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FISA court is unconstitutional

4 Oct
 

Government Looking for Witches Will Find Them

By

While the nation’s political class has been fixated on a potential government shutdown in Washington this week, the NSA has continued to spy on all Americans and by its ambiguity and shrewd silence seems to be acknowledging slowly that the scope of its spying is truly breathtaking.

The Obama administration is of the view that the NSA can spy on anyone anywhere. The president believes that federal statutes enable the secret FISA court to authorize the NSA to capture any information it desires about any persons without identifying the persons and without a showing of probable cause of criminal behavior on the part of the persons to be spied upon. This is the same mindset that the British government had with respect to the colonists. It, too, believed that British law permitted a judge in secret in Britain to issue general warrants to be executed in the colonies at the whim of British agents.

General warrants do not state the name of the place to be searched or the person or thing to be seized, and they do not have the necessity of individualized probable cause as their linchpin. They simply authorize the bearer to search wherever he wishes for whatever he wants. General warrants were universally condemned by colonial leaders across the ideological spectrum — from those as radical as Sam Adams to those as establishment as George Washington, and from those as individualistic as Thomas Jefferson to those as big-government as Alexander Hamilton. We know from the literature of the times that the whole purpose of the Fourth Amendment — with its requirements of individualized probable cause and specifically identifying the target — is to prohibit general warrants.

And yet, the FISA court has been issuing general warrants and the NSA executing them since at least 2004.

Last week we learned in a curious colloquy between members of the Senate Select Intelligence Committee and Gen. Keith Alexander and Deputy Attorney General James Cole that it is more likely than not that the FISA court has permitted the NSA to seize not only telephone, Internet and texting records, but also utility bills, credit card bills, banking records, social media records and digital images of mail, and that there is no upper limit on the number of Americans’ records seized or the nature of those records.

The judges of the FISA court are sworn to secrecy. They can’t even possess the records of what they have done. There is no case or controversy before them. There is no one before them to oppose what the NSA seeks. They don’t listen to challenged testimony. All of this violates the Constitution because it requires a real case or controversy before the jurisdiction of federal courts may be invoked. So when a FISA court judge issues an opinion declaring that NSA agents may spy to their hearts’ content, such an opinion is meaningless because it did not emanate out of a case or controversy. It is merely self-serving rhetoric, unchallenged and untested by the adversarial process. Think about it: Without an adversary, who will challenge the NSA when it exceeds the “permission” given by the FISA court or when it spies in defiance of “permission” denied? Who will know?

For this reason, the FISA court is unconstitutional at best and not even a court at worst. It consists of federal judges administratively approving in secret the wishes of the government. By not adjudicating a dispute, which is all that federal judges can do under the Constitution, these judges are not performing a judicial function. Rather, they are performing a clerical or an executive one, neither of which is contemplated by the Constitution.

And yet, the president and his secret agents and the politicians who support them would have you believe that the NSA’s spying has been approved by bona fide federal courts. It has not. Does the Constitution permit the federal government to put us all under a microscope? It does not. The government is supposed to work for us and derive its powers from the consent of the governed. Do you know anyone who consented to all this? I do not.

The traditional bar that the government must meet in order to begin gathering data on any of us is individualized articulable suspicion about criminal behavior. The purpose of that requirement is to prevent witch hunts and inquisitions and knocks on doors in the night. Without that bar, there are no limits as to whom the feds can pursue.

What will become of us if the feds can watch our every move and hear our every conversation and learn our every expenditure and read our every email and find out what we eat and whom we love and how we live? There are well over 4,500 federal crimes. The feds can find something wrong that anyone has done. Stalin’s chief of secret police, the monster Lavrenti Beria, once famously proclaimed: “Show me the man and I will find you the crime.” History teaches that a government on a witch hunt, unconstrained by law or Constitution, will not stop until it can brand someone as a witch. And an unbridled inquisition will not stop until it finds a heretic. The Constitution simply never entrusted the people who run the government with this awesome power. Rather, in the Fourth Amendment, it prohibited it.

If the right to life, liberty and the pursuit of happiness — which are the stated reasons for forming the United States of America in the first place — mean anything, they mean that we all possess the inalienable right to be different and the inalienable right to be left alone. Neither of these rights can be honored when the government knows all. And when the government knows all, and doesn’t like what it knows, we will have an authoritarian state far more odious than any history has ever known.

On the face of an all-knowing secret government are large and awful eyes — and no smile.

Reprinted with the author’s permission.

The Best of Andrew P. Napolitano

Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.

Copyright © 2013 Andrew P. Napolitano

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They Want to Abolish Free Speech

3 Oct
 

They Still Don’t Get It

It ain’t so much the things we don’t know that get us in trouble. It’s the things we know that ain’t so.

–   Artemus Ward

I blogged, awhile back, on the comment made by a top federal official who, in responding to Edward Snowden’s Internet release of top-secret NSA documents, said that the government would be able to secure the return of such information. The implication was that the government could order Internet providers to reverse the processes by which such documents were distributed to millions of Internet users. Underlying this claim is the apparent belief that Internet providers function as a kind of storehouse of various kinds of information, to which users apply for access. It is not an exaggeration, in their world, to analogize a provider – such as Google – as a public library, making stored information available to users, and being able to demand its return to the “library.”

This bit of nonsensical thinking is currently being promoted by another faction that seeks legislation allowing teenagers to “erase” or “retract” e-mails or blogs they had earlier put out into the Internet. The California legislature has already been suckered into participating in such delusional thinking by enacting a statute providing such a “right,” and efforts are underway to get Congress to do the same. At the request of a teenager, prior messages that might later prove embarrassing to him or her could be erased from the Internet.

Foolishness of this sort is a reminder of just how far out of touch with reality are those who continue to insist upon the idea that society can be effectively managed by the pyramidal structuring of people’s lives. Desperate to reinforce the top-down weltanschauung from which they invariably think and act, these people are not inclined to allow reality to interfere with their fantasies. If they had any basic understanding of the nature of the Internet, they would at once see the absurdity of their proposals. The Internet is not a place, but a system in which words and other images can be freely communicated to any who desire to receive them and, in turn, to respond to and/or pass them on to others. Like the old common law proposition that no longer protected a copyright once a written work had been “published” (i.e., made public), releasing information, ideas, or other material into the Internet is to place them beyond the control of their author or of anyone else. Those who believe that Google controls, directs, possesses, or otherwise manages the substance of what is put into the Internet haven’t the slightest idea of the anarchistic nature of this system that allows men and women to directly communicate with one another without the intercession of authorities. Like the early-morning warblings of a meadowlark, or the evening release of jasmine scents, words put into the Internet are no longer subject to the control of, or the return to, their authors.

There is no way that the NSA’s secrets can ever be “brought back” into the exclusive control of the state, any more than can Willie Zilch’s teenage Internet comments be erased from the memories of those who had once read them, downloaded them, or sent them on to others. Those who believe otherwise may soon be informing us of a means by which our virginity may be restored!

While the study of chaos and complexity informs us that the interplay between our thinking and the nonlinear nature of our world makes events both uncertain and unpredictable, those who insist upon the linear control and management of the world will continue presenting us with their top-down whimsical illusions as to how society should run. The harsh reality that terrifies such minds is that the antiquated vertical paradigm is collapsing, being replaced by a horizontal model. The coerced obedience to authority that centralizes decision-making in the hands of modern philosopher-kings, is eroding in favor of decentralized networking among men and women who voluntarily cooperate with one another. Those who cling to the traditional model see social order as a quality to be dictated, while the emerging paradigm focuses upon order that arises spontaneously through human interaction. The content of vertically-structured order awaits the outcome of elections, while the horizontally-networked order depends upon focused minds prepared to identify, act upon, and create informal patterns of orderliness.

I hesitate to speculate on additional foolishness that the top-down crowd might spring on us as they continue their desperate fight against the real “terrorist threat” to their lives: the fear that increasing numbers of people will find the world of the decentralized and the horizontal more suited to their interests, and ignore – or abandon entirely – the violent and regimented systems of institutionally-dominated order. People who believe that words, communicated to others, can be retrieved and returned from whence they originated, are capable of all sorts of Alice-in-Wonderland fantasies. If the Internet’s capacities for the decentralized sharing of ideas, information, and other expressions of conscious thought sufficiently terrorize our rulers, perhaps an all-out war on the content of human consciousness awaits us.

George Orwell’s prescience may be resorted to by the political  classes in proposing what might be called a federal Ministry of Truth. Among the agencies that might be subsumed within this department are the following:

[1] Internet Retrieval Agency. This bureau would involve itself in recovering anything published on the Internet that displeases the established powers.

[2] Internet Gatekeeper Authority. This office – long desired by Hillary Clinton – would have to approve both the author and the content of anything to be placed on the Internet. In keeping with Hillary’s concern that not just anyone should be permitted to put whatever they want onto the Internet, would-be Internet contributors would first be required to obtain a license from this agency. As part of the licensing process, a background check would be conducted on the applicant to make certain that only “responsible” information and ideas would be allowed onto the Internet. That the Internet already has a “gatekeeper” in the form of the “Enter” key on each individual’s keyboard will, of course, be ignored, as such powers remain in the hands most feared by the ruling classes: independent individuals.

[3] Department of Memory-Hole Management. This agency would be the most important part of the Ministry of Truth because of its assigned role in eliminating the confusion and uncertainty that arise from the numerous and varied ideas and information that accompany the free expression of opinions. There is already enough chaos in our lives, it would be argued, without people having to distinguish truth from falsehood on their own. This office would be staffed by men and women from academia, thus assuring support from the professional intellectuals whose certified academic credentials will help persuade others that “truth” will be served by this program.

Any ideas, news stories, documentary evidence, published opinions, or other information that does not serve established interests will, even if previously approved, be relegated to what Orwell called the “memory-hole.” Did FDR manipulate the Japanese government into attacking Pearl Harbor, thus providing  him the excuse to enter World War II? If a “yes” answer is useful to the ruling classes, the evidence will be allowed to stand, just as a “no” answer will forever remove it from public view.

[4] Department of Intellectual Standards and Security. Working closely with the Department of Memory-Hole Management, this agency’s function will be to identify and standardize what constitutes “truth” in society, thus relieving the populace of the insecurity occasioned by the diversity of thought and ideas from which they would have the burden of making individual choices. Part of this department’s operations will include the Division of Intellectual Ecology, whose purpose will be to cleanse the intellectual environment of “impurities” generated by thought that pollutes the New World Order’s societal collective. Refraining from labeling such actions as “censorship” or “book-burning” – i.e., giving them different names – will relieve any anxieties harbored by Boobus.

For those whose minds are unable or unwilling to abandon their individualized pursuits of understanding, this department will provide Intellectual Recovery Services (aka psycho-surgeries) to remove mental barriers to the transformation of their thinking. When questioned about this practice, its supporters will defend it as being more civilized than burning deviants at the stake! Such services will, of course, be covered as part of the system of universal healthcare.

Boobus will also take comfort in being told that the Ministry of Truth will be devoted to the preservation of First Amendment guarantees. Far from restricting freedom of expression, the state will promote it by requiring every citizen to engage in “affirmative action” to facilitate it. Once a year, every man and woman will be obliged to report to an enclosed facility maintained by the Office of First Amendment Protection Services, where they will be allowed to speak their minds on any subject. In order to protect each speaker from the harassment, heckling, invasion of privacy, or violent reactions of others, no other persons will be allowed into the facility – to be known as “free speech zones” – with armed police guards present to protect the rights of speakers.

An important function of the Intellectual Standards and Security Department will be to license all persons who desire to speak in public (i.e., audiences of two or more persons). In order to elicit the support of conservatives, an exception will be granted to all persons who wish to speak to one another in a family setting. This exemption will, of course, leave open for debate the question of whether gays and lesbians qualify as “families,” thus preserving one of the many conflict-ridden issues that pervade society.

The licensing of speech will be defended by those enamored of government regulation of broadcasting, as well as mandated product standards. “Manufacturers may not make false or misleading claims about their products,” we will be reminded, “so why shouldn’t the same requirements for truth-telling apply to speech? Are you against truth?” In order to assure uniformity in the formulation of speech standards, the Department of Education will be brought into the Ministry of Truth, as will the Federal Communications Commission, whose regulatory and licensing powers will be extended to newspapers and other print media. In this way, the confusion and uncertainty that prevail when differing ideas and values are allowed expression will be minimized.

Does all of this sound preposterous and unworkable? If the statists believe that they are able to restore our reputations – and virginity? – and erase our past peccadilloes from public view, why would we not expect them to extend and universalize such beneficent powers? Isn’t the enforced uniformity of thought and conduct the essence of what it means to live in a free and creative society? Is our Brave New World New World Order to be held back by individuals whose thinking does not conform to an institutionally-mandated consensus of opinion?

Butler Shaffer [send him e-mail] teaches at the Southwestern University School of Law. He is the author of the newly-released In Restraint of Trade: The Business Campaign Against Competition, 1918–1938, Calculated Chaos: Institutional Threats to Peace and Human Survival, and Boundaries of Order. His latest book is The Wizards of Ozymandias.

Copyright © 2013 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit and a live link are given.

Free Speech in America

13 Sep
 

Annals of the Police State

By

Intro by Dick Fitz

Edward Snowden. Julian Assange. Chelsea (née Bradley) Manning. Barrett Brown? If you are unfamiliar with the last name, you aren’t alone. Brown is just another invisible victim of our metastatic police state, facing a life in prison for undefined crimes.

Brown is a journalist and self-appointed spokesman for the cyber collective “Anonymous”, the group that has tried to expose government and corporate crimes. Many of them are young men aware of the dangers posed by an unlimited government spy system, and they loosely collaborate to confound and disrupt those systems. In September 2012, Brown was arrested for crimes ranging from “identity theft” to “threatening an officer”. The nature of those “crimes” range from the fact that he linked to a website where hundreds of credit card details were stored, a YouTube video where he threatens to expose the misdeeds a law enforcement official, and the fact that he brought attention through his writing to a huge cache of documents “stolen” from the company Stratfor. He faces 17 counts for crimes such as obstruction of justice to identity fraud, and a 110 year prison sentence.

His main “crime” appears to be that he exposed an FBI “sting” against fellow dissident Assange before the FBI could entrap him.

He faces additional charges if he speaks out publicly about his case- the Federal judge in charge has forbidden him from speaking out about the details of his arrest, incarceration and possible (probable?) imprisonment. This “gag ruling” was issued last week because the judge ruled that he was using the media to defend himself! Thankfully Alexander Zaitchik of Rolling Stone spoke with him at length before the gag order was issued, and his article is at the link.

This case against a journalist should scare anyone who posts information critical of the government.

Here is a link to a recent short history of Brown-

http://www.fair.org/blog/2013/09/10/barrett-brown-cant-talk-about-why-the-govern/?utm_source=rss&utm_medium=rss&utm_campaign=barrett-brown-cant-talk-about-why-the-govern

Here is a link to a long and detailed article from Rolling Stone that details his case, performed before the gag order from the government.

http://www.rollingstone.com/culture/news/barrett-brown-faces-105-years-in-jail-20130905