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Post by philunderwood on Oct 13, 2014 9:55:16 GMT -5
Parallel Reconstruction www.jewishworldreview.com/1014/napolitano101214.php3#vfHKAfzkqs8q6UJc.99 While the political commentators in the nation's capital are wrapped up in the debate over what to do about ISIS, and as one third of the Senate and nearly all members of the House campaign for re-election, the president's spies continue to capture massive amounts of personal information about hundreds of millions of us and lie about it. The president continues to dispatch his National Security Agency spies as if he were a law unto himself, and Congress — which is also being spied upon — has done nothing to protect the right to privacy that the Fourth Amendment was written to ensure. Congress has taken an oath to uphold the Constitution, yet it has failed miserably to do so. But the spying is now so entrenched in government that a sinister and largely unnoticed problem lurks beneath the surface. NSA documents released by Edward Snowden show that the feds seriously deceived Congress and the courts in an effort to spy upon all of us and to use the gathered materials in criminal prosecutions, even though they told federal judges they would not. Among the more nefarious procedures the feds have engaged in is something called "parallel reconstruction." This procedure seeks to hide the true and original source of information about a criminal defendant when it was obtained unlawfully. For example, if the NSA, while unconstitutionally listening to the conversations of Americans hoping to hear about plots to harm other Americans (it has revealed no such plots from among the trillions of private conversations it has monitored since 2005), comes across evidence of a bank robbery, the NSA will pass that evidence on to the Department of Justice. The NSA routinely does this notwithstanding representations to the FISA court that authorizes its spying that it is not in the business of gathering evidence in criminal cases. It makes those claims because the George W. Bush and Barack Obama DOJs have argued to the public and to the FISA court that the Fourth Amendment, which prohibits all searches and seizures without a warrant, somehow applies only to criminal investigations and not to domestic spying. No Supreme Court decision has ever stood for that proposition, and the plain language of the Fourth Amendment makes no distinction between intelligence gathering and evidence gathering. Rather, the language of the amendment is so broad and sweeping ("The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated" except by a search warrant issued by a judge upon probable cause.) that for 230 years it has been held to restrain and regulate all government efforts to gather private information — no matter their purposes. Nevertheless, the NSA's agents and lawyers felt it necessary to concoct this groundless, disingenuous and fictional legal distinction in order to persuade the FISA court that it is legally acceptable to permit untethered spying so long as the fruits of that spying are not used in criminal prosecutions. Curiously and naively, judges of the FISA court bought that argument. So, what happens when the spying uncovers ordinary criminal behavior unrelated to national security? In order to keep its hands clean, so to speak, the NSA sends that evidence to the DOJ, whose lawyers and agents in cahoots with the NSA then concoct an explanation as to how the DOJ came upon the evidence. Of course, that explanation curiously and carefully omits the mention of domestic spying. DOJ lawyers know that if the beginning of the process of obtaining evidence is found to be unconstitutional, then the evidence itself can be useless in court. This is what lawyers and judges call the "fruit of the poisonous tree." Were this not so — that is, if the government could spread any net as broad and as wide as it wished and use whatever the net caught as evidence in criminal prosecutions — then the Fourth Amendment's search warrant requirement would be meaningless because it would not protect the right to privacy as its authors intended. Thus, in order to maintain the facade of spying only for domestic intelligence purposes, and to appear faithful to public and secret promises (the FISA court only sits in secret) that any evidence of criminal behavior inadvertently discovered by NSA spies will not be used in criminal prosecutions, and so as to keep the mechanisms of domestic spying hidden from non-FISA federal judges who are more likely to apply normative interpretations of the Fourth Amendment than their FISA court colleagues, the NSA and the DOJ began the process of parallel reconstruction. Parallel reconstruction consists largely of the creation of a false beginning — an untrue one — of the acquisition of evidence. This, of course, is criminal. Lawyers and agents for the NSA and DOJ may no more lawfully lie to federal judges and criminal defense attorneys about the true origins of evidence than may a bank robber who testifies in his own defense claiming to have been at Mass at the time of the robbery. While parallel reconstruction is deceptive, unlawful and unconstitutional, I suspect it is but the tip of a dangerous iceberg spawned by the unbridled NSA spying that Bush and Obama have given us. When you mix a lack of fidelity to the plain meaning of the Constitution with a legal fiction, and then add in a drumbeat of fear, enforced secrecy and billions of unaccounted-for taxpayer dollars, you get a dangerous stew of unintended tyrannical consequences. Is this the government the Framers gave us? Is this the government anyone voted for? Is this a faithful and moral commitment to the Constitution, the rule of law and personal liberty? The answers are obvious. www.jewishworldreview.com/1014/napolitano101214.php3#vfHKAfzkqs8q6UJc.99
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Post by philunderwood on Oct 16, 2014 8:47:22 GMT -5
Clapper Under the Bus Judge Andrew P. Napolitano Read more at www.jewishworldreview.com/1014/napolitano101614.php3#rvj2W4W1Kj502tVl.99Earlier this week, FBI Director James Comey gave an interview to "60 Minutes" during which he revealed a flawed understanding of personal freedom. He rightly distinguished what FBI agents do in their investigations of federal crimes from what the NSA does in its intelligence gathering, when the two federal agencies are looking for non-public data. The FBI requires, Comey correctly asserted, articulable suspicion to commence an investigation and probable cause to obtain a search warrant. It does this because its agents have sworn an oath to uphold the Constitution, and their failure to comply with that oath may very well render the evidence obtained by unconstitutional means useless in court. The NSA, as we know, makes no pretense about presenting probable cause to a judge. Rather, it asks a judge on a secret court (so secret that the judges themselves are kept from the court's files) for general warrants. A warrant based on probable cause must specifically describe the place to be searched and the person or thing to be seized. General warrants, which the Constitution prohibits, permit the bearer to search wherever he wishes and seize whatever he finds. British government agents and soldiers used general warrants issued by a secret court in London to invade the privacy of the colonists. The British also used another tool now prohibited by the Constitution — called writs of assistance — which permitted certain agents and soldiers to write their own search warrants and serve them upon the colonists. This was done, it was argued, because London was too far from America and the British claimed an urgent need to search colonial homes to determine whether the owners had paid the king's taxes. The British use of general warrants and agent-written warrants became arguably the last straws that tipped colonial minds toward revolution. Comey knows that if his agents get caught violating the Constitution, their searches will be fruitless. Yet, he conveniently failed to reveal in his interview that under the Patriot Act, his agents can and do write their own search warrants — just as British agents and soldiers did. The Patriot Act calls these warrants by the euphemism "national security letters." A national security letter is a search warrant in which one federal agent authorizes another federal agent to search for and retrieve data held by third parties. The list of third parties that can be subjected to an agent-written search warrant includes virtually all entities required by law to keep records, such as telephone providers, banks, lawyers, physicians, hospitals, supermarkets, utility companies, credit card companies and computer service providers; the list is nearly endless. Five federal judges have held this section of the Patriot Act to be a violation of the Fourth Amendment (which provides that only judges may issue search warrants) and thus unconstitutional. The Patriot Act also prohibits the recipient of an agent-written search warrant from telling anyone about it — that includes a lawyer in confidence, a priest in confession, a spouse in the home, even a judge in open court. It is this section of the Patriot Act that is being challenged by Twitter and Google in the Ninth Circuit Court of Appeals in California. Twitter and Google have apparently received many of these unconstitutional agent-written warrants, and they want their customers to know what the government is doing. Two federal judges already have found this section of the Patriot Act to be violative of the First Amendment ("Congress shall make no law ... abridging the freedom of speech.") and thus unconstitutional. The Patriot Act is the most unconstitutional legislation since the Alien and Sedition Acts of 1798, which proscribed speech critical of the government; yet the FBI loves it. Its premise is that in dangerous times, if we surrender our freedoms to the government, the government will keep us safe until the danger passes. This is a flawed argument. The Declaration of Independence recognizes the continuous possession of personal freedoms ("endowed by their Creator with certain inalienable rights"), and thus they cannot be stolen by a majority vote in Congress, but only surrendered by a personal, intentional, knowing choice. And history teaches that government does not return freedoms once stolen or surrendered. Without freedom, who will protect us from the government? The government can't deliver the mail, pave potholes, balance the budget, fairly collect taxes, protect us from Ebola, even tell the truth. Who would trust it with personal freedoms? Since 2001, Comey's agents have written more than half a million of their own search warrants, and their targets don't even know what was done to them. He will argue that if the evidence from these agent-written warrants is not used in court, there is no harm to the unknowing victim, and hence no foul. Yet the Constitution was written to keep the government from interfering with our natural rights even when it does so in secret, because no government violation of inalienable rights is harmless.
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Post by philunderwood on Nov 6, 2014 7:13:13 GMT -5
Can the Republicans make a difference? By Judge Andrew P. Napolitano Read more at www.jewishworldreview.com/1114/napolitano110614.php3#qSxMrygWRKAWAk76.99With the midterm elections complete, it is clear now that the Republicans will control the U.S. Senate for the next two years. Will it make a difference? The two major political parties are more alike than they are different. On the two paramount issues of our day — war and debt — they are identical. With the exception of Democratic progressives and Republican libertarians, the two parties stand for perpetual war and perpetual debt. Both stances increase the power of the government, and each invites present and future destruction. A healthy society should avoid war at all costs, except when immediately vital for its own self-defense. A healthy government should pay its bills and not push them off to the next generation. Do you know any American whose freedom and safety have been enhanced or fortified because of all our empire building in the Middle East? Do you know that the federal government borrowed two trillion dollars to wage these wars and now spends twenty cents of every dollar in interest on its debt? Do you know that the congressional leadership and most of the rank and file of both political parties have brought this about? There are two great freedoms being assaulted under the radar that will soon come to the fore: the freedom to live and the freedom to speak. Both parties use abortion as a litmus test. You want the Democratic nomination for any federal or state office; you need to support a woman's right to abortion. You want the Republican nomination for any federal or state office; you better claim that you are pro-life. I say "claim" because that's all Republicans need to do to satisfy each other. If Republicans truly were pro-life, they'd have passed a one-paragraph statute when they ran the Congress and George W. Bush was in the White House that legally defined a fetus in the womb as a natural person. Of course, morally and biologically, a fetus is a natural person. The fetus has human parents and possesses a fully actualizable human genome — all the genetic materials needed to grow and flourish and possess self-directed humanity. But no such legislation ever came. Since the Supreme Court denied personhood to every fetus in 1973, much as it had done to African-Americans in 1857, more than 44,000,000 babies have met the abortionists' vacuum and scalpel. Will a newly revived Republican Congress address personhood to the abortionist in chief in the White House? Don't hold your breath. After the right to life, the next great freedom under siege is the freedom of speech. Here, too, both parties in Congress have failed us. When Congress in 2001 enacted the Patriot Act, which permits federal agents to write their own search warrants in utter defiance and direct contradiction of the Fourth Amendment, which commands that only judges may do so, it also prohibited the recipients of agent-written search warrants from talking about them. At least a half-dozen federal judges have found this infringement of speech unconstitutional, yet federal agents who serve their own search warrants continue to threaten the recipients against talking to anyone about them. This, too, came about with the support of the leadership of both political parties in Congress. Not content with commanding silence about search warrants, the Democrats in the Senate attempted to offer an amendment to the Constitution last summer, which, if ratified, would have weakened the First Amendment by permitting Congress and the states to punish the political speech of groups. Three years ago, the Supreme Court, in a case called Citizens United, held that free political speech is such a highly valued and constitutionally protected asset in American society that it may be enjoyed not only by individuals, but also by groups of two or more persons, such as labor unions, foundations, nonprofits, think tanks, partnerships and corporations. Outraged that corporations can spend money to affect the outcome of campaigns, rejecting the concept that buying an advertisement in a newspaper or on TV is speech, and wanting to remove the word "free" from free speech, the Democrats attempted to circulate to the states an amendment to the Constitution that would have made the government the arbiter of acceptable political speech. Is Vladimir Putin consulting the Democrats? Yet, did you hear any Republicans in the recent elections call out any Democrats for this stunt? The First Amendment has remained pristine since it was ratified in 1791, and the Democrats want to change that, and the Republicans have gone mute. A lame duck President Obama facing a Congress he hates and fears may become reckless. We should expect that. But if somehow he facilitates the killing of more babies in their mothers' wombs or the suppression of more political speech from his critics, what will a Republican Congress do? What is its track record? Read more at www.jewishworldreview.com/1114/napolitano110614.php3#qSxMrygWRKAWAk76.99
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Post by philunderwood on Nov 13, 2014 9:23:54 GMT -5
Questions for the Nominee By Judge Andrew P. Napolitano Read more at www.jewishworldreview.com/1114/napolitano111314.php3#I2CFsYeAIJQBTzox.99Within hours of realizing that his party lost control of the U.S. Senate last week, President Obama nominated Loretta Lynch, the chief federal prosecutor in Brooklyn, N.Y., and an outstanding and apolitical professional, to be the next attorney general. The current attorney general, Eric Holder, resigned last month. Lynch is sure to be confirmed by either the present Democratic-controlled Senate this fall or by the newly constituted Republican-controlled Senate early next year — and she should be. But the process of confirming her should capture the interest of all Americans concerned about the loss of personal freedoms in our present-day Orwellian world in which the Obama administration has killed innocent Americans, spied on trillions of conversations and emails without probable cause, and declined to enforce laws with which it disagrees. Republican senators have a duty to ask her probing questions. Is this just inside-the-Beltway stuff, or should you care who is the chief federal law enforcement officer in the land? You should care, and here is why. When the United States was founded, the essence of the government was the diffusion of power between the states and the federal government. At the outset, state attorneys general were the engines that drove law enforcement, as the U.S. attorney general was involved exclusively with governmental relations between the states and the feds and protecting federal interests — which included federal property and federal currency. The job came with a small office and a handful of remotely venued prosecutors. The states checked federal law enforcement excess by not cooperating with it or even judicially invalidating it. Today, the opposite is the case. When the feds want something, they bully the states aside, and when the feds get away with something, the states will soon follow. Today, the states are powerless to check federal excess, and so Attorney General Holder became President Obama's enabler in some of the most egregious violations of the natural law, the Constitution and federal law in modern American history. Today, the attorney general — often called "General" by law enforcement — commands an army of 90,000 lawyers, FBI agents, investigators, clerks, pilots, even troops. There are currently in excess of 4,000 federal criminal statutes for her to enforce, and she sets the tone for law enforcement throughout the country. Hence, I suggest to members of the Senate Judiciary Committee that they permit Lynch to distinguish herself from Holder by inducing her to answer the following questions: —Will you advise the president, as Holder did, that his careful, secret, conscientious deliberations about the legal guilt of some Americans are a constitutionally adequate substitute for due process, such that he can kill uncharged, untried, unsentenced Americans? —Do you defend the president's killing two innocent American children, as Holder did? —Will you advise the president that he can use his prosecutorial discretion in such a manner that American borders become open as they did for Central American children last summer, and that foreign nationals who are here illegally can legally remain here without complying with the laws Congress has written? —Will you tell the president that the NSA can disregard the Constitution and execute general warrants, which permit the bearer to search wherever he wishes and seize whatever he finds, even though the Fourth Amendment was written to prevent general warrants? —Can the president decline to enforce laws with which he disagrees without violating his oath to enforce federal laws faithfully? —Will you advise the president that he can subpoena the home telephone records and the personal email accounts of Associated Press and Fox News reporters, as Holder did? —Will you permit state and local police and the IRS to seize the property of known innocents who have not been charged with criminal behavior, much less convicted of it, and then retain much of the seized property even if the persons from whom it was seized are acquitted? —Will you permit law enforcement to break the law in order to enforce it? —Will you condone law enforcement using tanks and battering rams to deliver subpoenas? —Will you permit law enforcement personnel to create crimes so that they can solve the crimes they created and then boast about the crimes they claim to have solved? —Do you accept the presumption of liberty, which means that the government must respect individual choices unless and until it can prove violations of the law to a judge or jury? It is time for a national debate about the role of law enforcement in our lives, and the confirmation hearings on the nomination of Loretta Lynch to become attorney general can provide an excellent platform. If she agrees that the Constitution is not a neutral instrument as between the people and the government because it was written to keep the government off our backs, she will be an antidote to Obama's law breaking. But I think I may be wishing for too much. She is, after all, his nominee. Read more at www.jewishworldreview.com/1114/napolitano111314.php3#I2CFsYeAIJQBTzox.99
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Post by philunderwood on Nov 20, 2014 10:58:16 GMT -5
Constitutional Fire Judge Andrew P. Napolitano Earlier this week, President Obama made it clear that he will soon offer some form of limited amnesty to about five million foreign nationals who are currently living illegally in the United States. He will do so by issuing an executive order to federal officials who oversee immigration directing them to undertake a course of action that, if complied with individually by all persons whom he designates as eligible, will cause the federal government to remove the threat of deportation from those who meet the standards he will lay down. Can he legally do that? To address that question, we need to start with the principle that a presidential action may be lawful at the same time that it is unconstitutional. The president has the legal power to defer deportations. The power is called prosecutorial discretion. This is a power traditionally recognized as inherent in the presidency that enables him to defer or modify all federal law enforcement. The theory is that the president needs the ability to allocate resources as the changing times, emergent events and public needs may require. Thus, he can, for example, defer prosecuting bank robbers and aggressively pursue drug dealers. That wouldn't mean that all bank robbers would go free; it would mean that either state prosecutors would pursue them, or they'd wait for trials until the drug kingpins were caught and convicted. But he could set some free if he wished. The check on the exercise of prosecutorial discretion is gross abuse, which is typically demonstrated by either improper executive motive or effective nullification of law. I don't know what the president's motive is. If it is political, I suspect his efforts will backfire. He cannot grant citizenship or the right to vote. If his motive is humanitarian or moral, I understand him. Under the natural law, people have the right to travel and live wherever they wish. The existence of our natural rights is not conditioned upon the place where our mothers were at the times of our births. And from a free market and historical perspective, immigrants have enhanced the economy as they move up the demographic ladder. But the president's behavior has serious constitutional dimensions that go far beyond the motives in his heart, and his oath is to the Constitution, not to his heart. If the president nullifies deportations on such a grand scale that the effect is the nullification of federal laws, then he has violated his oath "faithfully" to execute his presidential obligations. The Framers required that every president swear to do his job "faithfully" to serve as a reminder to him that his job requires fidelity to the enforcement of laws with which he may disagree. The American people, Congress and the courts need to know we have a president who will enforce the laws, whether he agrees with them in his heart or not. Without presidential fidelity to the rule of law, we have a king, not a president. By conferring temporary legal status upon foreign nationals who have not achieved it under the law, providing they meet criteria that he will establish, the president affects huge numbers of persons and produces a result that is the opposite of what the law requires. Can the president's exercise of his prosecutorial discretion constitutionally nullify a federal statute? No. Can the president's exercise of his prosecutorial discretion effectively rewrite a federal statute? No. It is unconstitutional for the president to nullify federal law. It is unconstitutional for him to refuse to enforce laws that affect millions of persons and billions of dollars. It is unconstitutional for him to refuse to enforce laws merely because he disagrees with them — particularly laws that pre-existed his presidential oaths. And it is unconstitutional for him to rewrite laws, even if he is doing so to make them more just. Every president since Dwight D. Eisenhower has deferred some deportations. President Reagan deferred deportations for about 100,000 families of foreign nationals in 1987 under his reading of the congressionally authorized 1986 amnesty law, and President George H.W. Bush did so in 1990 for about 350,000 foreign nationals under his reading of the same law. Each of these was based on a principled public presidential reading of the words and purposes of a federal statute. Obama does not purport to read and interpret the current immigration law; rather, he effectively rewrites it. What can Congress do? Congress can pass legislation to invalidate Obama's executive actions. Yet even if it did so and overrode his certain veto, it has no assurances that Obama would be bound by the new legislation. He refuses to enforce the plain language of well-established and never judicially altered federal statutes. What assurances does Congress have that he would follow any new statutes that he has vetoed and that regulate his behavior? Is the blanket refusal to enforce federal laws that profoundly affect five million persons — and in the process severely straining the social services of all 50 states — an impeachable offense? The president is playing with constitutional fire, and impeachment is the only constitutional remedy available, short of 25 months of a constitutional conflagration that he has ignited. Read more at www.jewishworldreview.com/1114/napolitano112014.php3#DHkKcFmJGk37hiig.99
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Post by philunderwood on Nov 27, 2014 10:03:32 GMT -5
Thankful For? Judge Andrew P. Napolitano What if the government is designed to perpetuate itself? What if the real levers of governmental power are pulled by agents and diplomats and bureaucrats behind the scenes? What if they stay in power no matter who is elected president or which major political party controls Congress? What if the frequent public displays of adversity between the Republicans and the Democrats are just a facade and a charade? What if both major political parties agree on the transcendental issues of our day? What if they both believe that our rights are not natural to our humanity but instead are gifts from the government? What if they both believe that the government that gives gifts to its people can take those gifts back? What if the leadership of both parties give only lip service to Thomas Jefferson's words in the Declaration of Independence that each of us is "endowed by (our) Creator with certain inalienable rights, (and) among these is life, liberty, and the pursuit of happiness," and that the purpose of government is to protect these rights? What if the leadership of both major political parties dismiss these ideas as just Jefferson's outdated musings? What if Jefferson's arguments have been enacted into the federal laws that all in government have sworn to uphold? What if the leadership of the two major political parties believe that due process permits mothers to kill the babies in their wombs out of fear or convenience? What if the leaders of both major political parties believe that the president should be able to kill whomever he wants out of fear, because due process is an inconvenience? What if President Obama killed Americans and claimed that he did so legally, relying on the convenient arguments of his attorney general, who falsely told him he could kill? What if the Constitution requires due process whenever the government wants someone's life, liberty or property, whether convenient or not? What if the congressional leadership and most of the membership from both political parties believe in perpetual war and perpetual debt? What if the history of America in the past 100 years is proof of that nearly universal belief among the political classes? What if the political classes in America believe that war is the health of the state? What if the leadership of those classes want war so as to induce the loyalty of the voters, the largesse of the taxpayers and the compliance of the people? What if the political classes use war to enrich their benefactors? What if the government has been paying for war by increasing its debt? What if the political classes have been paying for prosperity by increasing the government's debt? What if those classes have controlled the cash-creating computers at the Federal Reserve and the free cash the Fed creates is to bankers and traders what heroin is to addicts? What if the $17.5 trillion current federal government debt has largely been caused by borrowing to pay for war and false prosperity? What if the silent damage that the artificial creation of cash causes has not been manifested in price inflation but in equity and savings deflation? What if the manifestation of equity deflation is that too much of everything we own secures too much debt? What if the folks at the Fed who create the cash have kept interest rates so low that there is little incentive to save? What if we all own a smaller percentage of what we think we own because the value of what we own has decreased as the debt on what we own has increased? What if the banks have borrowed the money that they lend? What if the stock market is soaring on borrowed money? What if mansions and shopping malls are popping up, but they secure more debt than they are worth? What happens when the plug is pulled on this temporary artifice as those debts come due? What if the government demands transparency from all of us but declines to be transparent to us? What if the government fosters the make-believe that it exists to serve us? What if it has access to all of our communications, bank accounts, health and legal records, and monthly bills? What if the government knows more about us than we know about it? What if the government stays in power by bribery? What if it bribes the rich with bailouts, the middle class with tax cuts and the poor with welfare? What if the courts approved this bribery? What if, on Thanksgiving, our gratitude is not to the government that assails our freedoms, but to the G0D who created us? What if our gratitude on Thanksgiving is for life, liberty and the pursuit of happiness? What if that for which we are truly grateful are the aspects of our humanity that are in God's image and likeness? What if those aspects have nothing to do with the government? Read more at www.jewishworldreview.com/1114/napolitano112714.php3#ykKzTW1BYLyh9iag.99
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Post by philunderwood on Dec 4, 2014 10:20:13 GMT -5
Are the police our servants or our masters? Judge Andrew P. Napolitano Published Dec. 4, 2014 Read more at www.jewishworldreview.com/1214/napolitano120414.php3#69USRRUeP4LK4vGf.99 The city of Ferguson, Mo., is now burned into our consciousness in a way that few other places are. In my youth, the race riots in Newark, Detroit and Los Angeles marked turning points in my own and in the public's awareness of the problems of a black underclass that perceives itself as being so unfairly governed by a white power structure that it resorted to violence. Those disturbances also revealed the difficulties of hardworking black families trying to make decent lives for themselves by endeavoring to leave the inner cities and, as basketball player-turned-philosopher Charles Barkley stated, the opportunities of inner city "scumbags" willing to steal and pillage and incite for some temporary material or political gain. We saw this again in Los Angeles during the Rodney King affair, in which a jury in a state prosecution acquitted two white cops of savagely beating an unarmed black man, and the mobs rioted. Thereafter, the same cops were charged with federal crimes based on the same facts and were convicted by a federal court. As bad as it was for those cops to have beaten King, it was worse for the government to violate the prohibition on double jeopardy by using the legal fiction of federal jurisdiction and federal prosecution as being so distinct from what the State of California had tried and failed to do that the second trial did not constitute a constitutionally prohibited repeated attempt to convict. It did. Fast-forward to Ferguson, and we see the toxic mixture of a black underclass and a white power structure and the corrupt advantages that people on the make and people on the take can exploit from it. In Ferguson, the law enforcement case is far more straightforward than the racial complexities. A white cop put 10 bullets into the body of an unarmed black youth with whom he was wrestling for control of his gun. The cop succeeded in wresting the gun from the youth and then proceeded to kill him. Once the cop had control of the gun and the youth had been immobilized, all additional gun firing is criminal. That the youth was the aggressor does not diminish the cop's obvious criminal overuse of deadly force. The grand jury — whose job is merely to certify that the state has enough evidence to justify the charges it seeks to present against a given defendant — was subjected to the type of evidence that only trial juries hear, including a soliloquy from the cop himself and all the exculpatory evidence the prosecutor could find. Prosecutors often loathe and sometimes even hide exculpatory evidence, but this county prosecutor must have been afraid to seek an indictment, and so he shrewdly manipulated this grand jury out of its role of determining whether the state had probable cause to try the cop and into the role of a trial jury, which is to judge whether the state has proved guilt beyond a reasonable doubt. If the feds now come along and indict the cop on federal charges, they would be correcting the error and perversion of the grand jury. This would not be double jeopardy as in the King case, because the cop in Ferguson has never been charged on the basis of the facts in this case. Would we even know of this case if both the cop and the youth had been of the same race? Probably not. The long and unhappy history of race relations in America now has another fiery chapter with more tragedy. The tragedy is the result of the governmental use of race as a basis for decision-making. When cops are hired because they are white, when police suspect criminal behavior on the part of youth because the youth is black and then act on those suspicions, when a predominantly black populace feels — however accurately or inaccurately — that it is being treated unfairly by the government and the government fails to address this perception, when hucksters and scumbags who are drawn to these conflagrations use racial vulnerability to rob and pillage and arouse and destroy, and when the sides are arrayed along racial lines, the government has failed to protect the liberty and property of the people it was hired to protect. The failure in Ferguson is across the board. From a city government whose police force makes its minority populace feel vulnerable and defends an unnecessary public killing by one of its cops, to a county prosecutor afraid to take responsibility for a proper public prosecution, to a governor missing in action, to a president who sounds like he wants to federalize police, we have an out-of-control stewpot boiling over into a wave of destruction. The police need to be strong enough to protect life, liberty and property, and vulnerable enough to tolerate all political opinions, even those filled with ignorance and hate. The militarization of local police — perfected during the past two presidential administrations, which have given local cops military surplus intended to be used on enemy armies in foreign lands — if uncorrected, will lead to a police state. A police state is one in which the government's paramount concern is for its own safety, and not for the lives, liberties and properties of those it has sworn to protect. Are the police our servants or our masters? Can the mobs in the streets express political opinions without harming innocents? Can the government be dedicated to preserving the personal liberty — the right to be oneself — of even the most vulnerable among us? Can we use the tragedy of Ferguson to achieve a freedom-generated nonracial consensus on all this? If we fail to address this maturely, I fear that more Fergusons will soon be upon us. Read more at www.jewishworldreview.com/1214/napolitano120414.php3#69USRRUeP4LK4vGf.99
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Post by philunderwood on Dec 11, 2014 14:55:51 GMT -5
The CIA and Its Torturers Judge Andrew P. Napolitano When the head of the CIA's torture unit decided to destroy videotapes of his team's horrific work, he unwittingly set in motion a series of events that led to the release this week of the most massive, detailed documentation of unlawful behavior by high-ranking government officials and intentional infliction of pain on noncombatants by the United States government since the Civil War era. Here is the backstory. One of the reasons repeatedly stated by President George W. Bush for the American invasion of Iraq in 2003 was the maintenance of "torture rooms" by Saddam Hussein. While making this very argument, Bush was secretly authorizing CIA agents to engage in similar unlawful behavior for similar purposes: intelligence and deterrence. Bush sounded credible when he claimed that his administration adhered to federal and international legal standards. He knew he could make that claim because the torturers were sworn to secrecy, as were their congressional regulators. The CIA charter permits Congress to regulate the CIA in secret. Congress has established two secret congressional committees, one from the Senate and one from the House, to serve as monitors and regulators of CIA activities. The stated reason for the secrecy is to keep our enemies from knowing what the CIA is doing. The effect of the secrecy has been a muzzled Congress, lied to by law-breaking and rogue CIA officials. Until now. When the Senate Intelligence Committee staff learned of the destroyed videotapes (a federal crime the Justice Department declined to prosecute) and reported that destruction to Sen. Dianne Feinstein, D-Calif., the committee chair, she ordered an investigation to determine whether the CIA officials who had briefed her committee had told the truth. If they had been truthful, she reasoned, why destroy the tapes? In order to conduct that investigation, Feinstein ordered the CIA to make available to her committee's investigators whatever documents and digital data the investigators sought. During the course of the investigation, Senate investigators suspected their computers had been hacked. When they brought those suspicions to Feinstein, she ordered another investigation, this one aimed at identifying the hackers. That investigation revealed that the CIA itself was spying on its own Senate investigators. When she approached CIA Director John Brennan about this, he denied it. When she went to the floor of the Senate — where her vow of secrecy may lawfully be disregarded — to reveal that the CIA had spied on her and her fellow Senators and their investigators, the CIA denied it. When she released incontrovertible evidence of CIA domestic spying, Brennan admitted that his agents had spied on their regulators (another federal crime the feds declined to prosecute), but claimed it was needed because the regulators had exceeded their authority in examining CIA documents. All this put the original investigation of why the tapes of the torture had been destroyed and whether the CIA had been truthful to the White House and its congressional regulators into high gear. When the investigators' final report — all 6,000 pages of it, much in lurid detail — was completed, it was sent to the White House, which decided to release it. The CIA begged for redactions of agents' names and other identifiers, and a long process of negotiation ensued between the White House, the State Department, the CIA and the Senate. This week, Feinstein had had enough and decided to release the report with the then-agreed-upon redactions. The report is damning in the extreme to the Bush administration and to the CIA leadership. It offers proof that the CIA engaged in physical and psychological torture, some of which was authorized — unlawfully, yet authorized — most of which was not. The report also demonstrates that CIA officials repeatedly lied to the White House and to Senate regulators about what they were doing, and they lied about the effectiveness of their torture. If the allegations in the report are true, we have war criminals, perjurers, computer hackers and thugs on the government payroll. We also have dupes. The most politically successful argument the torture lobby has made is that we are all safer because of these dirty deeds. This Senate report refutes that argument by demonstrating that no serious actionable intelligence came from the torture. All torture is criminal under all circumstances — under treaties to which the U.S. is a party, under the Constitution that governs the government wherever it goes, and under federal law. Torture degrades the victim and the perpetrator. It undermines the moral authority of a country whose government condones it. It destroys the rule of law. It exposes our own folks to the awful retaliatory beheadings we have all seen. It is slow, inefficient, morbid and ineffective. It is a recruiting tool for those who have come to cause us harm. All human beings possess basic inalienable rights derived from the natural law and protected by the Constitution the CIA has sworn to uphold. Torture violates all of those rights. What should we make of this report on government torture? In a free society in which the government works for us, we have a right to know what it is doing in our names, and we have a reasonable expectation that the laws the government enforces against us it will enforce against itself. But don't hold your breath waiting for that to happen. Read more at www.jewishworldreview.com/1214/napolitano121114.php3#9kViVVWMQXYKrubU.99
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Post by philunderwood on Jan 8, 2015 6:32:24 GMT -5
Liberty Lost: What an outsider grasps By Judge Andrew P. Napolitano Published Jan. 8, 2015 A British author, residing in the United States for the past 30 years, created a small firestorm earlier this week with his candid observations that modern-day Americans have been duped by the government into accepting a European-style march toward socialism because we fail to appreciate the rich legacy of personal liberty that is everyone's birthright and is expressly articulated in the Declaration of Independence and guaranteed by the U.S. Constitution. Os Guinness, the author of more than a dozen books defending traditional Judeo-Christian values and Jeffersonian personal liberty, argued that we should embrace individual liberty and personal dignity and reject the "no givens, no rules, no limits" government we now have. He went on to opine that the government today is not the constitutionally restrained protector of personal freedoms the Framers left us, but rather has become the wealth-distributing protector of collective interests the Founding Fathers never could have imagined. Yet the problem is a deep one. The Framers believed in the presumption of liberty, which declares that we are free to make personal choices, and the government cannot interfere with our liberties unless we violate the rights of others. Stated differently, the federal government cannot interfere with our personal choices by writing any law it wants; it can only regulate behavior or spend money when the Constitution authorizes it to do so. However, for the past 100 years, the federal government has rejected the Madisonian concept that it is limited to the 16 discrete powers the Constitution delegates to it, and has claimed its powers are unlimited, subject only to the express prohibitions in the Constitution. Even those prohibitions can be circumvented since government lawyers have persuaded federal courts to rule that Congress can spend tax dollars or borrowed money on any projects it wishes, whether authorized by the Constitution or not. The courts have even authorized Congress to use federal tax dollars to bribe the states into enacting laws that Congress is powerless to enact, and Congress has done so. The Declaration of Independence defines our personal liberties as inalienable aspects of our humanity, and the Constitution prohibits the government from interfering with those liberties — such as thought, speech, press, association, worship, self-defense, travel, privacy, due process, use of money and private property, to name a few. The teaching of these founding documents is that our liberties are natural — their source is not the government — and they are personal, not collective. We don't need a government permission slip to exercise them; we don't need to belong to a group to enjoy them; they cannot be taken away by a congressional vote or a presidential signature. Even though everyone who works for the government takes an oath to uphold the Declaration and the Constitution, very few are consistent with what they have sworn to do. We know that because on the transcendental issues of our day — life, liberty, war and debt — the leadership of both political parties and the behavior of all modern presidents have revealed a steadfast willingness to write any law and regulate any behavior or permit any evil, whether authorized by the Constitution or not. Take life. Abortion is the most deadly force in America today. Abortions lawfully kill a baby every minute — that's 1.1 million babies a year and 45 million killed since the Supreme Court issued its Roe v. Wade decision in 1973. A simple one-line statute — "The fetus in the womb is a legal person" — could have been enacted by a simple majority vote in Congress and signed into law by any of our so-called pro-life presidents, thus stopping the slaughter. It never happened. Take liberty. Both parties support the Patriot Act and the secret Foreign Intelligence Surveillance Act apparatus, which together invade privacy, infringe upon free speech, permit federal agents to write their own search warrants and allow domestic spying on all of us all the time. This demonstrates that our political leaders do not believe that our rights are inalienable, but can be interfered with and regulated by them. They have written laws that literally permit federal agents to undertake the very acts the Constitution was written to prohibit. Take the lethal combination of war and debt. Both parties support perpetual war and perpetual debt. The leadership of both parties has permitted every modern president to kill whomever he pleases in foreign countries without lawful declarations of war and to do so by going into a $17 trillion hole of debt, with no end in sight. Today, 20 cents of every tax dollar collected goes to interest on pre-existing government debt. Today's taxpayers are still paying interest on the $30 billion Woodrow Wilson borrowed to finance World War I in 1917. The British author is correct. Unless we have a radical change in the direction of government — its size, cost, focus, intrusiveness and rejection of first principles — and unless we elect people to the government who truly believe the Declaration and the Constitution mean what they say, we will continue our march toward the federal destruction of the presumption of liberty. It is a slow march, but a steady one. Read more at www.jewishworldreview.com/0115/napolitano010815.php3#BDe4MaLYFLBiUfI2.99
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Post by philunderwood on Jan 8, 2015 6:45:43 GMT -5
President and Congress are heedless to the limits of their power By Judge Andrew P. Napolitano Published Dec. 18, 2014 When the government is waving at us with its right hand, so to speak, it is the government's left hand that we should be watching. Just as a magician draws your attention to what he wants you to see so you will not observe how his trick is performed, last week presented a textbook example of public disputes masking hidden deceptions. Here is what happened. Last week was dominated by two huge news stories. One was the revelation by the Senate Intelligence Committee of torture committed by CIA agents and contractors on 119 detainees in the post-9/11 era — 26 of whom were tortured for months by mistake. In that revelation of anguish and error were the conclusions by CIA agents themselves that their torture had not produced helpful information. President Barack Obama acknowledged that the CIA had tortured, yet he directed the Department of Justice not to prosecute those who tortured and those who authorized it. The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of September 2015. That legislation, which is 2,000 pages in length, was not read by anyone who voted for it. It spends a few hundred billion dollars more than the government will collect in tax revenue. The compromise was achieved through bribery; members of Congress bought and sold votes by adding goodies (in the form of local expenditures of money borrowed by the federal government) to the bill that were never debated or independently voted upon and were added solely to achieve the votes needed for passage. This is how the federal government operates today. Both parties participate in it. They have turned the public treasury into a public trough. Hidden in the law that authorized the government to spend more than it will collect was a part about funding for the 16 federal civilian intelligence agencies. And hidden in that was a clause, inserted by the same Senate Intelligence Committee that revealed the CIA torture, authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments. "Nonpublic data" is the government's language referring to the content of the emails, text messages, telephone calls, bank statements, utility bills and credit card bills of nearly every innocent person in America — including members of Congress, federal judges, public officials and law enforcement officials. I say "innocent" because the language of this legislation — which purports to make lawful the NSA spying we now all know about — makes clear that those who spy upon us needn't have any articulable suspicion or probable cause for spying. The need for articulable suspicion and probable cause has its origins in the Fourth Amendment to the Constitution, which was written to prohibit what Congress just authorized. That amendment was a reaction to the brutish British practice of rummaging through the homes of American colonists, looking for anything that might be illegal. It is also a codification of our natural right to privacy. It requires that if the government wants nonpublic data from our persons, houses, papers or effects, it must first present evidence of probable cause to a judge and then ask the judge for a search warrant. Probable cause is a level of evidence that is sufficient to induce a judge into concluding that it is more likely than not that the place to be examined contains evidence of crimes. In order to seek probable cause, the government must first have an articulable suspicion about the person or place it has targeted. Were this not in the law, then nothing would stop the government from fishing expeditions in pursuit of anyone it wants to pursue. And fishing expeditions turn the presumption of liberty on its head. The presumption of liberty is based on the belief that our rights are natural to us and that we may exercise them without a permission slip from the government and without its surveillance. Until last week, that is. Last week, Congress, by authorizing the massive NSA spying to continue and by authorizing the spies to share what they have seized with law enforcement, basically permitted the fishing expeditions that the Fourth Amendment was written to prevent. How can the president and Congress defy the Constitution, you might ask? Hasn't every member of the government taken an oath to uphold the Constitution? Doesn't the Constitution create the presidency and the Congress? How can politicians purport to change it? The answers to these questions are obvious, as is the belief of most of those in government that they can write any law and regulate any behavior and ignore the Constitution they have sworn to uphold whenever they want, so long as they can get away with it. Read more at www.jewishworldreview.com/1214/napolitano121814.php3#m0Bj6wh1KyfOlRsz.99
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