Is Government Ever Faithful To The Constitution?

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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.

 
COPYRIGHT 2014 ANDREW P. NAPOLITANO
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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Once Again, Obama Playing With Constitutional Fire By Inviting Illegals

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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.

 
COPYRIGHT 2014 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM

Photo credit: The Speaker (Flickr)

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Why Is Obama’s Administration Chilling Free Speech Yet Again?

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Earlier this week, the federal government’s National Science Foundation, an entity created to encourage the study of science — encouragement that it achieves by awarding grants to scholars and universities — announced that it had awarded a grant to study what people say about themselves and others in social media. The NSF dubbed the project Truthy, a reference to comedian Stephen Colbert’s invention and hilarious use of the word “truthiness.”

The reference to Colbert is cute, and he is a very funny guy; but when the feds get into the business of monitoring speech, it is surely no joke–it is a nightmare. It is part of the Obama administration’s persistent efforts to monitor communication and scrutinize the expressions of opinions it hates and fears.

We already know the National Security Agency has the digital versions of all telephone conversations and emails sent to, from, or within the U.S. since 2005. Edward Snowden’s revelations of all this are credible and substantiated, and the government’s denials are weak and unavailing — so weak and unavailing that many NSA agents disbelieve them.

But the government’s unbridled passion to monitor us has become insatiable. Just two months ago, the Federal Communications Commission, which licenses broadcasters, threatened to place federal agents in cable television newsrooms so they can see how stories are generated and produced. The FCC doesn’t even regulate cable; yet it threatened to enhance its own authority by monitoring cable companies from the inside.

What’s going on here?

What’s going on here, and has been going on since President Obama took office in January 2009, is a government with little or no fidelity to basic constitutional norms. There is no defense under the Constitution to any aspect of the government’s — federal, state, regional, local, or hybrid; or any entity owned or controlled by any government; or any entity that exercises the government’s coercive powers or spends or receives its money — monitoring of the expressive behavior of anyone in the U.S., not in a newsroom, on social media, or anywhere else.

The NSF’s stated purpose of the Truthy squad is to look for errors in speech, particularly errors that fuel hatred or political extremes. This monitoring — this so-called search for error — is totalitarian and directly contradicts well-grounded Supreme Court jurisprudence, for several reasons.

First, for the government to gather information — public or private — on any person, the Constitution requires that the government have “articulable suspicion” about that person. Articulable suspicion is a mature and objective reason to believe that the person has engaged in criminal behavior. Without that level of articulable belief, the government is powerless to scrutinize anyone for any reason.

The articulable suspicion threshold is vital to assure that people in America have the presumption of liberty and are free to choose their behavior unimpeded or threatened by the government. The feds cannot cast a net into the marketplace of ideas and challenge what it brings in. Were they able to do so, the constitutional protections for free expression and the primacy of liberty would be meaningless.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

“Parallel Reconstruction”: Big Brother’s Latest Scheme

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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.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Is America Repeating The Mistakes Of The Past In Iraq?

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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?

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom