Wisdom of the Judge

[philunderwood]

Freedom for Me, but Not for Thee

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

Initially, I was gratified to learn that Sen. Dianne Feinstein, D-Calif., the chair of the Senate Intelligence Committee, was unafraid to take on the Central Intelligence Agency (CIA) over the issue of domestic spying.

The CIA is limited by its charter to stealing secrets from foreigners outside the U.S. However, in a recent dust-up, Feinstein took to the Senate floor to accuse the CIA of spying on staff members of her committee while they were examining CIA documents in Virginia. This may be the first acknowledgment by any senior government official who walks the halls of the intelligence community that the CIA engages in domestic spying.

For five years, the Senate Intelligence Committee has been examining classified CIA materials involving CIA use of torture during the Bush administration. It is doing so because a now retired CIA official admitted destroying evidence of torture. We may never know what torture the CIA was authorized to engage in, but we can conclude that along with its counterpart in the House, the Senate Intelligence Committee has either looked the other way or expressly approved CIA behavior that well transcends its charter. This unlawful behavior includes not only torture, but also killing Americans via the use of drones, and small-scale unpublicized warfare.

So, you can imagine the glee this defender of personal freedom and the rule of law initially felt when I learned that the CIA's erstwhile champion had had what appeared to be a change of heart. Feinstein surely is the most effective defender of the intelligence community on Capitol Hill. Until last week, she publicly supported and shielded but never criticized the massive spying on Americans by the National Security Agency (NSA), the CIA's cousin. She must have supported the CIA's torture, killings and warfare — but something about the torture caused her to induce her committee to engage in a full-scale investigation of the Bush-era torture her committee must have approved.

I say "must have" because, in this weird post-9/11 world, Congress does not review the CIA's behavior or expand its powers; these two congressional committees do. Because Congress chartered the CIA, and because the CIA charter does not contemplate behavior beyond stealing foreign secrets, and because only Congress can change federal laws, any expansion of the CIA's duties not authorized by Congress is unconstitutional — and yet aside from the point I address here.

The point I address here is that Feinstein's outrage was directed at CIA domestic spying for the wrong reasons. She not only expressed no outrage over NSA spying, including upon her 37 million California constituents, but she approved it. The CIA behavior that she condemns is the unapproved or unreported torture and the domestic spying on a dozen persons in another branch of government. The NSA behavior that she approves is spying on all Americans all the time. All of this behavior goes to the heart of personal liberty in a free society.

At that heart is the principle of personal sovereignty — the idea that individuals are sovereign and the state is merely one instrument with which to protect that sovereignty.

Yet the government of which Feinstein approves has been assaulting personal sovereignty by destroying personal privacy. Privacy is not only a natural right — it exists by virtue of our humanity — but it has sound historical and textual roots. A natural right is an area or zone of personal behavior that may not be interfered with by the government, no matter whose good that interference might serve.

The historical roots of privacy are the now well-known numerous instances of colonial antipathy toward the British practice of general warrants. General warrants were issued by British judges to British agents in London in secret, and they permitted and authorized British agents in America to search wherever they wished for whatever they sought. Sound familiar? The textual roots of privacy have been identified by the Supreme Court in numerous places in the Constitution, not the least of which is the Fourth Amendment prohibition of searches and seizures without warrants that identify the target and that are based on the probable cause of criminal behavior of the target.

Feinstein's farrago against the CIA was forceful yet personal. She has defended certain forms of torture when employed by the CIA to obtain intelligence from the victims of the torture. Yet she has deplored certain forms of torture — without identifying them — because the CIA apparently did not seek the permission of the congressional committees in advance or misrepresented the nature and severity of the torture to the committees afterward.

Her committee was undertaking an investigation into this unreported or under-reported torture when it noticed that the CIA had hacked into its computers. That hacking, which the CIA has denied, caused her to rip into the CIA on the Senate floor.

Do you see where Feinstein and her colleagues have taken us? They have taken us to a secret government willing to crush natural rights to privacy and bodily integrity — but only if Feinstein and her dozen or so congressional colleagues approve.

Is she seeking to expose torture because it is immoral, unlawful, unconstitutional and un-American or because she had not approved of it? Is she angry because the CIA illegally spied in the U.S. or because the CIA illegally spied in the U.S. on her staff? Who can be intellectually honest about anger over spying on a handful of colleagues and indifferent to or even supportive of spying on hundreds of millions of Americans?

You get the picture. She has no problem with experiments with our liberties, unless she and her staff are the victims.

If the government truly derives its powers from the consent of the governed, it must recognize that in areas of natural rights — speech, press, worship, self-defense, travel, bodily integrity, privacy, etc. — no one, not even a well-intended majority, can consent to their surrender for us. James Madison knew this when he argued that experiments with our liberties would be the beginning of the end of personal freedom.

We are now well beyond that beginning.

[philunderwood]

Probable Cause

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

Except for the definition and mechanism of proving treason, no area of the Constitution addressing the rights of all persons when the government is pursuing them is more specific than the Fourth Amendment. The linchpin of that specificity is the requirement that the government demonstrate probable cause to a judge as a precondition to the judge issuing a search warrant. The other specific requirement is identity: The government must identify whose property it wishes to search or whose behavior it wishes to monitor, because the Fourth Amendment requires that all warrants specifically describe the place to be searched or the person or thing to be seized.

The principal reason for these requirements is the colonial revulsion over general warrants. A general warrant does not specifically describe the place to be searched or the person or thing to be seized, and it is not based on the probable cause of criminal behavior of the person targeted by the government.

With a general warrant, the government simply gets authority from a judge to search a haystack looking for a needle, and in the process, it may disturb and move all the straw it wants. Stated differently, a general warrant permits the government to intrude upon the privacy of persons as to whom it has no probable cause of criminal behavior and without stating what it is looking for.

The Foreign Intelligence Surveillance Act (FISA) court has been issuing general warrants to the National Security Agency (NSA) since 1978, but it was not until last June that we learned that these general warrants have been executed upon the telephone calls, text messages, emails, bank records, utility bills and credit card bills of all persons in America since 2009.

The constitutional requirement of probable cause is not political fancy; rather, it saves us from tyranny. Probable cause is a quantum of evidence that is sufficient to lead a neutral judge to conclude that the person about whom the evidence has been presented is more likely than not to possess further evidence of criminal behavior, or has more likely than not engaged in criminal behavior that is worthy of the government's use of its investigatory tools such that the government may lawfully and morally invade that person's natural right to privacy.

Last week, Robert S. Litt, general counsel for the Office of the Director of National Intelligence, which runs the NSA, engaged in a curious colloquy with members of the president's Privacy and Civil Liberties Oversight Board. Litt complained that presenting probable cause about individuals to judges and then seeking search warrants from those judges to engage in surveillance of each of those individuals is too difficult.

This is a remarkable admission from the chief lawyer for the nation's spies. He and the 60,000 NSA employees and vendors who have been spying on us have taken oaths to uphold the Constitution. There are no loopholes in their oaths. Each person's oath is to the entire Constitution — whether compliance is easy or difficult. Yet the "too difficult" admission has far-reaching implications.

This must mean that the NSA itself acknowledges that it is seeking and executing general warrants because the warrants the Constitution requires are too difficult to obtain. Stated differently, the NSA knows it is violating the Fourth Amendment to the Constitution, because that amendment expressly forbids general warrants.

In my career as a lawyer, judge, law professor, author and television commentator, I have heard many excuses for violating the Constitution. I reject all of them when they come from one who has sworn to uphold the Constitution, yet I understand the intellectually honest excuses — like exigent circumstances — when they are based on duty. The NSA's excuses are not intellectually honest, and they are not based on duty. They are based on laziness.

But there was more than met the eye in Litt's testimony last week. Two days after Litt admitted to the use of general warrants, and while the president was in Europe, the White House leaked to the press its plans to curtail the massive NSA spying. Those plans, which would change only the appearance of what the NSA does but not its substance, have three parts.

The first change relieves the NSA of the need for general warrants to require delivery of massive amounts of data about innocent Americans as to which the NSA has no probable cause, because the second change requires the computer servers and telecoms to preserve their records — instead of the NSA preserving them — and make them "immediately" available to the NSA when it comes calling. And the third is the requirement of a warrant from a FISA judge before the NSA may access that stored data. But because that warrant is not based on probable cause but rather on NSA whim, it is a foregone conclusion that the general warrants for examination, as opposed to delivery, will be granted. The FISA court has granted well in excess of 99 percent of the general warrants the NSA has sought.

Litt must have known what the White House planned to leak when he made his "too difficult" complaint, as it fits nicely with this new scheme. Yet the scheme itself, because it lacks the requirement of probable cause that the Constitution requires, is equally as unconstitutional and morally repugnant as what the NSA has been doing for five years. Moreover, the NSA will not exactly go hat in hand to the computer servers and telecoms once it wishes to hear telephone calls or read emails or credit card bills. Its agents will simply press a few buttons on their computers when they wish, and the data they seek will be made available to them.

These so-called changes should be rejected by Congress, which should overhaul the NSA instead. Hasn't Congress seen enough? The NSA and the CIA spy on the courts, Congress, the military, the police and everyone in America. This keeps none of us safer. But it does lessen our freedom when those in whose hands we repose the Constitution for safekeeping look the other way. What other freedoms are slipping because Congress, too, thinks upholding the Constitution is too difficult?

[philunderwood]

What if Secrecy Trumps the Constitution?

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

What if the National Security Agency (NSA) knows it is violating the Constitution by spying on all Americans without showing a judge probable cause of wrongdoing or identifying the persons it wishes to spy upon, as the Constitution requires? What if this massive spying has come about because the NSA found it too difficult to follow the Constitution?

What if the Constitution was written to keep the government off the people's backs, but the NSA and the president and some members of Congress have put the NSA not only on our backs, but in our bedrooms, kitchens, telephones and computers? What if when you look at your computer screen, the NSA is looking right back at you?

What if the NSA really thought it could keep the fact that it is spying on all Americans and many others throughout the world secret from American voters? What if Congress enacted laws that actually delegate some congressional powers to elite congressional committees — one in the Senate and one in the House? What if this delegation of power is unconstitutional because the Constitution gives all legislative powers to Congress as a whole and Congress itself is powerless to give some of its power away to two of its secret committees? What if the members of these elite committees who hear and see secrets from the NSA, the CIA and other federal intelligence agencies are themselves sworn to secrecy?

What if the secrets they hear are so terrifying that some of these members of Congress don't know what to do about it? What if the secrecy prohibits these congressional committee members from telling anyone what they know and seeking advice about these awful truths? What if they can't tell a spouse at home, a lawyer in her office, a priest in confessional, a judge when under oath in a courtroom, other members of Congress or the voters who sent them to Congress?

What if this system of secrets, with its promises not to reveal them, has led to a government whose spies have intimidated and terrified some members of Congress? What if one member of Congress — Sen. Jay Rockefeller, a Democrat from West Virginia — wrote to then-Vice President Dick Cheney and voiced fears that totalitarianism is creeping into our democracy? What if he wrote that letter in his own hand because he feared he might be prosecuted if he dictated it to a secretary or gave it to his secretary for typing? What if he was terrified to learn what the spies told him because he knew he could not share it with anyone or do anything about it?

What if the NSA's chief apologist in Congress — Sen. Dianne Feinstein, a Democrat from California — took to the only safe place in the world where she could reveal what she learned from the spies and not be prosecuted for violating her oath of secrecy and there revealed a secret? What if that place is the Senate floor, and what if, while there, she revealed that she approved of the NSA spying on all Americans but disapproved of the CIA spying on her staff? What if it is unlawful and unconstitutional for the CIA to spy on anyone in the United States — whether private citizen, illegal alien or member of a Senate staff?

What if the equality of the branches of government is destroyed when one of them spies on the other? What kind of a president spies on Congress? What kind of members of Congress sit back and let themselves become victims of spying? What if Congress could stop all spying on all Americans by a simple vote? What if Congress could stop the president from spying on its own members with a simple vote? What if Congress is afraid to take these votes?

What if secret government is unaccountable precisely because it is secret? What if the people's representatives in government have a moral obligation to reveal to their constituents that the president's spies are spying on all of us, and they — members of Congress — have not lifted a finger to stop it? Would we all vote differently if we knew the secrets the government has shared with a select few but kept from the rest of us? What if your own representatives in the House and the Senate are lying to you because of fear of the consequences of revealing secrets?

What if the NSA chief claimed to a congressional committee — one of those with which he secretly shares secrets — that all this spying has stopped 57 terror plots? What if the next day he changed that number to three plots? What if he has declined to say what those three plots were? What if a federal judge found that all this spying has not prevented any identifiable plots?

What if all this spying doesn't work? What if the NSA has too much data about all of us? What if the president knowingly declined to uphold the Constitution and instructed his spies to do the same? What if the NSA is so accustomed to spying on all of us all the time that it lacks the ability to obtain probable cause and to identify the persons upon whom it needs to spy? What if the government's culture of secrecy and spying has taken on a life of its own? What if even those who started it are afraid to stop it?

What if the NSA missed the shoe bomber, the underwear bomber, the Ft. Hood massacre, the Times Square bomber, the Boston Marathon bombers, the coup in Kiev and the Russian invasion of Ukraine? What if the NSA wasted its time spying on Aunt Tillie in Des Moines and the Pope in Rome and Chancellor Merkel in Berlin, instead of Vladimir Putin in Moscow?

What if secrecy has replaced the rule of law? What if that replacement has left us in the dark about what the government knows and what it is doing? What if few in government believe in transparency? What if few in government believe in the Constitution?

What do we do about it?

[philunderwood]

A Government Admission of Wrongdoing

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

Last week, National Intelligence Director Gen. James R. Clapper sent a brief letter to Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee, in which he admitted that agents of the National Security Agency (NSA) have been reading innocent Americans' emails and text messages and listening to digital recordings of their telephone conversations that have been stored in NSA computers, without warrants obtained pursuant to the Constitution. That the NSA is doing this is not newsworthy — Edward Snowden has told the world of this during the past 10 months. What is newsworthy is that the NSA has admitted this, and those admissions have far-reaching consequences.

Since the Snowden revelations first came to light last June, the NSA has steadfastly denied them. Clapper has denied them. The recently retired head of the NSA, Gen. Keith Alexander, has denied them. Even President Obama has stated repeatedly words to the effect that "no one is reading your emails or listening to your phone calls."

The official NSA line on this has been that the Foreign Intelligence Surveillance Act (FISA) court has issued general warrants for huge amounts of metadata only, but not content. Metadata consists of identifying markers on emails, text messages and telephone calls. These markers usually identify the computer from which an email or text was sent or received, and the time and date of the transmission, as well as the location of each computer. Telephone metadata is similar. It consists of the telephone numbers used by the callers, the time, date and duration of the call, and the location of each telephone used in the call.

American telecommunications and Internet service providers have given this information to the NSA pursuant to warrants issued by secret FISA court judges. These warrants are profoundly unconstitutional, as they constitute general warrants. General warrants are not obtained by presenting probable cause of crime to judges and identifying the person from whom data is to be seized, as the Constitution requires. Rather, general warrants authorize a government agent to obtain whatever he wants from whomever he wants it.

These general warrants came about through a circuitous route of presidential, congressional and judicial infidelity to the Constitution during the past 35 years. The standard that the government must meet to obtain a warrant from a FISA court judge repeatedly has been lessened from the constitutional requirement of probable cause of crime, to probable cause of being a foreign agent, to probable cause of being a foreign person, to probable cause of talking to a foreign person. From this last category, it was a short jump for NSA lawyers to persuade FISA court judges that they should sign general warrants for all communications of everyone in America because the NSA was not accessing the content of these communications; it was merely storing metadata and then using algorithms to determine who was talking to whom.

This was all done in secret — so secret that the president would lie about it; so secret that Congress, which supposedly authorized it, was unaware of it; and so secret that the FISA court judges themselves do not have access to their own court records (only the NSA does).

It was to further this public facade that Clapper lied to the Senate Intelligence Committee last year when he replied to a question from Wyden about whether the NSA was collecting massive amounts of data on hundreds of millions of Americans by saying, "No" and then adding, "Not wittingly." The stated caveat in the NSA facade was a claim that if its agents wanted to review the content of any data the NSA was storing, they identified that data and sought a warrant for it.

This second round of warrants is as unconstitutional as the first round because these warrants, too, are based on NSA whims, not probable cause of crime. Yet, it is this second round of warrants that Clapper's letter revealed did not always exist.

Snowden, in an act of great personal sacrifice and historic moral courage, directly refuted Clapper by telling reporters that the NSA possessed not just metadata but also content — meaning the actual emails, text messages and recordings of telephone calls. He later revealed that the NSA also has the content of the telephone bills, bank statements, utility bills and credit card bills of everyone in America.

In his letter to Wyden last week, Clapper not only implicitly acknowledged that Snowden was correct all along, but also that he, Clapper, lied to and materially misled the Senate Intelligence Committee, and that the NSA is in fact reading emails and listening to phone calls without obtaining the second warrant it has been claiming it obtains.

One wonders whether Obama was duped by Clapper when he denied all this, or whether he just lied to the American people as he has done in the past.

One also wonders how the government could do all this with a straight face. This is the same government that unsuccessfully prosecuted former New York Yankees pitcher Roger Clemens twice for lying to a congressional committee about the contents of his urine. Shouldn't we expect that Clapper be prosecuted for lying to a congressional committee about the most massive government plot in U.S. history to violate the Fourth Amendment? Don't hold your breath; the president will protect his man.

Yet, Congress could address this independent of a president who declines to prosecute his fellow liars. Congress could impeach Clapper, and the president would be powerless to prevent that. If Congress does that, it would be a great step forward for the rule of law and fidelity to the Constitution. If Congress does nothing, we can safely conclude that it is complicit in these constitutional violations.

If Congress will not impeach an officer of the government when it itself is the victim of his crimes because it fears the political consequences, does it still believe in the Constitution?

[philunderwood]

A Legal Way To Kill?

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

When President Obama decided sometime during his first term that he wanted to be able to use unmanned aerial drones in foreign lands to kill people — including Americans — he instructed Attorney General Eric Holder to find a way to make it legal — despite the absolute prohibition on governmental extra-judicial killing in federal and state laws and in the Constitution itself.

"Judicial killing" connotes a lawful execution after an indictment, a jury trial, an appeal and all of the due process protections that the Constitution guarantees defendants. "Extra-judicial killing" is a targeted killing of a victim by someone in the executive branch without due process. The president wanted the latter, and he wanted it in secret.

He must have hoped his killing would never come to light, because the Fifth Amendment to the Constitution could not be more direct: "No person shall be ... deprived of life, liberty or property without due process of law."

Due process has a few prongs. The first is substantive, meaning the outcome must be fair. In a capital murder case, for example, the defendant must not only be found guilty by a jury, but he also must truly be guilty.

The second prong of due process is procedural. Thus, the defendant must be charged with a crime and tried before a neutral jury. He is entitled to a lawyer, to confront the witnesses against him and to remain silent. The trial must be presided over by a neutral judge, and in the case of a conviction, the defendant is entitled to an appeal before a panel of three neutral judges.

The third prong of due process means that the defendant is entitled to the procedures "of law," that is, in the federal system, as Congress has enacted.

There are numerous additional aspects of due process, the basics of which emanate from the Constitution itself. Yet, the "of law" modifier of the constitutional phrase "due process" gives Congress, not the president, the ability to add to the due process tools available to a defendant. Congress may subtract what it has added, but neither Congress nor the president may remove any of the tools available to the defendant under the Constitution.

Until now.

Now, we have a president whose principal law enforcement and intelligence officers have boasted that the president relies on a legal way to kill people without the time, trouble and cost of due process. The president himself, as well as the attorney general, boasted of this, as did the director of national intelligence and the director of the CIA. Yet, when asked by reporters for The New York Times for this legal rationale, Holder declined to provide it. He argued that the legal rationale for the presidential use of extra-judicial killings was a state secret, and he dispatched Department of Justice (DoJ) lawyers to court, where they succeeded in persuading a federal judge in New York City to deny the Times' application to order the government's legal rationale revealed.

How can a legal rationale possibly be a state secret? The facts upon which it is based could be secret, but the laws are public, the judicial opinions interpreting those laws are public, and there are no secret non-public parts of the Constitution. Yet notwithstanding the above observations, the Times lost.

The judge who dismissed the case obviously was uncomfortable doing so. She wrote: "The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself struck by a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules — a veritable Catch-22. I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret."

Two weeks after Judge Colleen McMahon begrudgingly dismissed that case, the feds decided to gloat, and so they leaked a 16-page summary of their "secrets" to a reporter at NBC News. To the federal appeals court to which the Times appealed, that was the last straw. It is one thing, the appellate court ruled, for the president and his team to boast that they know how to kill legally by finding a secret "adequate substitute" for due process and keeping the secret a secret, but it's quite another for them to reveal a summary of their secrets to their favorite reporters.

Thus, earlier this week, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously ordered the DoJ to reveal publicly its heretofore secret rationale for extra-judicial killing.

Welcome to the strange new world of Barack Obama's war on terror, in which there are no declarations of war against countries that foment or harbor enemy activities, as the Constitution authorizes, and in which the president claims the powers of a king by killing whomever he wishes under a rationale that his lawyers wrote for him and that he has desperately tried to keep secret.

The Obama administration is probably right to fear the revelation of this so-called legal way to kill. The appellate court decision is a profound and sweeping rejection of the Obama administration's passion for hiding behind a veil of secrecy. But it is not a decision on the merits: It does not address whether the president may kill, and it only lifts a small corner of his veil.

We already know that behind Obama's veil lies a disingenuous president who claims he can secretly kill fellow Americans. Who knows what else we will find?

[philunderwood]

Race and Freedom

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

Cliven Bundy should be happy for the public revelation of the private comments of fellow racist Donald Sterling; the latter has replaced the former as the person Americans most love to hate. These two bigots recently spewed racial hatred: Bundy suggesting that African-Americans might do well to consider slavery over freedom, and Sterling offering disjointed comments that reveal his evident beliefs in white supremacy.

Bundy is a Nevada rancher who became a hero to the right for standing up to the heavy hand of federal suppression of property rights in the West. He and his family had been grazing their cattle on land they believed was theirs or the state of Nevada's for more than 100 years, when along came the federal Bureau of Land Management (BLM), which claimed the land and assessed Bundy for his use of it. A federal judge upheld the claims and the million-dollar assessment; yet Bundy refused to pay. Instead of filing the judgment in a courthouse, as you and I would do if we had a judgment against Bundy, the feds showed up with 200 camouflage-clad machine gun-bearing federal agents determined to steal Bundy's cattle.

Soon, thousands of Nevadans showed up to support Bundy, whereupon the feds enacted a "free speech zone." They ordered the protesters either to remain silent, or to enter the zone and protest there. The zone was a 25-square-yard patch of earth in the Nevada desert, three miles from the Bundy/BLM confrontation site.

Sterling is a billionaire who owns the Los Angeles Clippers of the National Basketball Association (NBA) and was a hero to the left for his public support of liberal causes. He has given generously to the Los Angeles chapter of the NAACP and to the Democratic Party in California. He is white, married and apparently enjoys the company of a biracial girlfriend. Recordings of his several wild, weird, disjointed rants directed to the girlfriend and uttered in the privacy of his own home have been played publicly. In them, Sterling directs his girlfriend not to attend Clipper games in the company of her African-American friends.

Both of these men used hateful and hurtful words that were animated by truly condemnable attitudes about race. No moral person credibly could suggest that slavery is preferable to freedom, and no moral person credibly could suggest that whites are superior to blacks in any respect. Those were attitudes advanced by antebellum slave owners and 20th-century supporters of laws that used the machinery of government to harm blacks during the 100 years following the Civil War.

All rational people, understanding the colorblindness of the natural law, have a moral obligation — but not a legal one — publicly to treat persons of different races with equal dignity and respect. I can morally prefer a friend or a mate who is of my race, but I cannot morally hate a potential friend or mate just because the person is not of my race. I do not know what is in their hearts, but Bundy and Sterling are apparently haters.

What to do with them because of their speech? Nothing. I mean nothing. Racially hateful speech is protected from government interference by the First Amendment, which largely was written to protect hateful speech. Neither Bundy nor Sterling has been accused in these instances of racially motivated conduct — just speech animated by hatred.

In the Bundy case, the feds did suppress speech by keeping it three miles away from them. Free speech, assembly and the right to petition the government would become empty and meaningless if the governmental targets of the speech and assembly could not hear it. The First Amendment will condone outlawing the use of a bullhorn by protesters in front of a hospital at 3 o'clock in the morning. But it will not condone free speech zones for the sake of government convenience. The entire United States of America is a free speech zone.

In Sterling's case, is it fair to punish someone for speech uttered in the privacy of his home? It would be exquisitely unfair for the government to do so, but the NBA is not the government. When Sterling bought his basketball team, he agreed to accept punishment for conduct unbecoming a team owner or conduct detrimental to the sport. Is speech conduct? For constitutional purposes, it is not; the Constitution does not restrain the NBA. It is free to pull the trigger of punishment to which Sterling consented.

But it needn't do so.

Hateful and hurtful words have natural and probable consequences where the people are free to counter them. The government has no business cleansing the public marketplace of hateful ideas. The most effective equalizer for hatred is the free market. It will remedy Sterling's hatred far more effectively than the NBA can. As advertisers and sponsors and fans desert Sterling-owned properties, he will be forced to sell them, lest his financial losses become catastrophic. And it has removed Bundy from the public stage altogether.

But don't hold your breath waiting for the forces of freedom to nullify hatred. Soon the forces of darkness will attempt to do so as creative prosecutors and hungry litigators bring the government into the fray. I hope they stay home and follow the natural law principle of subsidiarity, which mandates that public problems be solved using the minimum force necessary, not the maximum force possible — and no force at all where peaceful measures are just as effective.

I would not invite Bundy or Sterling into my home, nor would I befriend them. But I will defend with zeal and diligence their constitutional freedoms.

[philunderwood]

Finding the Truth at Benghazi

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

When the White House, in response to a Freedom of Information Act (FOIA) request filed by the fearless private watchdog group Judicial Watch, turned over an email about constructing the appropriate narrative response to the tragedy at Benghazi written by Ben Rhodes, a deputy national security adviser to President Obama, and investigators from the House of Representatives realized that they had subpoenaed that email and not received it, they knew that there was far more to learn about the affair than met the eye.

The affair consisted of an organized fatal assault on the American consulate in that Libyan city that resulted in the deaths of the American ambassador and three State Department contractors assigned to protect him. It also includes a White House-orchestrated cover-up involving profoundly misleading statements after the attack, followed by an only-in-Washington cover-up of the cover-up.

The attack on the consulate occurred on Sept. 11, 2012, the 11th anniversary of 9/11, just as the American presidential election campaign between Obama and Gov. Mitt Romney was getting under way. Two weeks prior to the attack, Obama had assured his political supporters for the hundredth time that al-Qaida was on the run, its leadership had been subdued, and that he was the cause of that. The last thing his campaign managers wanted to confront in the middle of September was an al-Qaida-orchestrated attack on American property in the Middle East in which our ambassador was murdered.

Yet, that's what confronted the Obama campaign managers. So, they concocted a narrative that they could comfortably live with and that they believed the American public would accept. Susan Rice, then the U.S. ambassador to the United Nations, relayed the narrative. Rice either permitted herself to become a political tool or materially lied to the American public when she told five Sunday morning talk shows on Sept. 16, 2012, that the attacks in Benghazi were not acts of terror and were not aimed at the ambassador, but rather were the spontaneous and unplanned reaction of a street crowd to a cheap anti-Muslim Internet clip that some jerk in California had made earlier that summer.

For a while, this seemed successful. The president was able to continue misleading the electorate with his claim that al-Qaida was on the run, Secretary of State Hillary Clinton was able to distance herself from the failure of her State Department to protect its own employees, and Romney and the Republicans would not discover the truth, or at least would not develop a narrative sufficient to contradict the White House narrative, until after the election.

It worked.

Now, with the discovery of the Rhodes email, it appears that the White House did use the instruments of government to aid the president's re-election campaign by deceiving the American people and telegraphing that proposed deception to the president's campaign officials. Using government personnel and assets to coordinate a political campaign, even if done truthfully and above board, violates federal criminal statutes.

As if that were not bad enough, it now appears that the State Department had special operations forces in close proximity to Benghazi, and the White House ordered them to stand down rather than confront the attackers, meet force with force and endeavor to save the lives of the ambassador and others, though at the risk of contradicting the president's political boast.

When the truth — that the Benghazi attack was an al-Qaida-organized assault complete with military hardware and sophisticated planning — became known, and when the apparent deception by the president, the White House and the State Department was discovered, Republicans were furious.

Then the cover-up of the cover-up began, as the House Committee on Oversight and Government Reform learned when it tried to determine who told the U.S. forces to stand down, who dispatched Rice to tell lies, who certified that the Rhodes email did not exist and who then eventually released it. The committee wanted to know whether Rice was duped or was part of a plot to use the instruments of government to lie and deceive and enhance Obama's chances of defeating Romney.

So, the Oversight Committee issued subpoenas and held hearings and concluded — a conclusion with which even the Democrats now agree — that the Benghazi attack was part of an organized terrorist assault, and the consulate was undefended.

Then Judicial Watch revealed the reply to its FOIA request of the White House, which included the Rhodes email, and a political firestorm broke loose. Speaker John Boehner addressed that firestorm by asking the House to form a Select Committee — one whose sole goal is to get to the bottom of this — and to grant it a serious budget and a full legal and investigative staff, and to set it loose upon the administration's deceivers.

Already, the administration has declared that many of the documents the Select Committee will seek have been classified as top secret, and the president is free to classify any document he wants for any reason he chooses. Legally, that argument is correct. Frustrated congressional Republicans have no one to blame but themselves here, as they gave that legal power to President George W. Bush.

Nevertheless, can the Select Committee subpoena the president and his records to find out where he was during the eight-hour attack, who gave the order to stand down and permit murder rather than suffer political embarrassment, and who concocted the Rice deceptions? Yes. And he will claim executive privilege, and a federal judge will make the call.

And so, here comes Watergate, 21st-century style — except this time around, innocent people died. This time around, will it have the same outcome?

[philunderwood]

A Dog Whistle to the Left

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

I am not a fan of former U.S. Treasury Secretary Timothy F. Geithner. He presided over the politically conceived, patently unconstitutional and anti-free market taxpayer bailouts of banks, automakers and insurance companies in the latter part of the administration of former President George W. Bush, when he was the head of the Federal Reserve Bank of New York, and during the first term of President Obama, when he was the secretary of the Treasury.

In those years and still today he has argued that aggressive government intervention leads to a stronger financial system because the government will take risks with taxpayer money that the taxpayers themselves will not take with it. He believes in the use of government coercion, rather than the voluntary choices of consumers and investors.

Those of us who embrace the free market do so not only because it has produced more broad-based prosperity than any government has, but also because it offers the only moral system of financial exchanges for goods and services because in a truly free market every exchange is voluntary. Coercing money from taxpayers to pay for the failures of businesses is theft.

We also argue that the recession of 2008 was largely caused by the bursting of the housing bubble, and that bubble was induced by the government. The Federal Reserve, on whose board Geithner sat, commanded artificially low interest rates that encouraged wild speculative borrowing, and Fannie Mae and Freddie Mac, those federal government garbage cans, used taxpayer dollars to buy all the bad loans the imprudent lenders could sell them. This, too, encouraged wild and speculative loans to people who could not afford to repay them.

But I write today not to rehash old arguments. Regrettably, the government today — the welfare and warfare states in which we Americans now live — is comfortably in the hands of progressives. With the exception of the Goldwater and early Reagan years, the leadership of both major political parties has been dominated by progressives — heavy progressives in the Democratic Party and light progressives in the Republican Party — since World War II. These politicians are disciples of Woodrow Wilson and Theodore Roosevelt, two presidents who turned the Constitution on its head.

James Madison stated that he wrote the Constitution conscious of the need to restrain the federal government — to limit it to the specific areas of governmental authority set forth in the Constitution and to guarantee areas free from all government regulation. Wilson and TR viewed the Constitution as liberating the federal government to do whatever its leadership wished, except when the Constitution expressly prohibits the wished-for behavior.

When it comes to understanding the powers of the federal government, Geithner is in the Wilson and TR camp. Those of us who believe in maximum individual liberty are in the Madison camp. Yet, Geithner tipped his hand a bit earlier this week in a new memoir, and that tip caught the public's attention.

The tip revealed that in 2009, shortly before his first round of interviews as Treasury secretary on the Sunday morning television network talk shows, Geithner endured a prep session administered to him by Dan Pfeiffer, then the senior adviser to Obama. Pfeiffer instructed Geithner to suggest to the American public that Social Security is operating in the black and thus is not a contributing cause of the ballooning federal deficit. He stated that the president needed that message to go out to his base as a "dog whistle to the left" — meaning a signal to the president's political base, the truth be damned.

Did Pfeiffer ask Geithner to lie? The secretary apparently thought so, even though the government's fuzzy math can make red ink look black. Whatever the truth, Geithner's version is that both he and Pfeiffer believed the ink was red, and when Pfeiffer asked him to deceive the public by claiming it was black, he declined.

This requested deception is telling. This is not spin. Spin is the artful use of words so that the speaker needn't lie. Geithner believes he was being asked to tell a lie. Can the government morally remain silent to preserve human freedom? Of course it can. Can it deceive by lying to the public on a material matter? If it does, it will shatter the social contract it has with the people, and the officials who lie risk becoming a law unto themselves, because after they are caught, no one will believe them.

The Geithner allegations bring to sharper focus the litany of Obama administration lies. The president and his folks lied about Obamacare ("You can keep your doctor and your insurance," the president proclaimed incessantly). They lied about the NSA spying ("No, sir," Gen. James Clapper replied when asked before Congress whether the feds were engaged in massive government spying on innocent Americans). They lied about Benghazi ("It was a spontaneous eruption over an American film," said former UN Ambassador Susan Rice). The president even lied about lying ("Transparency and the rule of law will be the touchstones of this presidency").

Can government officials legally lie? Regrettably, yes. The courts have ruled that the remedy for government lying is to vote it out of office, even when it prosecutes people for harmlessly doing what it has done to shatter its bonds with us. So, why were Roger Clemens and Martha Stewart prosecuted for petty lies about private matters that affected no one, and Clapper and Rice, who attempted to lull the country into a false sense of comfort, not prosecuted?

Perhaps because the president needed some dog whistles to the left, and Clapper and Rice provided them.

[philunderwood]

No Place To Hide

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

With heart-pounding suspense, John le Carre-like intrigue and Jeffersonian fidelity to the principles of human freedom, Glenn Greenwald has just published "No Place to Hide." The book, which reads like a thriller, is Greenwald's story of his nonstop two weeks of work in May and June of 2013 in Hong Kong with former CIA agent and NSA contractor-turned-whistleblower Edward Snowden. Greenwald was the point person who coordinated the public release of the 1.7 million pages of NSA documents that Snowden took with him in order to prove definitively that the federal government is spying on all of us all the time.
The revelations constituted for Greenwald the scoop of the century; for Snowden, the exposure of massive government violations of basic constitutional principles by his former bosses; for the NSA and the Bush and Obama administrations, the revelation of criminal wrongdoing orchestrated by two presidents themselves; and for the American public, a painful realization that the Constitution is only as valuable a restraint on the government as is the fidelity to uphold it of those in whose hands we have reposed it for safekeeping. As Greenwald makes clear, it is not in good hands.

"No Place to Hide" not only tells of Snowden's initially frustrating and anonymous efforts to reach out to Greenwald and the others; it not only carefully explains the insatiable appetite of the NSA to learn everything about everyone ("Collect it all" was a continuously posted NSA motto); it is also a morality tale about the personal courage required of Snowden and Greenwald and his colleagues to expose government wrongdoing and the risk to their lives, liberties and properties in doing so.

In the midst of one of their endless Hong Kong hotel meetings, Snowden told the journalists that the local CIA station employed agents trained to kill; and it was just a few blocks away. Then The Guardian's lawyers informed Greenwald that the Bush and Obama administrations had not hesitated to use the Espionage Act of 1917 — a World War I-era relic, still on the books, employed to chill, stifle, suppress and ultimately punish free speech — to attempt to lock up journalists even when they revealed the truth. At this point in my reading the book on Memorial Day, I noticed that my pulse was racing, even though I obviously knew the outcome.

The road to the outcome began about a year ago when Greenwald received email messages from an anonymous yet persistent and intellectually intriguing source. The source demonstrated such a superb command of the Internet, such a patient understanding of Greenwald's need for a basic education in the craft of digital spying, such a Jeffersonian understanding of the constitutional role of government in our lives, and so enticed Greenwald and his editors at The Guardian that, sight unseen, they traveled to Hong Kong to see whether the source possessed the documentary evidence he claimed to have of the most massive and sophisticated American government spying upon innocents in our history. He did.

Greenwald skillfully uses NSA documents to demonstrate that the highest government officials to discuss this spying in public — President Bush, President Obama, Bush Attorney General Alberto Gonzales, Director of National Intelligence James Clapper, former NSA boss Gen. Keith Alexander — all lied to the American public, (in the case of Clapper and Alexander, they probably did so criminally, as they were testifying to Congress), and they engaged in a conspiracy to violate the constitutionally protected rights to privacy of every American. After initially denying all this, then disparaging Snowden, then questioning his loyalty, then questioning his sanity, the government reluctantly admitted to all that Snowden revealed. How could it not? Snowden's revelations consist entirely of the NSA's own documents, many of which are reproduced in Greenwald's book.
The government has argued that when it engages in all this spying, it is looking for a needle in a haystack. It claims it can only keep us safe if it knows all and sees all. Yet, such an argument cannot be made with intellectual honesty by anyone who has sworn to uphold the Constitution.

The Constitution was written to keep the government off of the people's backs. The Constitution protects the right to be left alone and the right to be different. The Constitution presupposes the existence of natural rights and areas of human endeavor that are insulated from government knowledge and immune to government regulation, except in the most carefully prescribed circumstances. Those circumstances require that probable cause of crime be possessed by the government about identifiable persons and demonstrated to a neutral judge before the government may engage in any surveillance of that person — and all those NSA conspirators and all their judicial facilitators know this.
And what has Congress done in response to all this indiscriminate spying — spying that we now know is done upon members of Congress themselves? The Senate has done nothing, yet. The House passed legislation last week called the USA Freedom Act. This deceptively entitled nonsense so muddies the legal waters with ambiguous language that if enacted into law, the bill actually would strengthen the ability of the NSA to spy on all of us all the time. Is it any surprise that Obama and the NSA leadership support these so-called reforms?
The duty of government is to keep us free and to keep our freedoms safe. If it fails to protect freedom, it should be replaced. If it continues to spy on all of us all the time, then Greenwald's title — taken from a warning issued by the late Sen. Frank Church in the pre-Internet era — will have come to pass. We will have no place to hide and no freedoms left to exercise without the government's approval.

[philunderwood]

Beware a Beneficent Government
By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

The president is an ardent progressive. This dastardly philosophy of government was brought into the American mainstream 100 years ago by a Republican, Theodore Roosevelt, and a Democrat, Woodrow Wilson. Its guiding principle is the belief that government — not individuals — is the chief engine of human progress. If that means government tearing down rich persons to help poor persons, if that means the massive redistribution of wealth, if it means federal regulation of every conceivable occupation or productive endeavor, if it means fighting an unjust war, progressives are for it.

Before the progressives, the dominant political thinkers in America were Madisonians. James Madison, who kept the notes at the Constitutional Convention in Philadelphia in 1787 — notes that eventually formed much of the language of the Constitution — made clear what the purposes of the Constitution were: to prescribe discrete areas of human endeavor in which the new federal government could legislate; to set forth open-ended areas of human behavior in which no government could legislate; and to leave the remaining areas of governmental endeavor in the hands of the states. The areas delegated to the federal government are only 17 in number and generally are referred to as federal powers. The areas in which no government may regulate are infinite and generally are referred to as natural rights.
The progressives have turned this philosophy on its head. TR and Wilson believed that the federal government could regulate any behavior, right any wrong, tax any event and curtail any freedom, subject only to the express prohibitions in the Constitution itself. This view of American government not only contradicts Madison, but it also contradicts the language of the Constitution itself, particularly the Ninth and Tenth Amendments, which state in writing what Madison said many times throughout his life.

President Obama, most congressional Democrats and many congressional Republicans are ardent progressives. They view Congress as a general legislature with no limits to its powers — and they mean no limits. For example, in an area clearly beyond congressional reach, such as in-state highway speed limits, the progressives found a way to extend their reach. They offered money to the states to repave their highways, with the condition that the states adhere to federally prescribed speed limits (only South Dakota declined). Once the courts gave their imprimatur to this assault on the Constitution, the feds realized that by spending taxpayer dollars — by bribing the states — they could extend their regulatory tentacles to any extra-constitutional area they chose.

Progressivism's adherents finance the government by borrowing or by heavily taxing only the rich, both of which are sold as being painless to most voters. Yet, the former merely delays the due date of bills until tomorrow for goodies consumed today; the latter takes cash out of the free market today, where it could contribute to growth and jobs tomorrow, and puts it into the hands of the mindset that runs the Post Office and the Department of Veterans Affairs.

Progressives hate the states because they can be laboratories of less government. They love central government and all of its creations, such as the cash-printing Federal Reserve, the wealth-stealing progressive income tax, and the concept of a federal safety net for all persons. None of this, except the income tax (which Wilson promised would not exceed 3 percent of adjusted gross income), is authorized by the Constitution.

Yet today, we are witnessing a government that is beyond ideologically progressive. Does Obama understand that progressive ideas have consequences and that governmental behavior often has unintended consequences? It would appear not, as his long train of incompetence and indifference, grounded in progressive thought, keeps picking up speed. It is crushing human freedom, destroying human wealth and even taking human lives.

Under his presidency, the government saddled us all with a three-sizes-fits-all version of compulsory health care (which caused more than five million persons to lose their coverage and their doctors); it has been spying on all Americans all the time (and we sleepily permit it to do so); it allowed our ambassador in Libya to be murdered (after it destroyed the lawful government there); it told illegal aliens they need not worry about deportation (and thus encouraged the immigration of hundreds of thousands more — even unaccompanied children — to our shores); it neglected veterans to the point of death in government hospitals (demonstrating conclusively that the feds cannot deliver health care); it released assets material to terrorist organizations into the theater of war in the Middle East (ostensibly in a prisoner swap to save a weird military bird who once embraced his captors); it has claimed the power to kill Americans it views as a threat to others and yet too troublesome to arrest and bring to trial (all the while claiming it has a secret reading of the Constitution and American law that somehow justifies this); and it has added $6 trillion to government debt (with no plans to repay it).

What's going on? The modern presidency is blinded by a conceit that says it can do no wrong. This is partially the result of the passage of power from the states to the feds and from Congress to the president and partially the fault of a president who relishes telling us all how to live. In Obama's hands, all this power produces the vast unhappiness and government recklessness we now see every day.

The same Madison whom Obama rejects warned 200 years ago against the Obama mindset: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

[philunderwood]

Another Pointless War?

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

As we watch the collapsing government in Baghdad surrounded by a highly disciplined and serious force of Sunni-oriented fighters that has taken control of the most populous third of the country, we must, in John Adams' words, resist the temptation to slay the world's monsters. This time around, the monsters are the Sunni — who ran the government of Iraq in the Saddam Hussein years and who are the ancient and persistent enemy of the Shia, who run the government today.

The political and military force that is aiming at Iraq's capital calls itself the Islamic State of Iraq and Syria (ISIS). Its fighting force consists of about 8,000 men, yet it has marched through Iraq quickly. Last week, as ISIS forces approached the capital, a half-million Iraqi civilians got out of their way and tens of thousands of Iraqi security forces dropped their American military gear and Iraqi military uniforms and fled. The Iraqi army — which the U.S. decimated 10 years ago — cannot defend the current Iraqi government, which is as corrupt, authoritarian, anti-democratic and untrustworthy as Saddam's was, yet far less competent.

There is a lesson in this, and it reveals the power of religious fanaticism when resisted by unprincipled political force. ISIS fighters are motivated by a hatred of American invaders and their Iraqi defenders and an embrace of fundamental Sharia principles, which are anathema to Judeo-Christian principles. These ISIS fighters truly are monsters — they have crucified and decapitated deserters, traitors, captives, recalcitrants, Christians and Jews —_ and many Iraqi soldiers would rather join or walk away from them than resist them. The U.S.-trained Iraqi soldiers by and large view themselves as defending a temporary and inconsequential government. The ISIS fighters view themselves as being on a triumphal crusade.

Complicating this is the affiliation that many of the political forces in ISIS have with the rebels fighting against President Bashar al-Assad of Syria. And adding to the politics-makes-strange-bedfellows aura of this mess is the offer of the Quds fighters from Iran's Revolutionary Guard — which the State Department considers to be a terrorist organization — to help defend Baghdad, relying on American air power to assist it. It is almost inconceivable that we could fight side-by-side, or bombs protecting boots, with the aspect of the government of Iran that both President George W. Bush and President Barack Obama have characterized as anathema to U.S. interests, and that has sworn to destroy Israel.

Hence, Obama's dilemma is daunting. He is on record as saying that the war in Iraq was "dumb"; that the government there is secure and its forces are well-trained; that the rebels fighting Assad are freedom fighters who deserve American military support; and that the American troops he brought home from Iraq are not returning on his watch.

Should he send troops back to Iraq to defend the government we installed when we toppled Saddam? _Should American lives and tax dollars be spent in another pointless effort to bring democracy to a culture that has persistently rejected it? Should we take sides using our military in what is essentially an ancient religious civil war? Is the national security of the U.S. even remotely affected by the outcome of the current Iraqi civil war?

Since Bush persuaded Congress and the American people in 2003 that an appropriate response to 9/11 somehow was an invasion of Iraq, that country's stability has been undermined by the U.S., and it is now ripe for the sectarian violence that is devouring it. The stated purpose of the Iraq war was to root out weapons of mass destruction, which we now know did not exist there. Then the stated purpose became regime change, because Saddam tried to kill the elder President Bush. The other stated purpose of the war was our thoughtless embrace of the fanciful Bush doctrine, which was basically the rebranding of the discredited Wilsonian nonsense that we can use force to spread democracy.

That, too, failed profoundly. In the process, 5,000 Americans died; 45,000 Americans were injured; 650,000 Iraqis died; 2,000,000 Iraqis fled the country; a half-trillion dollars in Iraqi assets were destroyed; and we borrowed a trillion dollars to invade and occupy Iraq (and another trillion to invade and occupy Afghanistan), which we still owe to the people who loaned it to us. Al-Qaida, which was not present in Iraq before 2003, is now openly there along with ISIS, its sister organization that is about to conquer the most politically important parts of the country.

America is no safer because of the Iraq war, but we are weaker. Our relationships among the people in the Middle East are far less sanguine, we have planted three generations' worth of hatred, distrust, and lust for vengeance among Middle Eastern youth, and we have a crushing war debt. We also have American cash and military hardware, including expensive and lethal Stinger missiles, now in the hands of ISIS.

We are witnessing the contemporary incarnation of the old Sunni/Shia/Kurd rivalry that has persisted in what is today called Iraq for 1,000 years, and will persist until the country returns to its pre-modern sectarian borders and each ancient group has its own land.
There is no bona fide American national security interest in jeopardy because of the persistent Iraqi civil war, and we have no lawful right to choose a side and assist it militarily. But the American military-industrial-neocon complex wants more war. We must resist them. We should gather all Americans in Iraq, take what moveable wealth is ours and come home — and stop searching the world for monsters to destroy, as that will end up destroying us.

[philunderwood]

From an inherited tyrant to an elected one
By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

After a brief holiday last week, I returned to some heavy reading courtesy of the federal government. Some of the materials that I read were gratifying, and one was terrifying.

In one week, the Supreme Court told the police that if they want to examine the contents of our cellphones, whether at traffic stops or serious crime scenes, they need to get a warrant. The court told small-business owners that they needn't pay for government-mandated insurance policies that provide for abortions for their employees, because the government is without authority to command them to do so. It told the president that he cannot wait until Saturday morning, when the Senate is not in session, to appoint high-level officials whose jobs require Senate confirmation, and then claim that they do not require Senate confirmation because the Senate was in recess. And it told selfless parents who stay home to care for their disabled children that the government may not force them to join health-care labor unions and pay union dues against their will.

Buried in these opinions was a legal memorandum sent to the president on July 16, 2010, nearly four years ago, and released last week, after two years of litigation aimed at obtaining it.

The Obama administration had successfully resisted the efforts of The New York Times and others to induce a judge to order the release of the memo by claiming that it contained state secrets. The judge who reviewed the memo concluded that it was merely a legal opinion, and yet she referred to herself as being in "Alice in Wonderland": The laws are public, and the judicial opinions interpreting them are public, so how could a legal opinion be secret? Notwithstanding her dilemma, she accepted the government's absurd claims, and the Times appealed.

Then the government shot itself in the foot when it surreptitiously released a portion of its secret memo to NBC News. This infuriated the panel of federal appellate judges hearing the Times' appeal, and they ordered the entire memo released. Either it is secret or it is not, the court thundered — and the government, which is bound by the transparency commanded by the First Amendment, cannot pick and choose which parts of its work to reveal to its favorite reporters and which to conceal from the rest of us.

Last week, the administration released the memo. It consists of 40 highly blacked-out pages, the conclusion of which is that the president can order the CIA to kill Americans who are present in foreign countries and who, in the opinion of high-level government officials, pose a threat to Americans and may be difficult to arrest.

The memorandum acknowledges that it is unprecedented in its scope and novel in its conclusion, and requires predicting what courts will do if they review it. Lawyers often predict for their clients what courts will do, and thus from their predictions, extrapolate advice for their clients. But history has recorded no memo before this one that has advised a president in writing that he is free to kill an American who is not engaging in violence. The logic of the memorandum states that Americans overseas who join organizations that promote acts of terror are the equivalent of enemy soldiers in uniform in wartime. It follows, the memo argues, that because Congress has authorized the president to kill foreign terrorists when they are in foreign lands, he can kill Americans there, as well.

Conveniently, the memorandum never mentions the Fifth Amendment to the Constitution, which famously commands that if the government wants the life, liberty or property of any person, it can only do so via due process. Due process requires a jury trial with its attendant constitutional protections. The only recognized exceptions to this requirement are the individual and collective right to immediate self-defense. Since natural rights trump all positive law, a cop can kill a bank robber who is shooting at him, and soldiers can kill enemy soldiers who are about to shoot at them. At the root of the recognized exceptions to the requirement of due process is the active violence of the perpetrator, such that due process is impossible and such that the threat to life is clear, present and immediate.
The persons killed pursuant to this secret memo were all Americans. One, Anwar al-Awlaki, the stated target of the memo, was not engaged in combat or armed or on a battlefield when he was killed; he did not wear the uniform of an enemy army, and he was not engaged in active violence at the time of his murder. He was in a car in the desert in Yemen driving to meet his 16-year-old American son. He had been under continuous surveillance by 12 American and four Yemeni intelligence agents for the 48 hours preceding his murder by a CIA drone. The drone that killed him was soon followed by drones that killed his son and two other Americans.

This week marks the anniversary of America's birth as a free nation, when we fought a war against a tyrant and seceded from his kingdom. We thought we had banished tyranny from our shores. We thought we had ratified a Constitution that would compel the government to respect our natural rights. We thought we had established a society based upon the rule of law.

We were wrong. We have gone from an inherited tyrant to an elected one. I have never heard President Obama say this, but it seems logical that if he thinks he can lawfully kill Americans abroad, he also thinks he can kill us here.

Happy Fourth of July.

[philunderwood]

Spying on Innocents

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

In what appears to be one of Edward Snowden's final revelations, the former CIA and NSA agent has demonstrated conclusively that the National Security Agency has collected and analyzed the contents of emails, text messages, and mobile and landline telephone calls from nine non-targeted U.S. residents for every one U.S. resident it has targeted.

This puts the lie to the government's claims that it has only collected metadata — identifying markers such as phone numbers and email addresses — and not content from unsuspecting and unsuspected Americans. It puts the lie to the government's claims that it has studiously avoided prying into the private lives of Americans, in whom it has no intelligence-related or lawful interest. And this puts the lie to the government's contentions and the opinions of judges of the secret Foreign Intelligence Surveillance Court that the NSA's spying is somehow lawful, constitutional and helpful.
We now know that the government has failed effectively to refute the Snowden claims that it has collected and maintained for future access massive amounts of personal materials about nearly all people in America since 2009. This includes the metadata and content of nearly every telephone call, email and text message made, sent or received in the U.S., as well as nearly every credit card bill, utility bill and monthly bank statement of nearly every person in the U.S.

This was accomplished through the issuance of general warrants by FISA court judges. General warrants do not particularly describe the place to be searched or the person or thing to be seized as the Constitution requires. General warrants authorize the bearer to use the power of government to search wherever he wishes. The use by British troops of general warrants was a principal motivation for the American Revolution, and the very purpose and literal wording of the Fourth Amendment was to outlaw and prohibit them.

Nevertheless, in their lust to appear muscular in our constitutionally sad post-9/11 era, politicians from both major political parties have defied the plain meaning and universally accepted history of the right to privacy and reverted to these odious instruments so condemned by the nation's founders and the Constitution's framers.

The recent Snowden revelations showed that about 900,000 innocent U.S. residents — including President Barack Obama himself — were subjected to heavy NSA scrutiny. This was done by NSA agents who knew that the subjects of their scrutiny were not the targets of their investigation.
How could that happen? It happened because the FISA court meets in secret, where the NSA has no opposition and the court has no transparency. This volatile mix has resulted in that court's granting well over 99 percent of NSA applications, including the "hop" rule implicated in the scrutiny of innocent Americans. In NSA-speak, a hop is a jump from one telephone conversation to another using a common phone.

In the sterile, isolated and secret environment of the FISA court — where even the judges cannot keep records of their own decisions — NSA agents and lawyers have persuaded judges to permit spying on people who are six hops from a target. Thus, by way of illustration, if A is a target and speaks with B, the NSA can listen to all of B's conversations, even those not with A. The leap from A to B is one hop, and the NSA gets six, so it can listen to any C who has spoken to B, any D who has spoken to any C, any E who has spoken to any D, any F who has spoken to any E and any G who has spoken to any F.

The 900,000 innocent U.S. residents whose private and personal lives have been subjected to NSA scrutiny — including the examination of their photographs, intimate personal behavior, medical and financial needs — consist of those who are within six hops from a target; in the illustration above, that would be every B, C, D, E, F and G whom the NSA can find. According to Snowden, there is no effort made by the NSA to minimize the scrutiny of those who are in the B-G category — even though the chances that any of them are in cahoots with A are extremely remote, particularly once the NSA gets beyond B.

But remoteness does not trouble the NSA, and neither does the Constitution. Remoteness is a serious constitutional and practical problem. It violates the rights of known innocents, as the NSA has no constitutional or lawful authority to spy on any non-targets and FISA court judges have no power to authorize that spying. It also consumes the time and resources of NSA agents, whose job it is to find terror plots.
Is it any wonder that the Boston Marathon bombers discussed their plans with friends using their cellphones and the NSA missed it? Is it any wonder that when Gen. Keith Alexander, who ran the NSA for five years, was asked under oath how many plots his agents had uncovered with their spying on all Americans, he replied 57 and then the next day changed that reply to three and then was unable or unwilling to identify the supposed three? Is it any wonder that the two non-FISA court federal judges who scrutinized all this both found that it has uncovered no plots?

When the government sees or hears all, it knows all. And when the people tolerate a government that knows all, they will be afraid to be themselves. And the joy of being and expressing oneself is the very reason we have a Constitution designed to restrain government.

James Madison warned that the loss of liberty rarely happens in one great event but rather happens gradually, over time, resulting from the actions of government officials who claim to be fortifying security. He practically predicted today's events. The violations of our rights are obvious, undenied and undeniable. Yet what Madison probably feared most, he did not articulate: Once lost, liberty is lost forever.

[philunderwood]

Chilling

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

"Chilling" is the word lawyers use to describe governmental behavior that does not directly interfere with constitutionally protected freedoms, but rather tends to deter folks from exercising them. Classic examples of "chilling" occurred in the 1970s, when FBI agents and U.S. Army soldiers, in business suits with badges displayed or in full uniform, showed up at anti-war rallies and proceeded to photograph and tape record protesters. When an umbrella group of protesters sued the government, the Supreme Court dismissed the case, ruling that the protesters lacked standing — meaning, because they could not show that they were actually harmed, they could not invoke the federal courts for redress.

Yet, they were harmed, and the government knew it. Years after he died, longtime FBI boss J. Edgar Hoover was quoted boasting of the success of this program. The harm existed in the pause or second thoughts that protesters gave to their contemplated behavior because they knew the feds would be in their faces — figuratively and literally. The government's goal, and its limited success, was to deter dissent without actually interfering with it. Even the government recognized that physical interference with and legal prosecutions of pure speech are prohibited by the First Amendment. Eventually, when this was exposed as part of a huge government plot to stifle dissent, known as COINTELPRO, the government stopped doing it.

Until now.

Now, the government fears the verbal slings and arrows of dissenters, even as the means for promulgating one's criticisms of the government in general and of President Obama in particular have been refined and enhanced far beyond those available to the critics of the government in the 1970s.

So, what has the Obama administration done to stifle, or chill, the words of its detractors? For starters, it has subpoenaed the emails and home telephone records of journalists who have either challenged it or exposed its dark secrets. Among those journalists are James Risen of The New York Times and my colleague and friend James Rosen of Fox News. This is more personal than the NSA spying on everyone, because a subpoena is an announcement that a specific person's words or effects have been targeted by the government, and that person continues to remain in the government's crosshairs until it decides to let go.

This necessitates hiring legal counsel and paying legal fees. Yet, the targeting of Risen and Rosen was not because the feds alleged that they broke the law — there were no such allegations. Rather, the feds wanted to see their sources and their means of acquiring information. What journalist could perform his work with the feds watching? The reason we have a First Amendment is to assure that no journalist would need to endure that.

Two weeks ago, a notorious pot stirrer in Norfolk, Neb., built a mock outhouse, put it on a truck and drove the truck with permission in a local Fourth of July parade. In front of the outhouse, he placed a mannequin that he claimed looked like himself, and on the outhouse, he posted a sign that stated: "Obama Presidential Library."

Some thought this was crude, and some thought it was funny; yet it is fully protected speech. It is protected because satire and opinion about public figures are absolutely protected, as well as is all criticism of the government. Yet, the Department of Justice has sent a team to investigate this event because a local official called it racist. Such an allegation by a public official and such a federal investigation are chilling. The reason we have a First Amendment is to ensure that the government stays out of investigating speech.

And just last week, Attorney General Eric Holder, while in London, opined that much of the criticism of Obama is based on race — meaning that if Obama were fully white, his critics would be silent. This is highly inflammatory, grossly misleading, patently without evidential support and, yet again, chilling. Tagging someone as a racist is the political equivalent of applying paint that won't come off. Were the Democrats who criticized Attorney General Alberto Gonzales or Secretary of State Condoleezza Rice racists? Is it appropriate for government officials to frighten people into silence by giving them pause before they speak, during which they basically ask themselves whether the criticism they are about to hurl is worth the pain the government will soon inflict in retaliation?

The whole purpose of the First Amendment is to permit, encourage and even foment open, wide, robust debate about the policies and personnel of the government. That amendment presumes that individuals — not the government — will decide what language to read and hear. Because of that amendment, the marketplace of ideas — not the government — will determine which criticisms will sink in and sting and which will fall by the wayside and be forgotten.

Surely, government officials can use words to defend themselves; in fact, one would hope they would. Yet, when the people fear exercising their expressive liberties because of how the governmental targets they criticize might use the power of the government to stifle them, we are no longer free.

Expressing ideas, no matter how bold or brazen, is the personal exercise of a natural right that the government in a free society is powerless to touch, directly or indirectly. Yet, when the government succeeds in diminishing public discourse so that it only contains words and ideas of which the government approves, it will have succeeded in establishing tyranny. This tyranny — if it comes — will not come about overnight. It will begin in baby steps and triumph before we know it.
Yet we do know that it already has begun.

[philunderwood]

Is the President Incompetent or Lawless?

By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

It has been well established under the Constitution and throughout our history that the president's job as the chief federal law enforcement officer permits him to put his ideological stamp on the nature of the work done by the executive branch. The courts have characterized this stamp as "discretion."

Thus when exercising their discretion, some presidents veer toward authority, others toward freedom. John Adams prosecuted a congressman whose criticism brought him into disrepute, an act protected by the First Amendment yet punishable under the Alien and Sedition Acts, and Thomas Jefferson declined to enforce the Acts because they punished speech, and pardoned all those convicted. Jimmy Carter asserted vast federal regulatory authority over the trucking and airline industries, and Ronald Reagan undid nearly all of it.

The president has discretion to adapt law enforcement to the needs of the times and to his reading of the wishes of the American people. Yet that discretion has a serious and mandatory guiding light — namely, that the president will do so faithfully.

The word "faithfully" appears in the oath of office that is administered to every president. The reason for its use is to assure Americans that their wishes for government behavior, as manifested in written law, would be carried out even if the president personally disagrees with the laws he swore to enforce.

This has not always worked as planned. President George W. Bush once famously signed into law a statute prohibiting federal agents without a search warrant from reading mail sent to persons other than themselves — and as he was literally holding his pen, he stated he had no intention of enforcing it. That was a rejection of his presidential duties and a violation of his oath.

But today, President Obama has taken the concept of discretion and so distorted it, and has taken the obligation of faithful enforcement and so rejected it, that his job as chief law enforcer has become one of incompetent madness or chief lawbreaker. Time after time, in areas as disparate as civil liberties, immigration, foreign affairs and health care, the president has demonstrated a propensity for rejecting his oath and doing damage to our fabric of liberty that cannot easily be undone by a successor.

Item: He has permitted unconstitutional and unbridled spying on all Americans all the time, and he has dispatched his agents to lie and mislead the American people and their elected representatives in Congress about it. This has resulted in a federal culture in which the supposed servants of the people have become our permanent and intimate monitors and squealers on what they observe.

Item: He has permitted illegal immigrants to remain here and continue to break the law, and he has instructed them on how to get away with it. His encouragement has resulted in the flood of tens of thousands of foreign unaccompanied children being pushed across our borders. This has resulted in culture shock to children now used as political pawns, the impairment of their lives and the imposition of grievous financial burdens upon local and state governments.

Item: His agents fomented a revolution in Libya that resulted in the murder of that country's leader, the killing of the U.S. ambassador and the evacuation of the U.S. embassy. His agents fomented a revolution in Ukraine that resulted in a Russian invasion, an active insurgency, sham elections and the killing of hundreds of innocent passengers flying on a commercial airliner.

Item: He has dispatched CIA agents to fight undeclared and secret wars in Yemen and in Pakistan, and he has dispatched unmanned drones to kill innocents there. He has boasted that some secret reading of public positive law permits him to kill whomever he wishes, even Americans and their children.

Item: His State Department has treated Hamas — a gang of ruthless murderers whose stated purpose is the destruction of Israel — as if it were a legitimate state deserving of diplomatic niceties, and this has encouraged Hamas to persist in attacking our only serious ally in the Middle East.

Item: His Department of Veterans Affairs has so neglected patients in government hospitals that many of them died, and it even destroyed records to hide its misdeeds. His Internal Revenue Service has enforced the law more heavily against his political opponents than against his friends, and it has destroyed government computer records in order to hide its misdeeds.

Item: He has relieved his friends of the burdens of timely compliance with Obamacare, and he has burdened his enemies with tortured interpretations of that law — even interpretations that were rejected by the very Congress that enacted the law and interpretations that were invalidated by the Supreme Court.

He has done all these things with a cool indifference, and he has threatened to continue to do so until the pressure builds on his political opponents to see things his way.

The Framers could not have intended a president so devoid of fidelity to the rule of law that it is nearly impossible to distinguish between incompetence and lawlessness — and I am not sure which is worse. Archbishop Fulton Sheen often said he'd prefer to deal with a smart devil than a stupid one.

But the Framers did give us a remedy, and the remedy is not a frivolous lawsuit that the federal courts will no doubt reject as a political stunt. The remedy is removal from office. This is not to be undertaken lightly, as was the case when this remedy was last used. But it is the remaining constitutional means to save the freedoms the Constitution was intended to guarantee.

The choice is between two more years of government by decree or two years of prosecution. It is a choice the president has imposed upon us all.

[philunderwood]

The smoking gun of Obama's lawlessness
By Judge Andrew P. Napolitano

www.JewishWorldReview.com |

In some respects, the recent admission by CIA Director John Brennan that his agents and his lawyers have been spying on the senators whose job it is to monitor the agency should come as no surprise. The agency's job is to steal and keep secrets, and implicit in those tasks, Brennan would no doubt argue, is lying.
Yet in another respect, this may very well be a smoking gun in the now substantial case against President Barack Obama that alleges that much of his official behavior has manifested lawlessness and incompetence. It is hard to believe that the president did not know about this but not hard to believe he would look the other way.

About four months ago, California Democrat Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, went to the Senate floor and accused the CIA of committing torture during the presidency of George W. Bush and of spying on the committee that she chairs as it was examining records of that torture. Brennan responded by denying both charges and leveling his own — that investigators for the Senate Intelligence Committee had exceeded their lawful access to CIA records and that that constituted spying on the CIA.

Brennan even got his predecessor, George Tenet, under whose watch Feinstein claimed the torture had occurred and the attacks of 9/11 took place, to deny vehemently that his agents had committed torture. With this mutual finger-pointing, both the CIA and the Senate Intelligence Committee reported each other to the Department of Justice, which promptly punted.
How did all this come about? Under federal law, the CIA gets to do what the president permits and authorizes only when it reports its deeds and misdeeds truthfully to two congressional committees, one of which is the Senate Intelligence Committee. (The other is the House Permanent Select Committee on Intelligence.) None of this is constitutional, of course, seeing as the CIA fights secret wars; the Constitution mandates that only Congress can declare war, and Congress cannot delegate its constitutional authority to committees. This system of secret government is so secret that 90 percent of our elected congressional representatives are kept ignorant of it.

But last week, on a sleepy Friday afternoon in the middle of the summer, Obama admitted that the CIA had tortured people, and shortly thereafter, Brennan admitted that the CIA had spied on the Senate. Then the president said he still has confidence in Brennan.

This is approaching a serious constitutional confrontation between the president and Congress. Can the president's agents lawfully spy on Congress? Of course not. Can the CIA lie to Congress with impunity? Only if Congress and the Department of Justice let it do so.

Yet this administration thrives on lies. Brennan's boss, James Clapper, who is the director of national intelligence, lied to the same Senate Intelligence Committee when he denied that the National Security Agency is collecting massive amounts of personal data on hundreds of millions of Americans. And now we have the CIA director lying in secret to his congressional monitors, who were formerly his congressional protectors, and a Justice Department unwilling to do its legal duty by enforcing the law.

Do you remember former Yankee great Roger Clemens? He was indicted and tried twice for lying to a congressional committee about the contents of his urine. He was acquitted, yet this should tell you about the government's priorities. It is more interested in chastening a baseball player about a private matter than it is in being truthful to the American people about torture. It apparently thinks that government employment is a defense to lying.

So where does all this lead us? The president's agents have lied to Congress and have spied upon it. If Brennan did not know about this, he should be fired for incompetence and for failing to control his agents. If he did know about this, he should be indicted for lying to Congress, because he denied it at a time when he had a lawful obligation to be truthful, and he should be fired for his failure to communicate a violation of the Constitution to the president. If he did tell the president that his agents were about to spy on Congress and the president failed to stop it, the president has committed a serious violation of his oath to uphold the laws and violated the separation of powers by invading the privacy of a coequal branch of the government — and that is an impeachable offense.

So, what shall we do about this? House Speaker John Boehner will say, "Let's sue the president." That's a joke. How about subpoenaing the president to testify under oath and asking him what he knew and when he knew it? Now you're getting warmer. How about impeaching him and calling him as the first witness in his own impeachment trial? His Department of Justice has argued that the Fifth Amendment privilege against self-incrimination applies only in criminal cases. Now you're getting hot.
But wait. All this requires moral courage, righteous indignation and fidelity to the rule of law; and the Congress has none of those traits. In the post-9/11 world, Congress has become a potted plant, ready to give any president whatever he wants, lest it appear less than muscular in the face of whatever danger the president says is lurking in the dark. And presidents know that if the kitchen gets hot, all they need to do is foment a foreign crisis in the dark, and the country will unite behind them.

I am not so sure that unity behind the president will happen this time.

[philunderwood]

www.jewishworldreview.com/0914/napolitano091114.php3

Waging War

Judge Andrew P. Napolitano
By Judge Andrew P. Napolitano
Published Sept. 11, 2014

Read more at www.jewishworldreview.com/0914/napolitano091114.php3#Of3UtvvLeGUuiseC.99

James Madison is commonly referred to as the Father of the Constitution in large measure because, in the secrecy of the Constitutional Convention in Philadelphia in 1787, he kept the most complete set of notes. He also had a very keen mind and a modest demeanor and an uncanny ability to solidify consensus around basic principles that are woven into the Constitution.

After he wrote the Constitution and before he became Thomas Jefferson's secretary of state and eventually a two-term president, he was a congressman from Virginia. When he spoke on the floor of the House, the parts of the Constitution he was most adamant about restrained the president. Chief among those restraints, in Madison's view, was the delegation to Congress, and not to the president, of the power to wage war.

Madison knew that kings became tyrants through war. He fervently believed that by keeping the war-waging power in the hands of the president and the war-making power in the hands of Congress, the Constitution would serve as a bulwark against tyranny. He explained:

"Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. ... No nation could preserve its freedom in the midst of continual warfare."

Madison is instructive for us today as President Obama decides whether to ask the nation to go to war or to order hostilities on his own.

Under the War Powers Resolution (WPR), the president can deploy U.S. forces anywhere outside the U.S. for 180 days upon his written notifications of congressional leaders. He does not need a declaration of war to deploy forces for 180 days, yet he cannot deploy forces beyond that without express authorization from Congress.

Obama used the WPR as the legal basis for his air invasion of Libya in 2010. That resulted in the destruction of the government there, which the U.S. had supported with $1 billion annually since 2005 (we literally destroyed armaments that we had paid for), the death of Col. Gadhafi, whom President George W. Bush and British Prime Minister Tony Blair called a friend in the war on terror, the instability of the nation, the death of our ambassador, and the seizure by mobs of U.S. government-owned real estate. The president declined to use the WPR authority last year when he sought — and did not receive — express congressional authority to use military force to degrade the offensive weaponry of the Syrian military.

The WPR is a two-edged sword. Though the courts have never reviewed it, it is certainly unconstitutional, as the courts have consistently ruled that one branch of government cannot give away its principal constitutional powers to another. Congress surely cannot give its war-making power to the president any more than it can give it to the courts. So, the political question with respect to war remains: Who will take the heat for fighting a war against ISIS — the president via the WPR or Congress via the Constitution?

Yet, beyond the political question is the more profound question of who will enforce the Constitution. In addition to Madison's fears about foreign wars leading to domestic tyranny, there are profoundly practical reasons why war is a decision for Congress alone.

Here is where it gets dicey and inside the Beltway. Republicans want war because they see ISIS as a dreaded enemy and can use its televised barbarity to rally voters to their candidates. Democrats want war because they can use it to show the voters that they, too, can be muscular against terrorists. Yet, Republican leadership in the House is reluctant to permit the House to debate and vote on a resolution authorizing hostilities, because they can't agree on how to instruct the president to end the war.

But war often has surprise endings and unexpected human, geopolitical and financial consequences. A debate in Congress will air them. It will assure that the government considers all rational alternatives to war and that the nation is not pushed into a costly and bloody venture with its eyes shut. A congressional debate will compel a written national objective tied to American freedom. A prudent debate will also assure that there will be an end to hostilities determined by congressional consensus and not presidential fiat.

What should Congress do? It should declare once and for all that we will stay out of this ancient Muslim civil war of Shia versus Sunni. We have been on both sides of it. Each side is barbarous. In the 1980s, we helped the Sunni. Now we are helping the Shia. Last year, Obama offered to help ISIS by degrading its adversaries; now, he wants to degrade ISIS. We have slaughtered innocents and squandered fortunes in an effort to achieve temporary military victories that neither enhance our freedom nor fortify our safety. We will only have peace when we come home — when we cease military intervention in an area of the world not suited for democracy and in which we are essentially despised.

I suspect most Americans have had enough of war, and they understand that if the political class ignores Madison's warnings, it will do so at its peril.

[philunderwood]

www.jewishworldreview.com/0914/napolitano091814.php3

More Unlawful Presidential Killing

By Judge Andrew P. Napolitano

As the debate rages over whether the president needs congressional authorization for war prior to his deployment of the military to degrade or destroy ISIS, the terrorist organization that none of us had heard about until a few months ago, the nation has lost sight of the more fundamental issue of President Obama's infidelity to the rule of law.

On the lawfulness of his proposed war, the president has painted himself into a corner. Last year, he quite properly recognized that the Authorization for Use of Military Force (AUMF), a statute enacted by Congress in 2002 to permit President George W. Bush to use the military to track down, capture, degrade or kill all persons or organizations that planned the attacks of 9/11, cannot apply to organizations that did not exist at the time of 9/11, of which ISIS is one.

That leaves the president with two remaining alternatives. One is the War Powers Resolution (WPR), a statute enacted by Congress in 1973 to limit presidentially ordered military invasions absent congressional assent to 180 days or fewer. But the WPR is unconstitutional, as it consists of Congress giving away to the president express authority to declare war, which the Constitution delegates to Congress. The Supreme Court has prohibited such giveaways of core powers and responsibilities from one branch of the federal government to another.

Even if Obama decides to rely on the WPR, and expects that no federal judge will interfere with that decision, his military advisers have told him he cannot achieve his objective in 180 days. They also have told him he cannot achieve his objective by the use of air power alone.

The remaining mechanism for starting a war is to follow the Constitution by seeking a congressional declaration of war. But Obama has not yet asked for such a declaration. Why not? No doubt, he has two fears. One is that Congress will impose restrictions on the location and duration of hostilities, unlike the AUMF, which is open-ended. The other is that he will disaffect his loyal political base by doing what he promised he would never do: bring the country into another offensive war in the Middle East.

In 2008 and in 2012, Obama ran as a candidate and an incumbent determined to end American military involvement in the Middle East, not increase it. Hence his promise, by now made many times, that he will not introduce ground troops into this war. Apparently, just as when he bombed Libya into chaotic instability in 2010, he does not consider bombs an act of offensive warfare.

But he does consider the use of boots to be an act of war. When the president promises no ground troops, note the phrase he uses: "No boots on the ground." This is a term of art that apparently has different meanings to different folks.

There are already more than 1,000 pairs of American military boots on the ground in this effort to destroy ISIS. Yet, because they are not yet directly engaged in the use of violence in pursuit of ISIS fighters (they are training others to do so or finding targets to destroy by air), or because they are Special Forces and thus out of uniform (but no doubt armed and violent and wearing boots), the president feels he has a clear conscience when he says there are no boots on the ground.

When he says that, he means, "There is no one in an American military uniform shooting from the ground at an enemy target" — but there are military personnel in uniform on the ground, and there are military personnel out of uniform shooting ISIS fighters. Is this hair-splitting language consistent with the president's moral obligation to be truthful to us?

In another deceptive move, Obama announced on Monday that the operation against ISIS, whether authorized by Congress or not, will be directed by retired Marine Corps General John Allen. This is a novel use of government assets, as Allen is no longer a part of the Pentagon and thus not subject to the military chain of command. Apparently, the president does not trust his military advisers, whose advice he has repeatedly rejected, to run his war. Is the White House planning to run this war directly as LBJ did in Vietnam? Is the State Department? How can a civilian who is not the president command military troops?

On Monday of last week, the White House announced that in its pursuit of ISIS, the U.S. will go wherever it finds ISIS targets, and if ISIS hides in Syria and the government of Syria does not permit U.S. jets to use its airspace, the U.S. will attack Syria. That sounds like Russian President Vladimir Putin in the Ukraine.

Attacking Syria because its government denied the U.S. airspace would be an unprovoked and unlawful act of war that would probably provoke Putin. Congress rejected declaring war on Syria just a year ago. If it does so now, there would be no lawful or moral basis for such a declaration, as Syria is a sovereign country, lawfully entitled to control its airspace, that poses no present threat to American freedom or security. The U.S. can no more legally commandeer Syrian airspace than Syria can commandeer ours.

Something is amiss here. Last year the president wanted to help ISIS indirectly by degrading the Syrian military. Now he wants to help Syria indirectly by degrading ISIS, but only if Syria stays out of our way. And he is prepared to violate the Constitution, break the law and lie to the American people to achieve his purposes.

Why all the unlawfulness, when he could and should leave these disputants to their own devices and keep the American military at home for genuine defensive purposes?

[philunderwood]

Mistakes of the Past Are Back

By Judge Andrew P. Napolitano

Published Sept. 25, 2014

Read more at www.jewishworldreview.com/0914/napolitano092514.php3#hhAP0wcFw3vGwIpW.99

What if the American invasion of Iraq had nothing to do with weapons of mass destruction? What if whatever weapons of mass destruction Saddam Hussein once had were sold to him in the 1980s by American arms dealers with the express permission of the U.S. government? What if he no longer had them when the U.S. invaded? What if the principal reason for invading Iraq was to depose Hussein because he tried to kill President George H.W. Bush, whose son ordered the invasion?

What if another reason for the invasion of Iraq was to enable western-allied governments to control or receive oil from Iraq? What if the Bush administration lied to the American people, Congress, the U.N. and governments of other nations in order to persuade them to support the invasion? What if the Bush administration knew all along that Hussein posed no threat to the stability of the Middle East or the freedom or security of the U.S.? What if Hussein was, in fact, a stabilizing force in the Middle East?

What if the American invasion violated the moral precepts of the Just War, precepts accepted in Judeo-Christian teaching and culture for more than 500 years, and that have underpinned international law for more than 100 years?

What if the invasion killed 4,500 Americans and 650,000 Iraqis, and injured 40,000 Americans, displaced 2 million Iraqis and destroyed more than $100 billion in Iraqi property? What if that invasion, which cost more than one trillion borrowed U.S. dollars, degraded the Iraqi military?

What if the American invasion sent many members of the Iraqi military underground or into the arms of anti-government resistance fighters? What if the American invasion also produced a fierce resistance and determined will to expel the American invaders?

What if the Middle East has been the scene of a 1,000-year-old religious dispute between two branches of Islam: the Sunni and the Shia? What if under Hussein the Sunni persecuted the Shia and also persecuted a third group in that region, the Kurds? What if Hussein used the weapons of mass destruction that American arms dealers sold him to gas thousands of Kurds? What if the Shia now persecute the Sunni?

What if Iraq is not a country of people with common cultures and interests and generally accepted borders, but rather an amalgam of warring groups cobbled together by British and American diplomats? What if only a strongman like Hussein -- however evil and ill suited for government by Western standards -- can keep peace and stability in an artificial country like Iraq?

What if al-Qaida was not present in Iraq before America invaded? What if the American invasion drew al-Qaida fighters to Iraq from Africa and other parts of the Middle East? What if the American invasion produced a violent stew of resistance to and resentment of American-induced violence in Iraq?

What if that stew -- which has been known by different names, but is now called ISIS -- included not only fighters from all over the Middle East and Africa, but also from the current Iraqi military and from Hussein's military, which U.S. forces thought they had defeated or dispersed? What if many of those former Iraqi military forces brought their American-made and American-paid-for military equipment and their American military training with them into ISIS?

What if, in the 11 years since the U.S. invaded Iraq and in the 13 years since the U.S. invaded Afghanistan, American troops have been training new Iraqi and Afghan armies? What if during that time of training many of those U.S.-trained troops joined the ISIS resistance? What if the U.S.-trained troops that stayed in the Iraqi military are really a rag-tag band of second-rate soldiers who are unable to defend the Iraqi government against ISIS? What if President Obama's military advisers have told him this?

What if some of the training has taken place in the United States? What if some of those trainees left their instructors, fled a U.S. Army base and were at large in the U.S. with their weapons?

What if under the watch of the U.S.-trained Iraqi soldiers one-third to one-half of the landmass of Iraq has fallen to ISIS? What if ISIS -- though barbaric and ruthless and decidedly undemocratic -- has established governments in the lands it conquered? What if those governments -- though terrifying to those who would resist them, as Hussein was -- have financed schools and hospitals and operated as the only government in the land, as Hussein did? What if those governments are selling oil to finance themselves, as Hussein did?

What if the forces in the U.S. who believe the military is best when it is fighting are again beating the drums for war in Iraq? What if Obama's present plans are to arm and train moderate Syrian rebels and induce them to fight ISIS on the ground while the U.S. provides air cover? What if the U.S. really cannot tell the moderate Syrian fighters from the fanatical Syrian fighters? What if they are one and the same fighters, whose moderation or fanaticism changes with the politics and military needs of the moment?

What if American empire building and military adventurism and going about the world looking for monsters to slay have caused this mess? What if the American government refuses to recognize that? What if the United States is about to embark on the same thing all over again? What if all this has not made a single American freer or safer? What if all this has made the American government paranoid and the American people less free and poorer and more vulnerable?

What if the government here cannot recognize its failures? What if a people who cannot understand the mistakes of the past are doomed to repeat them? What do we do about it?

[philunderwood]

www.jewishworldreview.com/1014/napolitano100214.php3

Clapper Under the Bus

Judge Andrew P. Napolitano

Published Oct. 2, 2014

When President Obama attributed the rise in Iraq of the Islamic State, or ISIS, to the failures of the U.S. intelligence community earlier this week, naming and blaming directly National Intelligence Director Gen. James Clapper, he was attempting to deflect criticism of his own incompetence. He was discussing the fact that ISIS, right under his own and the general's noses, gained control of nearly half of the landmass of Iraq. This is the same Iraq that the United States supposedly liberated from the clutches of a dictator, strengthened as a regional military power and fortified as the Middle East's newest democracy as a result of our invasion in 2003 and our subsequent 10-year occupation.

Many who supported the war then realize now that we were duped into it by a deceptive and shortsighted Bush administration that was looking to deflect blame for its intelligence failures of 9/11, for which, unlike the Japanese invasion of Pearl Harbor, not a single human being in the federal government has been charged with anything. But that is a topic for another day.

ISIS captured Fallujah and Ramadi, two major cities in Iraq, eight months ago. Surely the president knew about that when it happened. He receives an intelligence briefing every day; more often than not, he prefers a written briefing rather than one where he and his briefers can zero in on problem areas in a face-to-face conversation. Yet since the February takeover of the Iraqi equivalent of Chicago and Los Angeles, the president has told the American people that ISIS is junior varsity and he had no plans to address it, and he seemed not to care about it until ISIS went over his head, so to speak, and beheaded two innocent young Americans and posted grisly videos of their horrific murders on the Internet.

If the president now believes we should fight ISIS because it killed two Americans and boasted about it, he woefully misunderstands his job, which is to preserve, protect and defend the Constitution, not every American everywhere on the planet. If he is convinced ISIS poses an imminent threat to the freedom of Americans and the security of our country, it is hard to believe that these two murders alone brought him to that conclusion. Does he genuinely believe that 25,000 ill-equipped fanatics 10,000 miles from here, with no navy or air force, could possibly be a clear and present danger to the U.S.? And if he does, when and how did he come to that belief if his intelligence team failed him?

These questions are of profound relevance to the American people, because with each passing day, it appears that the president is more indifferent to the facts around him and less competent at pulling the levers of government. Yet he is sending American troops into harm's way on an ill-defined long-term mission without congressional authorization as the Constitution requires.

Here is where his condemnation of Clapper comes in. Clapper is the senior intelligence officer in the federal government. All of our civilian spies, domestic and foreign, indirectly report to him. His job is to steal and keep secrets within the boundaries of the Constitution, which he, like the president, has sworn to defend.

Yet Clapper and his spies are more intent on spying on the American people than on those foreigners who have publicly boasted — however unrealistic their boasts may be — that they will cause us harm. This is, after all, the same Clapper who committed crimes in order to insulate his domestic spies from lawful congressional inquiry when he denied under oath that the U.S. government was acquiring massive amounts of private data about hundreds of millions of Americans.

He made that denial to a Senate committee when he knew what his spies at the NSA were doing. When his lies became apparent, the Senate committee before which he perjured himself — and whose members knew that he was lying at the moment of his lies — gave him an opportunity to correct himself, and he declined to do so. For lying under oath and refusing to correct his statements, Obama should have fired him.

But the president overlooked his spymaster's public lies and went on television's most widely watched program this week and publicly accused Clapper of privately failing to inform the president of something the president must have known about: the ISIS advance on Iraqi population centers.

This war we are now entering is unlawful because we have invaded Syria without a congressional declaration of war and without a legal or moral basis for doing so. It is morally wrong because ISIS is an imminent threat to the U.S. only in the minds of the members of Congress who love war, not in reality. And it is blind to recent history because it will become a more superior recruitment tool for ISIS than our original invasion of Iraq was for al-Qaida. The only reason al-Qaida and ISIS exist in Iraq is as resistance to the American invasion and occupation, an invasion that has materially detracted from the liberty and safety of the U.S. and the stability of the region.

Yet, if Clapper and his spies so miserably failed to educate the president about a threat he now claims is real, why do they still have their jobs? They have their jobs because if the president fires them, they might freely speak the truth, and the truth is the president's enemy. They have their jobs because the president is so bad at performing his.