as profound as the NSA spying scandal, I suspected he would raise issues that he hoped the media would ignore. That's because the Reagan White House did a study in the early 1980s and concluded that Fridays are low-value news days and thus a good time to bury the lead, so to speak. Every president since then has followed that lead. Instead of addressing the massive violations of the natural and constitutionally protected right to privacy, instead of acknowledging that but for the personal courage of Edward Snowden his administration would still be pulling the wool over our eyes, instead of reestablishing the serious constitutional and civil liberties bona fides he established for himself as a U.S. senator, the president defended his massive spying as a necessary tool in the fight to maintain national security and offered only a placebo to its critics. Just how massive is this scandal? The Washington Post has reported that the NSA hacks into 500,000 American buddy lists and 600,000 American address books every day, and the Guardian of London reported last week that the NSA seizes 200,000,000 American text messages every day. This is in addition to seizing the content of all cellphone- and landline-generated telephone conversations and copies of all emails sent or received in the United States. And all of that is in addition to seizing all bank records, utility bills and credit card bills of everyone in the United States. By not addressing or refuting any of this, the president obviously plans to continue it. He also plans to reject the most basic principles of American government. If the government derives its powers from the consent of the governed, as the Declaration of Independence declares it does, and if the governed lack the lawful authority to hack and seize our neighbors' texts and phone calls and utility bills, how could we have given that authority to the government? In the president's world, that's an easy question to answer: Do it in secret. Enact legislation that lets a dozen NSA-sycophantic members of Congress speak for the legislative branch, tell only that dozen about the spying in secret and swear them to secrecy. Enact legislation that lets a dozen secret judges issue search warrants based on the government's wishes rather than probable cause, and seek permission from any one of those judges in secret and swear them to secrecy. And then in public deny and lie and change the subject. In a thinly disguised effort to change the subject, Obama's Friday speech focused on where the seized data is stored, rather than on whether the government in a free society is empowered to collect it. He proposed that the data seized by the NSA be stored at non-government locations that he did not identify and kept there and be made available to the NSA after approval by the secret Foreign Intelligence Surveillance Act (FISA) court. Even if a third party capable and willing to store this data could be found, the additional step to the FISA court is no additional constitutional protection whatsoever. Every federal and state court in the United States follows the constitutional requirement that whenever any government is seeking a search warrant to conduct surveillance, the government must present particularized evidence identifying its target, and the evidence must constitute probable cause of criminal behavior on the part of that target; every court, that is, except the FISA court. That court issues general warrants that do not name a target and are based on the NSA's wishes, rather than evidence of probable cause. So, that silent exhale of relief from the NSA last week was generated by the realization that this third-party storage proposal will not restrict the massive spying one iota. Added to this placebo is the president's proposal to employ a Defender of the Constitution (what a great job title!) to appear before the FISA court, along with lawyers for the NSA, and argue against the NSA's wishes. This is another diversion that would add another level of unconstitutional and irrelevant complexity to the present scheme. In the present scheme, the persons on the FISA court may be federal judges, but they are performing clerical functions, not judicial functions. That's because, unlike state courts, which are courts of general jurisdiction, the jurisdiction of all federal courts can only be invoked when there are real cases and controversies brought to them. If the Defender of the Constitution appeared in front of the FISA court, he or she could only do so by representing a real client in a real dispute with the federal government. But the NSA does not identify its targets, much less deal with their lawyers. The president's proposal would turn this non-court court into a law school moot court exercise. His third proposal adds insult to injury. He offers to stop the NSA from doing to foreign leaders what it has been doing to Americans. No doubt, that is to enable him to save face with his selfie-snapping European colleagues. But it hardly smacks of understanding the problem of massive spying. It may be an insult to spy on his fellow heads of state, and it may affect diplomacy with them, but stopping it hardly enhances the natural right to privacy of the rest of us. This mass spying is uniquely and profoundly un-American and will continue to undermine our freedoms. I am not arguing here that all spying is illegal — just that spying on all of us is illegal. Why bother with the formality of warrants when they permit all spying all the time? Spying on anyone not named in a warrant, or employing a warrant not based on probable cause, is the hallmark of those totalitarian regimes against which we have fought our just wars and our cold wars. Yet today, the government in America seems more like the former enemies we vanquished than the place of life, liberty and the pursuit of happiness the Framers established.
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Post by philunderwood on Feb 13, 2014 10:57:36 GMT -5
A New Assault on Freedom of the Press By Judge Andrew P. Napolitano www.JewishWorldReview.com | Last week, a little noticed clash took place on Capitol Hill involving the fundamental values underlying the First Amendment. The issue was the lawfulness of publishing the secrets that were given to reporters by former National Security Agency (NSA) contractor Edward Snowden. The disputants were Cong. Mike Rogers, R-Mich., and FBI Director James Comey. Rogers is the chief congressional apologist for the massive NSA spying apparatus. He is the current chair of the House Permanent Select Committee on Intelligence, and in that capacity, he is one of the dozen members of Congress from both houses who were privy to much of the NSA spying before the Snowden revelations. In our perverse post-9/11 world, federal law actually permits this Gang of 12 to substitute for all 535 members of Congress with respect to knowledge of intelligence secrets. Since 9/11, the Bush and Obama administrations have succeeded in claiming they have congressional consent for the massive NSA spying by merely getting a consensus from the Gang of 12. There is, of course, no provision in the Constitution for the substitution of all 535 members of Congress with a select group of 12 of them, but Congress and Presidents Bush and Obama have gone along with this. The kicker is that all members of the Gang of 12 have been sworn to secrecy and threatened with prosecution if they reveal to anyone, including other members of Congress, what the NSA and other intelligence agencies reveal to them. What kind of representative democracy is that? Rogers is one of the chief architects and cheerleaders of this post-9/11 unconstitutional version of representative democracy. This is the same system that sends the NSA to judges of the Foreign Intelligence Surveillance Court for search warrants that purport to authorize the NSA to capture the content of every text message, email, telephone call, bank statement, credit card bill and utility bill of everyone in America. This apparatus, too, involves another Gang of 12: the 12 federal judges on the FISA court. They suffer from the same secrecy kicker as Rogers' gang does: They, too, are sworn to secrecy and have been implicitly threatened with prosecution if they violate their oaths. These judges issue search warrants based on the NSA's unchallenged wishes, not based on the constitutional requirement of particularly identifying for the court the target of the search and then presenting evidence to the court that constitutes probable cause of criminal behavior on the part of the target. This, too, is unconstitutional, as it is the product of a congressional alteration of the Constitution. As most schoolchildren know, Congress cannot alter or amend the Constitution; only the states can. Yet, by instructing FISA judges to issue search warrants that do not meet the constitutional identity of target and probable cause standards, Congress has substantially altered the Constitution, and the judicial Gang of 12 has gone along with this. As one of the architects of all this domestic spying, and as one of the believers that the public should be kept in the dark about it, Rogers has not been happy with the Snowden revelations. Snowden subscribed to the same oath of secrecy as the two Gangs of 12, but he also swore — as have both Gangs of 12 — to uphold the Constitution. To Snowden, the people have a fundamental right to know that their government has cooked up the most massive secret violation of civil liberties in the nation's history, and his oath to uphold the Constitution compelled his revelations. To Rogers, Snowden must be a traitor or a spy. Even the Obama administration has not bought that argument, as it only charged Snowden with the delivery of classified materials to unauthorized persons. It did not charge him with treason (waging war on the United States or giving aid and comfort to enemies of the United States) or spying (giving classified secrets to enemies of the United States). Frustrated that Snowden is apparently living freely in Moscow, Rogers summoned the FBI director before his House committee to float a truly novel and pernicious theory of First Amendment law. At that hearing last week, he attempted to persuade Comey to accept his idea that publishing classified secrets is a crime if the publisher was paid for his work. So, if the owners of and reporters at The Guardian of London or The New York Times or The Washington Post, who publicly revealed the secrets Snowden gave them, were paid for their work, the Rogers argument goes, they, too, could be prosecuted for espionage. Rogers is not a lawyer, but he is an ex-FBI agent. He should know the law, but it was necessary for Comey to tutor him. The law is clear and was stated by the Supreme Court in the Pentagon Papers case, and Comey publicly reminded Rogers of this: If classified materials are of interest to the public, their publication is protected. Stated differently, it matters not how the journalist acquires the classified materials or whether the journalist and his bosses are paid for his work. If the classified materials are newsworthy, they can be published, and no one can be sued or prosecuted for doing so. In the clash between government secrecy and public transparency, the Framers placed a value judgment in the First Amendment. Since the press is the eyes and ears of the public, and since the public needs to know what the government is doing so it can make informed decisions when electing people to the government, publishers and reporters are immune from criminal prosecution and civil liability for lifting the veil on the governments' secrets. An informed public is more likely to make better decisions than an ignorant one. I am happy that Comey did not fall for Rogers' ignorant argument, and I am happy, too, that the argument will fall on deaf ears. In a free society, knowledge is superior to ignorance. Politicians who would criminalize publishing the truth should be voted out of office.
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Post by philunderwood on Feb 20, 2014 13:48:56 GMT -5
An Unconscionable Silence By Judge Andrew P. Napolitano www.JewishWorldReview.com | The political philosopher Edmund Burke once remarked that all that is necessary for the triumph of evil is for good folks to do nothing. A glaring example of the impending triumph of a constitutional evil that could be stopped by folks who have been largely silent is the tyranny coming from the White House. And the folks who can stop this and are doing nothing about it are our elected representatives in Congress. The Constitution is the supreme law of the land. It established the three branches of government, and it delegated "all legislative powers" to Congress. American law rarely uses the word "all." Yet the Framers chose that word precisely to confine law writing to Congress and to prevent a president from altering federal law by the selective manner of his enforcement of it and thereby effectively rewriting it. The same Framers sought to guard against the same evils by compelling the president to swear at the commencement of his terms in office that he will "faithfully" enforce the laws. The use of the word "faithfully," like the use of the word "all," is intended to assure voters that they can count on a president who will do the job they hired him to do by enforcing federal laws, not evading them, and by enforcing them as Congress has written them, not as the president might wish them to be. To be fair, many presidents, from the sainted Thomas Jefferson to the tyrannical FDR, put their own spin on federal law. Jefferson pardoned all those convicted under the Alien and Sedition Acts because he hated a statute that punished free speech and he boasted that he would not enforce that part of the acts (they expired under his watch). And FDR when barely two weeks in office issued an executive order criminalizing the possession of gold because he foolishly thought it would stabilize the banks, until an adviser reminded him that only Congress can write criminal laws (which he then persuaded Congress to do). Yet in President Obama we have a president whose personal interferences in the enforcement of federal laws reveal his view that he can rewrite them and even nullify them. Presidential law writing violates the presidential oath of office, steals power from Congress, disrespects an equal branch of the government and, when unchecked, accumulates such power in the executive branch that it effectively transforms the president into a menacing tyrant who rejects his constitutional obligations and limitations. Obama bombed Libya without a declaration of war from Congress. This arguably brought down the Gadhafi government, which led to the current state of lawlessness there, which produced the environment in which our ambassador was murdered in Benghazi in 2012 and established a dangerous precedent because Congress remained officially silent. He has told the 11 million illegal immigrants who are here and subject to deportation that if they comply with a new set of rules they will not be deported. The constitutional problem is that the president wrote those rules. Only Congress can craft such rules, and by the president's doing so, he has schooled immigrants in how to avoid compliance with federal law. The president has used drones to kill Americans, but claims he has done so lawfully because he complied with secret rules that he crafted. Under the Constitution, if the president wants someone dead, he must afford the person due process or ask Congress to declare war on the country housing the person. No worries, he says — he has followed the secret rules that he wrote to govern himself when deciding whom to kill. The president's agents now acknowledge that they spy on all of us all the time, including members of the judiciary and Congress. This, too, was done pursuant to a secret presidential directive, secretly approved by judges acting as clerks and not under the Constitution, and by a dozen members of Congress sworn to secrecy. No law authorized this, and the president won't discuss it meaningfully, except to condemn its revelation. And in a series of salvos that hit home, the president has modified the Affordable Care Act (Obamacare) 29 times, by changing its various dates of effectiveness for some but not for others, by changing the meanings of terms for some but not for others, and even by diluting the signature obligation we all have to obtain the platinum insurance policies it commands for some and not for others. He has done all of this on his own, with no input from Congress. He has even threatened to veto any congressional effort to enact into law the very changes he alone has made. His latest assault on the Constitution consists of a plan by the Department of Homeland Security, revealed earlier this week, effectively to follow us as we drive on public roads by photographing the license plate of all motor vehicles. This, too, was formulated without congressional approval or constitutional authority. And while all of this is going on, Congress largely sits as a potted plant. In the Senate, Sens. Rand Paul, Ted Cruz and Mike Lee have complained long and loud, but Senate Majority Leader Harry Reid will not permit legislation to address presidential lawlessness to reach the Senate floor. A few dozen Republicans in the House have complained, but Speaker John Boehner will not permit the House to address corrective legislation. Institutionally and officially, Congress is sleeping. Can you imagine how a Democratic Congress would have reacted if Ronald Reagan had instructed the IRS to cease collecting capital gains taxes so as to spur economic activity; or how a Republican Congress would have reacted if Bill Clinton had instructed the IRS to add a 1-percent rate increase to the tax bills of billionaires so as to close a budget gap? These are dangerous times because this is a lawless presidency and a pliant Congress. The president's willingness to violate the Constitution publicly calls into question his fitness for office. And that deafening silence from Capitol Hill manifests a spineless refusal to preserve constitutional government. The whole purpose of dividing and separating governmental powers is the preservation of personal liberty by preventing the accumulation of too much power in one branch or, heaven forbid, in one person. Whoever permits this to take place lacks fidelity to the Constitution, is unworthy of holding governmental power in a free society and should be removed from office.
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Post by philunderwood on Feb 27, 2014 8:31:19 GMT -5
New Assaults on American Law By Judge Andrew P. Napolitano www.JewishWorldReview.com | In the months since Edward Snowden revealed the nature and extent of the spying that the National Security Agency (NSA) has been perpetrating upon Americans and foreigners, some of the NSA's most troublesome behavior has not been a part of the public debate. This behavior constitutes the government's assaults on the American legal system. Those assaults have been conducted thus far on two fronts, one of which is aimed at lawyers who represent foreign entities here in America, and the other is aimed at lawyers who represent criminal defendants against whom evidence has been obtained unlawfully and presented in court untruthfully. Investigative reporters at The New York Times recently discovered that the NSA has been listening to the telephone conversations between lawyers at a highly regarded Chicago law firm and their clients in Indonesia. The firm, Mayer Brown, has remained publicly silent about the revelations, as has its client, the government of Indonesia. But it is well known that Mayer Brown represents the government of Indonesia concerning trade regulations that govern exports of cigarettes and shrimp to the U.S. The lawyers on the other side of the bargaining table from Mayer Brown work for the federal government, which also employs, of course, the NSA. Can the NSA lawfully tell lawyers for the government who are negotiating with Mayer Brown lawyers what it overheard between the Mayer Brown lawyers and their client? The answer, incredibly, is: Yes. Federal rules prohibit the NSA from sharing knowledge with lawyers for the federal government only about persons who have been indicted. In this case, Mayer Brown is attempting to negotiate favorable trade relations between Indonesia and the U.S., and the lawyers for the U.S. have the unfair advantage of knowing in advance the needs, negotiating positions and strategy of their adversaries. In the Obama years, this is how the feds work: secretly, unfairly and in utter derogation of the attorney-client privilege. For 100 years, that privilege — the right of lawyers and their clients to speak freely and without the knowledge of the government or their adversaries — has been respected in the U.S., until now. Now, we have a lawyer who, as president, uses the NSA to give him advance warning of what his office visitors are about to ask him. And now we have lawyers for the federal government who work for the president and can know of their adversaries' most intimate client communications. This is profoundly unfair, as it gives one side a microscope on the plans of the other. It is unwise, too, as clients will be reluctant to open up to counsel when they know that the NSA could spill the beans to the other side. In the adversarial context, for the system to work fairly and effectively, it is vital that clients be free to speak with their lawyers without the slightest fear of government intrusion, particularly when the government is on the other side of the deal or the case. If you have spoken to a lawyer recently and if that lawyer is dealing with the federal government on your behalf, you can thank the constitutional scholar in the Oval Office for destroying the formerly privileged nature of your conversations. But that is not the only legal protection that President Obama has destroyed. In 2012, the U.S. Supreme Court heard oral argument in a case in which journalists in the pre-Snowden era challenged the government's spying on them. The government won the case largely because it persuaded the court that the journalists did not have standing to bring the lawsuit because, the court ruled, their fears of being spied upon were only hypothetical: They suspected that their communications with their sources were being monitored, but they couldn't prove it. In this post-Snowden era, we now know that the journalists in that case were being spied upon. Nevertheless, during the oral argument in that case, government lawyers told the high court that should government prosecutors acquire from the NSA evidence of criminal behavior against anyone whom they eventually would prosecute and should they wish to use that evidence in the prosecution, the Justice Department would inform defense counsel of the true source of the evidence so that the defendant would have the ability to challenge the evidence. Yet, last week, in a case in federal court in Oregon, the same Justice Department that told the highest court in the land last year that it would dutifully and truthfully reveal its sources of evidence — as case law requires and even when the source is an NSA wiretap — told a federal district court judge that it had no need or intention of doing so. If this practice of using NSA wiretaps as the original source of evidence in criminal cases and keeping that information from the defendants against whom it is used is permitted, we will have yet another loss of liberty. Federal law requires that criminal prosecutions be commenced after articulable suspicion about the crime and the defendant. Prosecutions cannot be commenced by roving through intelligence data obtained through extra-constitutional means. That is the moral equivalent of throwing a dart at a dart board that contains the names of potential defendants and prosecuting the person whose name the dart hits. For the past 75 years, federal prosecutors have not been permitted to use unlawfully obtained evidence in criminal cases, and they have been required to state truthfully the sources of their evidence so that its lawfulness can be tested. This rule generally has served to keep law enforcement from breaking the laws it has sworn to uphold by denying to its agents the fruits of their own unlawful activity. Liberty is rarely lost overnight. It is lost slowly and in the name of safety. In the name of keeping us safe, the feds have spied on the lawyers who negotiate with them, lied to the lawyers whose clients they are prosecuting and misrepresented their behavior to the Supreme Court. As far as the public record reveals, they have not corrected that misrepresentation. They have done all of this in utter defiance of well-settled law and procedures and constitutional safeguards. What will they do next?
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Post by philunderwood on Mar 6, 2014 10:41:51 GMT -5
Monster Putin By Judge Andrew P. Napolitano www.JewishWorldReview.com | What happens when the United States government participates meaningfully in toppling foreign governments in the name of spreading democracy? That behavior usually results in unintended consequences and often produces disasters. When the United States invaded Iraq in 2003, initially to search for weapons of mass destruction that we now know the Bush administration knew did not exist there, and eventually for regime change, the U.S. succeeded in changing profoundly the Iraqi government. But in the process, we lost 4,500 American troops, suffered 45,000 substantial injuries, borrowed and spent and have not paid back more than $2 trillion, caused the deaths of 650,000 Iraqis, displaced 2.5 million Iraqis, and unleashed into Iraq our public enemy, al-Qaida. Al-Qaida was not in Iraq before we invaded. Today, it controls one-third of that now unstable country. In 2010, President Obama decided he no longer liked America's favorite Middle Eastern dictator, President Hosni Mubarak of Egypt, even though he and his four immediate predecessors gave the Mubarak government about $4 billion annually. So our agents fomented revolution in the streets while Obama suggested openly that it was time for Mubarak to leave office. Then the hoped-for and promised free elections took place, and avowed enemy of the West and Islamic fanatic Mohammed Morsi became the first popularly elected president in Egyptian history. Then the U.S. decided it did not want him in power no matter the lawfulness and moral legitimacy of his election, and so the Obama administration encouraged a military coup. Morsi was arrested by his own military commanders and is currently on trial for permitting his soldiers under those same commanders to kill nine people who were resisting the coup, even though the American-backed military plotters — who now rule Egypt and are prosecuting Morsi — have killed thousands of Egyptian civilians who attempted to resist the removal of Morsi from office. The result is a military dictatorship and murderous resistance far more odious than in the Mubarak years. And in Ukraine in 2004, the Bush administration fomented the so-called Orange Revolution. This, too, was done by our diplomats and intelligence community, whose agents agitated demonstrators in the streets and liberally distributed American dollars to them. This resulted in a free election, which resulted in subsequent free elections, until the most recent of those produced a president who — as an ex-communist — was more drawn to Russia than to the U.S. or Europe. When the Ukraine government needed cash and Russia offered it a better deal than the European Union, our imperial diplomats and lawless intelligence gurus were embarrassed. So, the U.S. fomented another revolution in the streets of Kiev. One of our diplomats, Victoria Nuland, acknowledged as much in a tapped and taped (complete with expletives) and eventually viral cellphone conversation. Then, Viktor Yanukovich, the popularly and lawfully elected Ukraine president, was toppled and fled to Moscow. The new unelected Ukraine president has received American recognition and help. Earlier this week, the U.S. offered him $1 billion in immediate cash. Enter Vladimir Putin. He is the popularly elected president of Russia who has designs on reconstituting the old Soviet Union. Putin is also an ex-KGB agent; he is a torturer, a murderer, a tyrant and a monster. He often has lamented the demise of the former Soviet Union. Ukraine was a part of that union until the evil empire dissolved in 1991. It was the most economically productive part of that union. Today it enjoys a mostly free market and is highly entrepreneurial, though partly a welfare state. Roughly two-thirds of Ukraine identifies with Europe and one-third with Russia. After Yanukovich showed up at Putin's doorstep in Moscow, Putin flexed his muscles by sending 16,000 Russian troops, in uniforms without insignias and wearing black masks (you cannot make this up), over the border to occupy Crimea, a province of Ukraine, which had been part of Russia and the Soviet Union until 1954. Putin's invasion is profoundly unlawful, as it constitutes the introduction of military troops into a sovereign territory without governmental invitation or consent, and the absence of identifying insignia puts this invasion outside the protections of the Geneva Conventions and the rules of war. Hence the Russian troops are legally fair game for Ukrainian troops and civilian militias. But don't expect that to happen. Russia has two times the number of tanks as Ukraine, 10 times the troops and 12 times the air power. As well, don't expect the Russians to leave. Most residents of Crimea are Russian speaking and actually welcome their invaders (again, you cannot make this up). And Putin's track record in foreign incursions shows a pattern of retaining conquered territories. When he invaded Georgia in 2008, he kept two provinces, which are still occupied with more than 40,000 idle and costly Russian troops. The U.S. and Europe are in no position to resist the Russian invasion, nor should they. Europe receives roughly 30 percent of its oil, natural gas and coal from Russia. If the U.S. tightens the economic screws on Russia, American banks will suffer, and the Russian oligarchs and Russian people will suffer, but no group will suffer as much as Europeans who have grown dependent on Russian fuel. And Putin is unmoved by personal embarrassment or human suffering. The stated purpose of the Russian invasion is to protect predominantly ethnic Russians in Crimea from the mob-induced fate of Yanukovich. At first blush, this seems nonsense. But consider the view from Moscow of the American-induced expulsion of the popularly elected and Russian-oriented Ukraine president. And then consider this: What would the U.S. do if the Chinese had fomented a revolution in Mexico and installed a Chinese-friendly government there that solicited Chinese loans and invited the Chinese to help govern? Would the U.S. protect English-speaking American-friendly folks along the Texas-Mexico border? And how is anyone in the U.S. harmed by Putin's lawlessness? Should the United Sates government roam the world seeking monsters to slay, or should it learn from its recent grave mistakes? Nearly two centuries ago, President John Quincy Adams warned his successors against the foreign policies that would be manifest in the Bush/Obama years. "Americans should not go abroad to slay dragons that they do not understand in the name of spreading democracy." But the government is an old dog that cannot learn new tricks.
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Post by philunderwood on Mar 13, 2014 13:03:57 GMT -5
A Rivalry of Government Hackers By Judge Andrew P. Napolitano www.JewishWorldReview.com | The government is caught up in another scandal in which federal agents have been accused of hacking into one another's computers. When the CIA was established in 1947, Congress and President Truman were concerned that it might not confine itself to spying. Its sole statutory purpose was to steal secrets from foreign governments so that the U.S. would know what they were planning and could prepare for any behavior adverse to American government interests. By its nature, it was operating in secret, and because it lacked transparency, it lacked accountability. One of the statutory mechanisms to achieve accountability was to require the CIA to report to two committees of Congress, but in secret. Over the years, as sometimes happens between regulators (the congressional committees) and the entity to be regulated (the CIA), they developed a chummy relationship. In this case, the relationship has been so chummy that at the behest of Presidents Bush and Obama the CIA has gone to the Senate and House Intelligence committees, instead of going to the full Congress, for permission to torture prisoners, kill Americans with drones and fight small-scale wars — all well beyond the statutory mission of stealing secrets. The members of these committees are senators and representatives who apparently approve of the CIA's expanded role. Because the committees meet in secret, we don't know what the CIA requested, whether any members objected to any requests, whether the committees denied any requests or even precisely what was approved. The members of Congress who are on these committees have sworn oaths of secrecy. These are the same committees that have given permission to the National Security Agency (NSA) to spy on all Americans all the time, so we are probably justified in concluding that the committees and the intelligence agencies they supposedly regulate are more attuned to governmental power than to personal liberty. The power of these committees effectively has established them as mini-Congresses that are unrecognized by the Constitution and are well outside its confines. The Constitution provides that "all legislative powers" are granted to Congress, not to a select few in Congress, but to Congress as a whole. This is a serious constitutional issue because Congress is mostly transparent and its members are directly answerable to the voters, yet the secrecy of these committees prevents their members from discussing what they know with other members of Congress, unless done openly on the floor of the House or Senate, which they rarely do. The mania for secrecy and the natural inclination of unaccountable governmental entities to grow rather than stabilize or shrink have resulted in the present state of affairs. The present state of affairs has 95 percent of Congress in the dark about what the CIA is doing and the CIA getting its authority to exceed its statutory limitations from the other 5 percent. But a dispute has arisen between the CIA and the Senate Intelligence Committee over the nature and extent of the CIA detentions and use of torture during the Bush years. In February 2009, the Senate Intelligence Committee decided to investigate the CIA. After CIA stonewalling and after learning that a senior CIA official destroyed much evidence of torture, the Senate Intelligence Committee insisted on examining the CIA's secret files to learn what it did to those prisoners in its custody and what evidence was destroyed. Torturing prisoners and destroying government records are federal crimes. In order to facilitate the Senate investigation, the CIA was instructed to make its records digitally available to investigators, which it did at an unmarked subterranean facility in Virginia. There, investigators have spent many months looking at CIA computer records of its Bush-era interrogation procedures. In the course of doing so, they learned that their computers in the CIA's secure facility — the ones they were using to examine CIA files in the subterranean room — were hacked. It appears to the Senate investigators that the hackers were CIA agents wanting to learn what the investigators found out about them. The CIA counters that the investigators actually hacked into CIA computers when they examined far more materials than the CIA had agreed to make available. This is more than a schoolyard brawl. This is the unbridled and likely unlawful use of government computers and classified materials by CIA employees trying to dampen the enthusiasm of their regulators, or by Senate investigators accessing classified materials to which they may not be entitled. Either way, this is a violation of the Fourth Amendment's prohibition of warrantless searches and seizures. Any other persons who did this would be indicted for hacking. Because all of this is so secret, we don't know whether the Department of Justice is looking into who broke what laws. But we do know that like its cousin the NSA, the CIA often acts above the law. It does so knowing that indictments for torturing, destroying evidence or computer hacking are unlikely, as any trial would expose the depths of this skullduggery, the unconstitutional system of mini-Congresses and the secrets these employees are trying to keep from their employers — the American people. In a democracy, the government must be accountable to the people it serves. Secrecy and accountability are enemies. The natural right to know what the government is doing means that secrecy must be minimized. A Congress that rubber-stamps what secret agents want it to do by a secret procedure is a dangerous mix that will impair personal liberty in a free society. In our post 9/11 world, the government has gotten away with hiding its worst behavior behind a veil of secrecy, publicly justified by the fears of a loss of safety that it has instilled in the public. That is not condoned by the Constitution. Under the Constitution, a free people are always entitled to know what the government is doing, and we are entitled to a government that obeys the laws it enforces against the rest of us so we can replace the government when it fails to protect our freedoms.
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