Judge Andrew Napolitano

Judge Andrew Napolitano

Watergate, 21st-century style

by Judge Andrew Napolitano on Thursday, May 8, 2014

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

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

The attack on the consulate occurred on Sept. 11, 2012, the 11th anniversary of 9/11, just as the American presidential election campaign between Obama and Gov. Mitt Romney was getting under way. Two weeks prior to the attack, Obama had assured his political supporters for the hundredth time that al-Qaida was on the run, its leadership had been subdued, and that he was the cause of that.

The last thing his campaign managers wanted to confront in the middle of September was an al-Qaida-orchestrated attack on American property in the Middle East in which our ambassador was murdered.

Yet, that’s what confronted the Obama campaign managers. So, they concocted a narrative that they could comfortably live with and that they believed the American public would accept.

Susan Rice, then the U.S. ambassador to the United Nations, relayed the narrative. Rice either permitted herself to become a political tool or materially lied to the American public when she told five Sunday morning talk shows on Sept. 16, 2012, that the attacks in Benghazi were not acts of terror and were not aimed at the ambassador, but rather were the spontaneous and unplanned reaction of a street crowd to a cheap anti-Muslim Internet clip that some jerk in California had made earlier that summer.

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

It worked.

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

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

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

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

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

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

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

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

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

Andrew P. Napolitano, 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 www.creators.com.

A legal way to kill?

by Judge Andrew Napolitano on Wednesday, April 23, 2014

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

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

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

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

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

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

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

Until now.

Now, we have a president whose principal law enforcement and intelligence officers have boasted that the president relies on a legal way to kill people without the time, trouble and cost of due process. The president himself, as well as the attorney general, boasted of this, as did the director of national intelligence and the director of the CIA.

Yet, when asked by reporters for The New York Times for this legal rationale, Holder declined to provide it. He argued that the legal rationale for the presidential use of extra-judicial killings was a state secret, and he dispatched Department of Justice (DoJ) lawyers to court, where they succeeded in persuading a federal judge in New York City to deny the Times’ application to order the government’s legal rationale revealed.

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

The judge who dismissed the case obviously was uncomfortable doing so. She wrote:

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

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

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

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

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

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

Andrew P. Napolitano, 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 www.creators.com.

OK to spy on us, but not the Senate?

by Judge Andrew Napolitano on Thursday, March 20, 2014

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

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

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

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

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

The point I address here is that Feinstein’s outrage was directed at CIA domestic spying for the wrong reasons.

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

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

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

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

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

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

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

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

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

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

We are now well beyond that beginning.

Andrew P. Napolitano, 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 www.creators.com.

Secrecy and accountability are foes

by Judge Andrew Napolitano on Monday, March 17, 2014

The government is caught up in another scandal in which federal agents have been accused of hacking into one another’s computers.

When the CIA was established in 1947, Congress and President Truman were concerned that it might not confine itself to spying. Its sole statutory purpose was to steal secrets from foreign governments so that the U.S. would know what they were planning and could prepare for any behavior adverse to American government interests.

By its nature, it was operating in secret, and because it lacked transparency, it lacked accountability. One of the statutory mechanisms to achieve accountability was to require the CIA to report to two committees of Congress, but in secret.

Over the years, as sometimes happens between regulators (the congressional committees) and the entity to be regulated (the CIA), they developed a chummy relationship. In this case, the relationship has been so chummy that at the behest of Presidents Bush and Obama the CIA has gone to the Senate and House Intelligence committees, instead of going to the full Congress, for permission to torture prisoners, kill Americans with drones and fight small-scale wars — all well beyond the statutory mission of stealing secrets.

The members of these committees are senators and representatives who apparently approve of the CIA’s expanded role. Because the committees meet in secret, we don’t know what the CIA requested, whether any members objected to any requests, whether the committees denied any requests or even precisely what was approved. The members of Congress who are on these committees have sworn oaths of secrecy.

These are the same committees that have given permission to the National Security Agency (NSA) to spy on all Americans all the time, so we are probably justified in concluding that the committees and the intelligence agencies they supposedly regulate are more attuned to governmental power than to personal liberty.

The power of these committees effectively has established them as mini-Congresses that are unrecognized by the Constitution and are well outside its confines.

The Constitution provides that “all legislative powers” are granted to Congress, not to a select few in Congress, but to Congress as a whole. This is a serious constitutional issue because Congress is mostly transparent and its members are directly answerable to the voters, yet the secrecy of these committees prevents their members from discussing what they know with other members of Congress, unless done openly on the floor of the House or Senate, which they rarely do.

The mania for secrecy and the natural inclination of unaccountable governmental entities to grow rather than stabilize or shrink have resulted in the present state of affairs.

The present state of affairs has 95 percent of Congress in the dark about what the CIA is doing and the CIA getting its authority to exceed its statutory limitations from the other 5 percent. But a dispute has arisen between the CIA and the Senate Intelligence Committee over the nature and extent of the CIA detentions and use of torture during the Bush years. In February 2009, the Senate Intelligence Committee decided to investigate the CIA.

After CIA stonewalling and after learning that a senior CIA official destroyed much evidence of torture, the Senate Intelligence Committee insisted on examining the CIA’s secret files to learn what it did to those prisoners in its custody and what evidence was destroyed. Torturing prisoners and destroying government records are federal crimes.

In order to facilitate the Senate investigation, the CIA was instructed to make its records digitally available to investigators, which it did at an unmarked subterranean facility in Virginia.

There, investigators have spent many months looking at CIA computer records of its Bush-era interrogation procedures. In the course of doing so, they learned that their computers in the CIA’s secure facility — the ones they were using to examine CIA files in the subterranean room — were hacked.

It appears to the Senate investigators that the hackers were CIA agents wanting to learn what the investigators found out about them. The CIA counters that the investigators actually hacked into CIA computers when they examined far more materials than the CIA had agreed to make available.

This is more than a schoolyard brawl. This is the unbridled and likely unlawful use of government computers and classified materials by CIA employees trying to dampen the enthusiasm of their regulators, or by Senate investigators accessing classified materials to which they may not be entitled.

Either way, this is a violation of the Fourth Amendment’s prohibition of warrantless searches and seizures. Any other persons who did this would be indicted for hacking. Because all of this is so secret, we don’t know whether the Department of Justice is looking into who broke what laws.

But we do know that like its cousin the NSA, the CIA often acts above the law. It does so knowing that indictments for torturing, destroying evidence or computer hacking are unlikely, as any trial would expose the depths of this skullduggery, the unconstitutional system of mini-Congresses and the secrets these employees are trying to keep from their employers — the American people.

In a democracy, the government must be accountable to the people it serves. Secrecy and accountability are enemies. The natural right to know what the government is doing means that secrecy must be minimized. A Congress that rubber-stamps what secret agents want it to do by a secret procedure is a dangerous mix that will impair personal liberty in a free society.

In our post 9/11 world, the government has gotten away with hiding its worst behavior behind a veil of secrecy, publicly justified by the fears of a loss of safety that it has instilled in the public. That is not condoned by the Constitution. Under the Constitution, a free people are always entitled to know what the government is doing, and we are entitled to a government that obeys the laws it enforces against the rest of us so we can replace the government when it fails to protect our freedoms.

Andrew P. Napolitano, 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 www.creators.com.

Another layer of liberty lost

by Judge Andrew Napolitano on Wednesday, February 26, 2014

In the months since Edward Snowden revealed the nature and extent of the spying that the National Security Agency (NSA) has been perpetrating upon Americans and foreigners, some of the NSA’s most troublesome behavior has not been a part of the public debate.

This behavior constitutes the government’s assaults on the American legal system.

Those assaults have been conducted thus far on two fronts, one of which is aimed at lawyers who represent foreign entities here in America, and the other is aimed at lawyers who represent criminal defendants against whom evidence has been obtained unlawfully and presented in court untruthfully.

Investigative reporters at The New York Times recently discovered that the NSA has been listening to the telephone conversations between lawyers at a highly regarded Chicago law firm and their clients in Indonesia.

The firm, Mayer Brown, has remained publicly silent about the revelations, as has its client, the government of Indonesia. But it is well known that Mayer Brown represents the government of Indonesia concerning trade regulations that govern exports of cigarettes and shrimp to the U.S. The lawyers on the other side of the bargaining table from Mayer Brown work for the federal government, which also employs, of course, the NSA.

Can the NSA lawfully tell lawyers for the government who are negotiating with Mayer Brown lawyers what it overheard between the Mayer Brown lawyers and their client? The answer, incredibly, is: Yes.

Federal rules prohibit the NSA from sharing knowledge with lawyers for the federal government only about persons who have been indicted. In this case, Mayer Brown is attempting to negotiate favorable trade relations between Indonesia and the U.S., and the lawyers for the U.S. have the unfair advantage of knowing in advance the needs, negotiating positions and strategy of their adversaries. In the Obama years, this is how the feds work: secretly, unfairly and in utter derogation of the attorney-client privilege.

For 100 years, that privilege — the right of lawyers and their clients to speak freely and without the knowledge of the government or their adversaries — has been respected in the U.S., until now. Now, we have a lawyer who, as president, uses the NSA to give him advance warning of what his office visitors are about to ask him. And now we have lawyers for the federal government who work for the president and can know of their adversaries’ most intimate client communications.

This is profoundly unfair, as it gives one side a microscope on the plans of the other. It is unwise, too, as clients will be reluctant to open up to counsel when they know that the NSA could spill the beans to the other side

In the adversarial context, for the system to work fairly and effectively, it is vital that clients be free to speak with their lawyers without the slightest fear of government intrusion, particularly when the government is on the other side of the deal or the case.

If you have spoken to a lawyer recently and if that lawyer is dealing with the federal government on your behalf, you can thank the constitutional scholar in the Oval Office for destroying the formerly privileged nature of your conversations.

But that is not the only legal protection that President Obama has destroyed.

In 2012, the U.S. Supreme Court heard oral argument in a case in which journalists in the pre-Snowden era challenged the government’s spying on them. The government won the case largely because it persuaded the court that the journalists did not have standing to bring the lawsuit because, the court ruled, their fears of being spied upon were only hypothetical: They suspected that their communications with their sources were being monitored, but they couldn’t prove it. In this post-Snowden era, we now know that the journalists in that case were being spied upon.

Nevertheless, during the oral argument in that case, government lawyers told the high court that should government prosecutors acquire from the NSA evidence of criminal behavior against anyone whom they eventually would prosecute and should they wish to use that evidence in the prosecution, the Justice Department would inform defense counsel of the true source of the evidence so that the defendant would have the ability to challenge the evidence.

Yet, last week, in a case in federal court in Oregon, the same Justice Department that told the highest court in the land last year that it would dutifully and truthfully reveal its sources of evidence — as case law requires and even when the source is an NSA wiretap — told a federal district court judge that it had no need or intention of doing so. If this practice of using NSA wiretaps as the original source of evidence in criminal cases and keeping that information from the defendants against whom it is used is permitted, we will have yet another loss of liberty.

Federal law requires that criminal prosecutions be commenced after articulable suspicion about the crime and the defendant. Prosecutions cannot be commenced by roving through intelligence data obtained through extra-constitutional means. That is the moral equivalent of throwing a dart at a dart board that contains the names of potential defendants and prosecuting the person whose name the dart hits.

For the past 75 years, federal prosecutors have not been permitted to use unlawfully obtained evidence in criminal cases, and they have been required to state truthfully the sources of their evidence so that its lawfulness can be tested. This rule generally has served to keep law enforcement from breaking the laws it has sworn to uphold by denying to its agents the fruits of their own unlawful activity.

Liberty is rarely lost overnight. It is lost slowly and in the name of safety. In the name of keeping us safe, the feds have spied on the lawyers who negotiate with them, lied to the lawyers whose clients they are prosecuting and misrepresented their behavior to the Supreme Court. As far as the public record reveals, they have not corrected that misrepresentation. They have done all of this in utter defiance of well-settled law and procedures and constitutional safeguards.

What will they do next?

            Andrew P. Napolitano, 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 www.creators.com.

This is a lawless presidency

by Judge Andrew Napolitano on Thursday, February 20, 2014

The political philosopher Edmund Burke once remarked that all that is necessary for the triumph of evil is for good folks to do nothing.

A glaring example of the impending triumph of a constitutional evil that could be stopped by folks who have been largely silent is the tyranny coming from the White House. And the folks who can stop this and are doing nothing about it are our elected representatives in Congress.

The Constitution is the supreme law of the land. It established the three branches of government, and it delegated “all legislative powers” to Congress. American law rarely uses the word “all.” Yet the Framers chose that word precisely to confine law writing to Congress and to prevent a president from altering federal law by the selective manner of his enforcement of it and thereby effectively rewriting it.

The same Framers sought to guard against the same evils by compelling the president to swear at the commencement of his terms in office that he will “faithfully” enforce the laws. The use of the word “faithfully,” like the use of the word “all,” is intended to assure voters that they can count on a president who will do the job they hired him to do by enforcing federal laws, not evading them, and by enforcing them as Congress has written them, not as the president might wish them to be.

To be fair, many presidents, from the sainted Thomas Jefferson to the tyrannical FDR, put their own spin on federal law. Jefferson pardoned all those convicted under the Alien and Sedition Acts because he hated a statute that punished free speech and he boasted that he would not enforce that part of the acts (they expired under his watch).

And FDR, when barely two weeks in office, issued an executive order criminalizing the possession of gold because he foolishly thought it would stabilize the banks, until an adviser reminded him that only Congress can write criminal laws (which he then persuaded Congress to do).

Yet in President Obama we have a president whose personal interferences in the enforcement of federal laws reveal his view that he can rewrite them and even nullify them.

Presidential law writing violates the presidential oath of office, steals power from Congress, disrespects an equal branch of the government and, when unchecked, accumulates such power in the executive branch that it effectively transforms the president into a menacing tyrant who rejects his constitutional obligations and limitations.

Obama bombed Libya without a declaration of war from Congress. This arguably brought down the Gadhafi government, which led to the current state of lawlessness there, which produced the environment in which our ambassador was murdered in Benghazi in 2012 and established a dangerous precedent because Congress remained officially silent.

He has told the 11 million illegal immigrants who are here and subject to deportation that if they comply with a new set of rules they will not be deported. The constitutional problem is that the president wrote those rules. Only Congress can craft such rules, and by the president’s doing so, he has schooled immigrants in how to avoid compliance with federal law.

The president has used drones to kill Americans, but claims he has done so lawfully because he complied with secret rules that he crafted. Under the Constitution, if the president wants someone dead, he must afford the person due process or ask Congress to declare war on the country housing the person. No worries, he says — he has followed the secret rules that he wrote to govern himself when deciding whom to kill.

The president’s agents now acknowledge that they spy on all of us all the time, including members of the judiciary and Congress. This, too, was done pursuant to a secret presidential directive, secretly approved by judges acting as clerks and not under the Constitution, and by a dozen members of Congress sworn to secrecy. No law authorized this, and the president won’t discuss it meaningfully, except to condemn its revelation.

And in a series of salvos that hit home, the president has modified the Affordable Care Act (Obamacare) 29 times, by changing its various dates of effectiveness for some but not for others, by changing the meanings of terms for some but not for others, and even by diluting the signature obligation we all have to obtain the platinum insurance policies it commands for some and not for others. He has done all of this on his own, with no input from Congress. He has even threatened to veto any congressional effort to enact into law the very changes he alone has made.

His latest assault on the Constitution consists of a plan by the Department of Homeland Security, revealed earlier this week, effectively to follow us as we drive on public roads by photographing the license plate of all motor vehicles. This, too, was formulated without congressional approval or constitutional authority.

And while all of this is going on, Congress largely sits as a potted plant. In the Senate, Sens. Rand Paul, Ted Cruz and Mike Lee have complained long and loud, but Senate Majority Leader Harry Reid will not permit legislation to address presidential lawlessness to reach the Senate floor. A few dozen Republicans in the House have complained, but Speaker John Boehner will not permit the House to address corrective legislation. Institutionally and officially, Congress is sleeping.

Can you imagine how a Democratic Congress would have reacted if Ronald Reagan had instructed the IRS to cease collecting capital gains taxes so as to spur economic activity; or how a Republican Congress would have reacted if Bill Clinton had instructed the IRS to add a 1-percent rate increase to the tax bills of billionaires so as to close a budget gap?

These are dangerous times because this is a lawless presidency and a pliant Congress. The president’s willingness to violate the Constitution publicly calls into question his fitness for office. And that deafening silence from Capitol Hill manifests a spineless refusal to preserve constitutional government.

The whole purpose of dividing and separating governmental powers is the preservation of personal liberty by preventing the accumulation of too much power in one branch or, heaven forbid, in one person. Whoever permits this to take place lacks fidelity to the Constitution, is unworthy of holding governmental power in a free society and should be removed from office.

            Andrew P. Napolitano, 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 www.creators.com.


Delivering us to tyranny?

by Judge Andrew Napolitano on Wednesday, February 5, 2014

Can the president legally bypass Congress and rule the government by decree?

The answer to the question above is: No. But you wouldn’t know that by listening to President Obama.

In the past three weeks, the president has made it clear how he plans to run the executive branch of the federal government in the next three years: with a pen and a phone.

In a menacing statement at a Cabinet meeting last month, as well as during his recent State of the Union address and in a pre-Superbowl interview with my Fox News colleague Bill O’Reilly, the president has referred to his pen and his phone as a way of suggesting that he will use his power to issue executive orders, promulgate regulations and use his influence with his appointees in the government’s administrative agencies to continue the march to transform fundamentally the relationship of the federal government and individuals to his egalitarian vision when he is unable to accomplish that with legislation from Congress.

He has carried out that threat already. In June 2012, facing a presidential election campaign that he feared he might lose and wishing to keep socially conservative Hispanics from voting for Mitt Romney, the president directed the Department of Health and Human Services (HHS) — the same folks who failed miserably at rolling out Obamacare — to establish standards of behavior for millions of illegal immigrants, which, if followed to the government’s satisfaction, would get them off of government deportation lists.

To be sure, deportation can be ruinous, particularly to a family with children who were brought here as infants and have become fully Americanized. But the conditions for deportation, and for avoiding deportation, can only be established by Congress, not by the president or his appointees.

When he lays down a list of conditions that permit persons in America to avoid complying with federal law, he is not enforcing the law; he is rewriting it. Only Congress can lawfully establish the circumstances under which those who are candidates for deportation may legally avoid it.

As well, when the president creates the conditions for avoiding compliance with federal law, he can hardly be said to be enforcing it. Yet, enforcing federal law is the heart of the president’s job. The Framers were so concerned with the potential of presidents to decline to enforce laws with which they disagreed that they inserted the word “faithfully” in the presidential oath when describing his enforcement obligations, and then they inserted the oath itself into the Constitution.

The inescapable conclusion from this is that the Framers intended American presidents to enforce all of the laws that Congress has written, even those they dislike, even those they condemn, even those that may frustrate their friends, even those that may harm their political interests.

On the other hand, American presidents have some discretion when it comes to enforcing laws and may set priorities that are not inconsistent with the laws themselves. Obama, like all of his predecessors, has issued dozens of executive orders and signed off on thousands of regulations that have been lawful and helpful. That’s because, as president, he is the chief executive officer of the executive branch of the federal government and is largely responsible for the professional behavior of the three million persons who work under him as they follow his lead in enforcing federal law.

Thus, executive orders that complement, supplement and further the laws that Congress has enacted, orders that guide officials in the executive branch as to the president’s wishes, priorities and goals, orders that clarify but do not contradict federal laws, can actually be helpful — and such orders are invariably lawful and constitutional.

But Obama seems to have had different kinds of orders in mind when he spoke of his pen and his phone — ones much more akin to the HHS regulations on avoiding deportation — and he has made no effort to hide his intentions. Two months ago, as the effective date of Obamacare was about to set in and after weeks of denying the obvious, the president acknowledged that the rollout of Obamacare was a disaster and that the cancellation of 6.2 million soon-to-be substandard health insurance policies was profoundly contrary to his assurances that that would never happen and was acutely harmful to those who lost their coverage.

To counter the effects of the rollout and the cancellations, the president told insurance companies to reinstate the substandard insurance policies for a year until the rollout could be corrected. Thus, on his own, he attempted to change the effective date of the onset of Obamacare from Jan. 1, 2014, which is the date in the law after which the substandard policies are unlawful, to Jan. 1, 2015, which is the date he now prefers.

The president has reminded us countless times that he taught constitutional law at the University of Chicago Law School and therefore understands the Constitution. He doesn’t act like he understands it. He surely knows that only Congress can change the effective date of a law, and that he is utterly without power to do so, no matter his purpose.

He revealed the corruptibility of power when three libertarian Republicans in Congress came to his assistance and he rebuffed them. Shortly after the president told insurance carriers to disregard the onset date of Obamacare, Sens. Rand Paul, R-Ky., Ted Cruz, R-Texas, and Mike Lee, R-Utah, offered legislation in Congress to delay the onset of Obamacare lawfully for one year and thus lawfully permit the return of the 6.2 million canceled policies for one year — and Obama threatened to veto that legislation should Congress pass it.

The same president who claims the unlawful power to rewrite federal law on his own would use his veto power to prevent Congress from doing so lawfully. His preferences surely constitute no less than a perversion of the roles assigned to the branches of government by the Constitution.

How dangerous is a president who wants to rule by pen and phone? Where will he strike next? How will this end? Will this deliver us to tyranny?

Andrew P. Napolitano, 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 www.creators.com.

Obama’s NSA spying speech rings hollow

by Judge Andrew Napolitano on Friday, January 24, 2014

When President Obama chose a Friday before a three-day holiday weekend to address a matter as profound as the NSA spying scandal, I suspected he would raise issues that he hoped the media would ignore.

That’s because the Reagan White House did a study in the early 1980s and concluded that Fridays are low-value news days and thus a good time to bury the lead, so to speak. Every president since then has followed that lead.

Instead of addressing the massive violations of the natural and constitutionally protected right to privacy, instead of acknowledging that but for the personal courage of Edward Snowden his administration would still be pulling the wool over our eyes, instead of reestablishing the serious constitutional and civil liberties bona fides he established for himself as a U.S. senator, the president defended his massive spying as a necessary tool in the fight to maintain national security and offered only a placebo to its critics.

Just how massive is this scandal? The Washington Post has reported the NSA hacks into 500,000 American buddy lists and 600,000 American address books every day, and the Guardian of London reported last week the NSA seizes 200,000,000 American text messages every day. This is in addition to seizing the content of all cellphone- and landline-generated telephone conversations and copies of all emails sent or received in the United States. And all of that is in addition to seizing all bank records, utility bills and credit card bills of everyone in the United States.

By not addressing or refuting any of this, the president obviously plans to continue it. He also plans to reject the most basic principles of American government. If the government derives its powers from the consent of the governed, as the Declaration of Independence declares it does, and if the governed lack the lawful authority to hack and seize our neighbors’ texts and phone calls and utility bills, how could we have given that authority to the government?

In the president’s world, that’s an easy question to answer: Do it in secret. Enact legislation that lets a dozen NSA-sycophantic members of Congress speak for the legislative branch, tell only that dozen about the spying in secret and swear them to secrecy. Enact legislation that lets a dozen secret judges issue search warrants based on the government’s wishes rather than probable cause, and seek permission from any one of those judges in secret and swear them to secrecy. And then in public deny and lie and change the subject.

In a thinly disguised effort to change the subject, Obama’s Friday (Jan. 17) speech focused on where the seized data is stored, rather than on whether the government in a free society is empowered to collect it. He proposed that the data seized by the NSA be stored at non-government locations that he did not identify and kept there and be made available to the NSA after approval by the secret Foreign Intelligence Surveillance Act (FISA) court.

Even if a third party capable and willing to store this data could be found, the additional step to the FISA court is no additional constitutional protection whatsoever. Every federal and state court in the United States follows the constitutional requirement that whenever any government is seeking a search warrant to conduct surveillance, the government must present particularized evidence identifying its target, and the evidence must constitute probable cause of criminal behavior on the part of that target; every court, that is, except the FISA court. That court issues general warrants that do not name a target and are based on the NSA’s wishes, rather than evidence of probable cause.

So, that silent exhale of relief from the NSA last week was generated by the realization that this third-party storage proposal will not restrict the massive spying one iota.

Added to this placebo is the president’s proposal to employ a Defender of the Constitution (what a great job title!) to appear before the FISA court, along with lawyers for the NSA, and argue against the NSA’s wishes. This is another diversion that would add another level of unconstitutional and irrelevant complexity to the present scheme.

In the present scheme, the persons on the FISA court may be federal judges, but they are performing clerical functions, not judicial functions. That’s because, unlike state courts, which are courts of general jurisdiction, the jurisdiction of all federal courts can only be invoked when there are real cases and controversies brought to them. If the Defender of the Constitution appeared in front of the FISA court, he or she could only do so by representing a real client in a real dispute with the federal government. But the NSA does not identify its targets, much less deal with their lawyers. The president’s proposal would turn this non-court court into a law school moot court exercise.

His third proposal adds insult to injury. He offers to stop the NSA from doing to foreign leaders what it has been doing to Americans. No doubt, that is to enable him to save face with his selfie-snapping European colleagues. But it hardly smacks of understanding the problem of massive spying. It may be an insult to spy on his fellow heads of state, and it may affect diplomacy with them, but stopping it hardly enhances the natural right to privacy of the rest of us.

This mass spying is uniquely and profoundly un-American and will continue to undermine our freedoms. I am not arguing here that all spying is illegal — just that spying on all of us is illegal. Why bother with the formality of warrants when they permit all spying all the time? Spying on anyone not named in a warrant, or employing a warrant not based on probable cause, is the hallmark of those totalitarian regimes against which we have fought our just wars and our cold wars.

Yet today, the government in America seems more like the former enemies we vanquished than the place of life, liberty and the pursuit of happiness the Framers established.

Andrew P. Napolitano, 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 www.creators.com.

The Nuns and the President

by Judge Andrew Napolitano on Friday, January 17, 2014

When the Framers were putting together the Constitution in Philadelphia in the summer of 1787, they knew the states would not adopt it without written guarantees that the new central government would respect natural rights.

The supporters of the Constitution promised political leaders in the states that the written guarantees would soon be added as amendments, and they were. By late 1791, the Bill of Rights was ratified and added to the new Constitution.

The purpose of the Bill of Rights was to assure all in America that their natural rights — areas of human choices for which a permission slip from the government cannot be required and in which the government cannot coerce compliance with its wishes — would not be impaired by the federal government. Since the ratification of the Fourteenth Amendment, the natural rights protected in the Bill of Rights generally have been insulated from interference by the states, as well.

All natural rights are of paramount importance to all persons. They are individualized personal gifts from the Creator and have been recognized as such in American law since Thomas Jefferson wrote in the Declaration of Independence that we are endowed with them by Him.

One of those rights guarantees the free exercise of religion. Indeed, the Free Exercise Clause in the First Amendment was written to ensure that the new government could not coerce persons to behave differently than their religious views informed their consciences, or punish them for not conforming to a government-mandated religious orthodoxy.

Generally, for almost 230 years, the federal government left us alone to choose freely our religious practices and to worship as we believe. Until now.

Today, the free exercise of religion is under attack by the government. When Congress enacted the Affordable Health Care Act — I prefer to call it Obamacare because it is President Obama’s brainchild, his signature legislation, and because there is nothing affordable about it — members of Congress must have known the law would impose obligations upon persons that would force them to engage in behavior in violation of their religious beliefs.

Obamacare, which has been upheld by the Supreme Court under a superficial and novel theory that permits the feds to regulate natural rights by taxing us when we do not do as they have commanded, requires all employers of 50 or more persons to obtain health insurance coverage for all of their employees that pays for birth control via contraception, sterilization and abortion.

The Little Sisters of the Poor are an order of Roman Catholic nuns who have taken vows of poverty, chastity and obedience. They operate nursing homes for those who cannot afford them and employ more than 50 persons. The sisters have objected to the requirement that they must pay for health insurance coverage that provides for birth control, as those payments directly violate Catholic teachings and beliefs.

In a pluralistic society, one would expect that the government would accommodate the sisters. In a free society in which everyone who works for the government takes an oath to uphold the Constitution, the feds have a legal obligation to accommodate them. In a political society in which many Catholics are Democrats who elected the Congress that gave us Obamacare, one would expect an accommodation. But we expect in vain, as the federal government has resisted the sisters mightily and asked the courts to turn down their pleas.

What is wrong with Obama that he would employ lawyers to do this?

For starters, he does not believe in natural rights. He accepts the perverse view — known as positivism — that our rights come not from God, but from the government. This is not an academic argument – as, in the president’s world, if the government is the source of freedom, then the government can restrict it. This is, of course, the opposite view from that of Judeo-Christian values, the Framers, the Constitution and American law; thus, it violates the oath of office the president took.

But just as troubling as his attitude about the origin of personal freedoms is the president’s attitude about the exercise of personal freedoms.

Throughout his presidency, he has taken the position that he, and he alone, possesses the power to dispense with the obligations of federal laws when they are too burdensome and even to ignore them. He has bombed other countries without congressional approval, spied on all Americans without lawful warrants specifying any of them, enforced environmental regulations that Congress declined to enact, and declined to enforce or delayed the onset of sections of Obamacare that offend his friends. He has done this for political reasons when his colleagues and supporters have asked it of him.

So, what about the nuns? Nuns who own no personal property, nuns who spend their lives ministering to the poor, nuns who will never have the need for contraceptive or sterilization or abortion services, nuns not involved in politics but deeply committed to well-formed consciences? Can he give them a break, too? In a word: No. His Department of (political) Justice has vigorously resisted the nuns and even mocked them. It has demanded that they assert in writing what their religious beliefs are and that they permit others to pay for the contraceptive, sterilization and abortion services they do not want, cannot use and profoundly condemn.

Our post-Obamacare world is dangerous for people informed by conscience and presupposing respect for natural rights. Where are the Catholic Democrats in Congress who voted for this monstrosity? Why are they silent or tacitly with the president? Where are all good people of conscience in this great clash between the nuns faithful to God and the president to politics?

If the government can tax you and me and selfless nuns for fidelity to long-held religious beliefs while exempting others because of their fleeting political beliefs, then the Free Exercise Clause of the First Amendment is meaningless. And our rights are in the hands of a congressionally enabled tyrant.

Andrew P. Napolitano, 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.”


A Government of Secrecy and Fear

by Judge Andrew Napolitano on Thursday, October 24, 2013

Every American who values the rights to life, liberty and the pursuit of happiness, every American who enjoys the right to be different and the right to be left alone, and every American who believes that the government works for us and we don’t work for the government should thank Edward Snowden for his courageous and heroic revelations of the National Security Agency’s gargantuan spying operations. Without Snowden’s revelations, we would be ignorant children to a paternalistic government and completely in the dark about what the government sees of us and knows about us. And we would not know that it has stolen our freedoms.

When I saw Snowden’s initial revelation — a two-page order signed by a federal judge on the FISA court — I knew immediately that Snowden had a copy of a genuine top-secret document that even the judge who signed it did not have. The NSA reluctantly acknowledged that the document was genuine and claimed that all its snooping on the 113,000,000 Verizon customers covered by that order was lawful because it had been authorized by that federal judge. The NSA also claims that as a result of its spying, it has kept us safe.

Read Full Article

Debt and Destruction

by Judge Andrew Napolitano on Thursday, October 17, 2013

From April 1917 to November 1919, when Woodrow Wilson borrowed $30 billion to fight World War I, he was able to do so because of the promise he made to lenders that the commitment to repay them would be backed by the full faith and credit of the United States government. At the time, the government’s total debt was about $14 billion; so Wilson’s painful gambit trebled it.

In reality, it was not the full faith and credit of the federal government that promised to repay; it was not the credit worthiness of the federal government at stake; it was not the federal government that paid back the money that was borrowed. That’s because the government has no credit or credit worthiness or disposable wealth. Only the taxpayers have that.

Read Full Article

Before You Rejoice…

by Judge Andrew Napolitano on Thursday, October 10, 2013

Before you rejoice that the government has seized an alleged terrorist in Libya who was indicted for planning the notorious 1998 U.S. embassy bombings in Africa, before you join the House of Representatives in a standing ovation for the Capitol Hill Police who killed a woman whose car struck a White House fence and who then drove away at a high speed, and before you commend the New York Police Department for quickly getting to the bottom of an alleged assault by a motorcycle gang that tormented a young family on a city street, please give some thought to the rule of law.

Last weekend, a team of Navy SEALs kidnapped a Libyan, Abu Anas al-Libi, off of a public street in Tripoli. The Navy men did not have a warrant for his arrest, did not have the permission of the local authorities or the Libyan government to carry out this kidnapping, and were unlawfully present bearing arms in public in Libya. Many of al-Libi’s alleged accomplices already had been arrested, prosecuted and convicted in the U.S. The U.S. could have sought his extradition, as it did with some of them, had President Obama not bombed the American-friendly government of Col. Moammar Gadhafi out of existence, without a congressional declaration of war.

Read Full Article

Government Looking for Witches Will Find Them

by Judge Andrew Napolitano on Thursday, October 3, 2013

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.

Read Full Article

Is the FISA Court Constitutional?

by Judge Andrew Napolitano on Thursday, September 26, 2013

After President Richard Nixon left office in 1974, a bipartisan congressional investigation discovered many of his constitutional excesses. Foremost among them was the use of FBI and CIA agents to spy on Americans in violation of federal law and the Fourth Amendment to the Constitution. Nixon argued that the government needed to monitor “subversives” in order to shore up the “national security.” As for breaking the law and violating the Constitution, Nixon defended himself by proclaiming in a now infamous post-presidency interview with David Frost that: “When the president does it, that means that it is not illegal.”

That Henry VIII-like statement was too much for Congress to bear in the Carter years, so it enacted the Foreign Intelligence Surveillance Act (FISA), which prohibited domestic spying unless the feds first obtained search warrants for surveillance from a federal judge sitting on a newly created FISA court. The FISA court, populated by sitting federal judges assigned there by the chief justice, was charged with issuing secret general warrants based upon secret evidence or no evidence and all in violation of the Constitution, which requires the presentation of evidence that constitutes probable cause of crime as the sole linchpin for the issuance of a search warrant.

Read Full Article

Spying and Lying

by Judge Andrew Napolitano on Thursday, September 19, 2013

When Edward Snowden first revealed the spying the NSA has been conducting on what was then thought to be only customers of Verizon, the government was embarrassed, but it reluctantly acknowledged that Snowden revealed a truth. He had, after all, displayed an accurate and faithful copy of a judicial order signed by a FISA Court judge directing Verizon to give billing information to NSA agents about its 113,000,000 American customers.

Not to worry, the government’s apologists offered, this is only telephone macro-metadata, meaning information about who spoke to whom, when they talked and for how long, and where they were when they talked, but not what they actually said to each other. When Gen. Keith Alexander, the head of the NSA, stated under oath at a House hearing that his spies lack the authority to capture content, he avoided addressing whether they have the ability to do so, because he knows they do. His boss, James Clapper, the director of national intelligence and a less finessed liar than the general, said under oath at a Senate hearing flatly that the feds were not gathering massive amounts of data about hundreds of millions of Americans, when he knew that they were. And President Obama himself has stated on a few occasions that the government “is not reading” your emails or “listening” to your phone conversations, even though he knows they can.

Since the essence of spying is stealing and keeping secrets, we should not be surprised when that essence is supported by deception and lying. But lying to one’s employers (the American people) is a fireable offense, and lying under oath (to Congress) is a criminal offense. And a government that lies over and over again to the people it is lawfully obliged to serve is not believable and leads to lawlessness.

Obama should have known better than to use Clintonesque language by denying that something “is” happening at the moment he is discussing it. In reality, Obama knows his spies have exceeded their authority under even a broad reading of the Patriot Act and the FISA laws and have grossly failed to comply with their oaths to uphold the Fourth Amendment.

That amendment — which requires judicially issued search warrants based on identifiable probable cause of unlawful behavior, warrants that particularly describe the place to be searched or the person or thing to be seized — was written to prevent all governmental dragnets, fishing expeditions, warrantless invasions of privacy and general warrants (those, like the FISA Court warrants, that do not name the place to be searched or the person or thing to be seized). It was animated by the Framers’ determination to prevent the new federal government from doing to Americans what the British had done to the colonists.

However, in some of my conversations with folks in the government, I have learned that when the government gathers intelligence in order to prevent the future occurrence of an act of domestic terror, as opposed to when it gathers evidence in order to solve a crime that has already been committed, it believes it is not subject to the constraints of the Fourth Amendment.

The feds have based their massive spying apparatus on a secretly stated and utterly ignoble lie — that the Constitution only restrains them when they are engaged in criminal investigations, and not for any other purposes. Such an argument is Stalinesque in its sweep, has no support in history, law or Supreme Court jurisprudence, and is a subterfuge concocted to dupe the public, the media and the judiciary into overlooking, accepting and authorizing the broadest governmental assault on constitutionally protected freedoms since the Alien and Sedition Acts.

We know that the Fourth Amendment was written to restrain the government for all purposes because the British government tormented the Framers and violated their right to privacy for many non-criminal-based governmental purposes, such as tax collecting, speech suppressing and intelligence gathering. The government’s argument, if accepted, would permit the government to engage in a vast array of unlawful human indignities from torture to pre-crime detention to the presence of the government in the bedroom, the boardroom and the confessional, so long as it was not trying to solve a crime. The reason you probably have not heard this argument is that the feds will only make it in secret to their favorite secret court.

In March 2009, Judge Reggie B. Walton, the chief judge of that secret court, the FISA Court, complained in secret about what the court had been told in secret. In that court, only NSA agents and Department of Justice lawyers appear. The court’s only source for its facts and legal arguments is the NSA. We don’t know what deceptions the NSA visited on the court from which it receives general warrants and the involvement of which forms a basis for Obama’s laughable argument that his spies are supervised by the judiciary. But we know that Walton was lied to.

He wrote: “To approve such a program, the Court must have every confidence that the government is doing its utmost to ensure that those responsible for implementation fully comply with the Court’s wishes. The Court no longer has such confidence.”

Walton undoubtedly knew then what we know now: that the NSA has in its possession the content of every telephone conversation, text message and email sent into, out of or within the United States in the past two and a half years. And it has shared all of that with other government agencies and foreign governments. And it has lied to him in order to get all that.

Is this the government the Framers gave us? Or has it been perverted beyond recognition? What shall we do about it?

Thomas Paine, when confronted with British government-orchestrated assaults on liberty not nearly as pervasive as this NSA spying, remarked that it is the duty of the patriot to protect the liberties of his countrymen from their government. Where are those patriots when we need them?

The President’s Embarrassment

by Judge Andrew Napolitano on Thursday, September 12, 2013

When Secretary of State John Kerry, apparently irritated by a lack of sleep, gave a snippy and what he thought was an unrealistic reply to a reporter’s question at a London press conference last weekend, he hardly could have imagined the world’s response. Asked whether there is anything Syrian President Bashar al-Assad could do at this relatively late hour to avoid an American invasion, Kerry told an international audience that if Assad gave up whatever chemical weapons his government possesses, the U.S. would forgo an invasion.

But not to worry, Kerry added. Assad is not going to do that, and we will end up invading Syria in order to vindicate President Obama’s threat to do so. For two days, Obama remained silent on this as his arch-nemesis, Russian President Vladimir Putin, grabbed the spotlight and the high moral ground.

Read Full Article

War, War, What is it Good For?

by Judge Andrew Napolitano on Thursday, September 5, 2013

President Obama’s request for express congressional authorization for a limited aerial invasion of Syria raises profound legal and constitutional questions. For starters, there is simply no legal basis in international law to support an American invasion of Syria. Yet, notwithstanding that, federal law permits the president to commit U.S. military forces anywhere he wants for up to 90 days, without express authorization from Congress. So, why did Obama ask for the authorization he surely knows he already has?

Since March 2011, Syria has been in the throes of a civil war. Those seeking to oust the government of President Bashar al-Assad are a mixture of his domestic political opponents, disgruntled former Syrian military officers and dangerous radical foreign Islamist fighters affiliated with al-Qaida. International organizations monitoring the war have put the dead from both sides at more than 100,000 persons.

Read Full Article

Domestic Spying Is Dangerous to Freedom

by Judge Andrew Napolitano on Thursday, August 8, 2013

How is it that the government can charge Edward Snowden with espionage for telling a journalist that the feds have been spying on all Americans and many of our allies, but the NSA itself, in a public relations campaign intended to win support for its lawlessness, can reveal secrets and do so with impunity? That question goes to the heart of the rule of law in a free society.

Since Snowden’s June 6th revelations about massive NSA spying, we have learned that all Americans who communicate via telephone or the Internet (who doesn’t?) have had all of their communications swept up by the federal government for two-plus years. The government initially claimed that the NSA has gathered only telephone numbers and billing data. Now we know that the NSA has captured and stored the content of trillions of telephone conversations, texts and emails, and can access that content at the press of a few computer keys. All of this happened in the dark, with the permission of President Obama, with the knowledge and consent of fewer than 20 members of Congress who were forbidden from doing anything about it by the laws they themselves had written, and based on secret legal arguments accepted by a secret court that keeps its records secret even from the judges who sit on the court.

Read Full Article

Domestic Spying Is Dangerous to Freedom

by Judge Andrew Napolitano on Thursday, August 8, 2013

How is it that the government can charge Edward Snowden with espionage for telling a journalist that the feds have been spying on all Americans and many of our allies, but the NSA itself, in a public relations campaign intended to win support for its lawlessness, can reveal secrets and do so with impunity? That question goes to the heart of the rule of law in a free society.

Since Snowden’s June 6th revelations about massive NSA spying, we have learned that all Americans who communicate via telephone or the Internet (who doesn’t?) have had all of their communications swept up by the federal government for two-plus years. The government initially claimed that the NSA has gathered only telephone numbers and billing data. Now we know that the NSA has captured and stored the content of trillions of telephone conversations, texts and emails, and can access that content at the press of a few computer keys. All of this happened in the dark, with the permission of President Obama, with the knowledge and consent of fewer than 20 members of Congress who were forbidden from doing anything about it by the laws they themselves had written, and based on secret legal arguments accepted by a secret court that keeps its records secret even from the judges who sit on the court.

Read Full Article

Liberty’s Backlash

by Judge Andrew Napolitano on Thursday, August 1, 2013

Last week, Justin Amash, the two-term libertarian Republican congressman from Michigan, joined with John Conyers, the 25-term liberal Democratic congressman from the same state, to offer an amendment to legislation funding the National Security Agency (NSA). If enacted, the Amash-Conyers amendment would have forced the government’s domestic spies when seeking search warrants to capture Americans’ phone calls, texts and emails first to identify their targets and produce evidence of their terror-related activities before a judge may issue a warrant. The support they garnered had a surprising result that stunned the Washington establishment.

It almost passed.

Read Full Article

Liberty and Safety

by Judge Andrew Napolitano on Thursday, July 25, 2013

When Edward Snowden revealed that the federal government, in direct defiance of the Fourth Amendment to the Constitution, was unlawfully and unconstitutionally spying on all Americans who use telephones, text messaging or emails to communicate with other persons, he opened a Pandora’s box of allegations and recriminations. The allegations he unleashed are that Americans have a government that assaults our personal freedoms, operates in secrecy and violates the Constitution and the values upon which it is based. The recriminations are that safety is a greater good than liberty, and Snowden interfered with the ability of the government to keep us safe by exposing its secrets, and so he should be silenced and punished.

In the course of this debate, you have heard the argument that we all need to sacrifice some liberty in order to assure our safety, that liberty and safety are in equipoise, and when they clash, it is the government that should balance one against the other and decide which shall prevail. This is, of course, an argument the government loves, as it presupposes that the government has the moral, legal and constitutional power to make this satanic bargain.

Read Full Article

Double Jeopardy

by Judge Andrew Napolitano on Thursday, July 18, 2013

While the country processes the racial politics-inspired prosecution of George Zimmerman, which came to a conclusion last week, and as the calls to try him in federal court for the same events for which he was acquitted in a state court become louder each day, a case in upstate New York is making its way through the system that profoundly reveals the antipathy to the Constitution displayed by some prosecutors in the U.S. Department of Justice and may give Zimmerman a foretaste of things to come.

Sitting patiently waiting for a Manhattan federal appeals court to order the government to obey the laws it has sworn to uphold is former New York state Sen. Joseph Bruno. Unlike many in the New York Legislature today, Bruno, a fiercely Catholic conservative Republican, was a pillar of legislative integrity, known even to his political adversaries as a man of his word. Once you shook his hand, you could count on his compliance with the agreement sealed by the handshake.

Read Full Article

Above the Law

by Judge Andrew Napolitano on Thursday, July 11, 2013

Fidelity to the rule of law is the centerpiece of a free society. It means that no one is beneath the protection of the law and no one is absolved of the obligation to comply with it. The government may not make a person or a class of persons exempt from constitutional protections, as it did during slavery, nor may it make government officials exempt from complying with the law, as it does today.

Everyone who works for the government in the United States takes an oath to uphold the Constitution and the laws written pursuant to it. In our system of government, we expect that Congress will write the laws, the courts will interpret them and the president will enforce them. Indeed, the Constitution states that it is the president’s affirmative duty to enforce the law. That duty is not an abstract formulation. Rather, it means the president cannot decline to enforce laws with which he disagrees or whose enforcement might cause him or his political allies to lose popularity. It also means the president cannot make up his own version of the law as a substitute for what the Constitution commands or Congress has written.

Read Full Article

Jefferson Weeping

by Judge Andrew Napolitano on Thursday, July 4, 2013

Do you have more personal liberty today than on the Fourth of July 2012?

When Thomas Jefferson wrote the Declaration of Independence, he used language that has become iconic. He wrote that we are endowed by our Creator with certain inalienable rights, and among them are life, liberty and the pursuit of happiness. Not only did he write those words, but the first Congress adopted them unanimously, and they are still the law of the land today. By acknowledging that our rights are inalienable, Jefferson’s words and the first federal statute recognize that our rights come from our humanity — from within us — and not from the government.

Read Full Article

The Truth Shall Keep Us Free

by Judge Andrew Napolitano on Thursday, June 27, 2013

Which is more dangerous to personal liberty in a free society: a renegade who tells an inconvenient truth about government law-breaking, or government officials who lie about what the renegade revealed? That’s the core issue in the great public debate this summer, as Americans come to the realization that their government has concocted a system of laws violative of the natural law, profoundly repugnant to the Constitution and shrouded in secrecy.

The liberty of which I write is the right to privacy: the right to be left alone. The Framers jealously and zealously guarded this right by imposing upon government agents intentionally onerous burdens before letting them invade it. They did so in the Fourth Amendment, using language that permits the government to invade that right only in the narrowest of circumstances.

Read Full Article

Fidelity to the Constitution When We Need It

by Judge Andrew Napolitano on Thursday, June 20, 2013

When former spy Edward Snowden revealed to the world that the federal government is spying on most Americans, most Americans were surprised and unhappy. But half of official Washington yawned before it roared. Somehow the people in the government had a pretty good idea of what government spies are doing, and they more or less approve of it — but not all of them.

Politicians as diverse as Republican Speaker John Boehner and Democratic Sen. Dianne Feinstein called Snowden a traitor. So did former Vice President Dick Cheney, and President Obama said that for once Cheney’s words were music to his ears. On the other hand, former Democratic Congressman Dennis Kucinich, Republican Sen. Rand Paul, my Fox News colleague Bill O’Reilly and I have all referred to Snowden as a hero.

Read Full Article

Liberty in Shambles

by Judge Andrew Napolitano on Thursday, June 13, 2013

When British soldiers were roaming the American countryside in the 1760s with lawful search warrants with which they had authorized themselves to enter the private homes of colonists in order to search for government-issued stamps, Thomas Paine wrote, “These are the times that try men’s souls.” The soul-searching became a revolution in thinking about the relationship of government to individuals. That thinking led to casting off a king and writing a Constitution.

What offended the colonists when the soldiers came legally knocking was the violation of their natural right to privacy, their right to be left alone. We all have the need and right to be left alone. We all know that we function more fully as human beings when no authority figure monitors us or compels us to ask for a permission slip. This right comes from within us, not from the government.

Read Full Article

What if Laws Applied to Everyone?

by Judge Andrew Napolitano on Thursday, June 6, 2013

What if government officials have written laws that apply only to us and not to them? What if we gave them the power to protect our freedoms and our safety and they used that power to trick and trap some of us? What if government officials broke the laws we hired them to enforce? What if they prosecuted others for breaking the same laws they broke?

What if the government enacted a law making it a crime to provide material assistance to terrorist organizations? What if that law was intended to stop people from giving cash and weapons to organizations that bomb and maim and kill? What if the government looked at that law and claimed it applied to a dentist or a shopkeeper who sold services or goods to a terrorist organization, and not just to financiers and bomb makers?

Read Full Article

An Assault on Freedom of the Press

by Judge Andrew Napolitano on Thursday, May 30, 2013

The firestorm commenced by the revelation of the execution of a search warrant on the personal email server of my Fox News colleague James Rosen continues to rage, and the conflagration engulfing the First Amendment continues to burn; and it is the Department of Justice itself that is fanning the flames.

As we know from recent headlines, in the spring of 2010, the DOJ submitted an affidavit to a federal judge in Washington, D.C., in which an FBI agent swore under oath that Rosen was involved in a criminal conspiracy to release classified materials, and in the course of that conspiracy, he aided and abetted a State Department vendor in actually releasing them. The precise behavior that the FBI and the DOJ claimed was criminal was Rosen’s use of “flattery” and his appeals to the “vanity” of Stephen Wen-Ho Kim, the vendor who had a security clearance. The affidavit persuaded the judge to issue a search warrant for Rosen’s personal email accounts that the feds had sought.

Read Full Article

Tyranny Around the Corner

by Judge Andrew Napolitano on Thursday, May 23, 2013

A few weeks ago, President Obama advised graduates at Ohio State University that they need not listen to voices warning about tyranny around the corner, because we have self-government in America. He argued that self-government is in and of itself an adequate safeguard against tyranny, because voters can be counted upon to elect democrats (lowercase “d”) not tyrants. His argument defies logic and 20th-century history. It reveals an ignorance of the tyranny of the majority, which believes it can write any law, regulate any behavior, alter any procedure and tax any event so long as it can get away with it.

History has shown that the majority will not permit any higher law or logic or value — like fidelity to the natural law, a belief in the primacy of the individual or an acceptance of the supremacy of the Constitution — that prevents it from doing as it wishes.

Read Full Article

Storm Clouds Gathering

by Judge Andrew Napolitano on Thursday, May 16, 2013

Government is bad for personal freedom. That argument is premised upon the truism that everything government does interferes with freedom because it either prohibits or compels. Everything it owns it has taken from others. Much of what it says is divorced from the truth. President Obama, like President George W. Bush, has argued that his first job is to keep America safe, and if he impairs personal freedom in the process, that is a small price to pay for safety. Many of my colleagues in the media on the left and right have bought this argument, notwithstanding its fallacies.

Until now.

Read Full Article

Why We Should Mistrust the Government

by Judge Andrew Napolitano on Thursday, May 9, 2013

It should come as no surprise that President Obama told Ohio State students at graduation ceremonies last week that they should not question authority and they should reject the calls of those who do. He argued that “our brave, creative, unique experiment in self-rule” has been so successful that trusting the government is the same as trusting ourselves; hence, challenging the government is the same as challenging ourselves. And he blasted those who incessantly warn of government tyranny.

Yet, mistrust of government is as old as America itself. America was born out of mistrust of government. The revolution that was fought in the 1770s and 1780s was actually won in the minds of colonists in the mid-1760s when the British imposed the Stamp Act and used writs of assistance to enforce it. The Stamp Act required all persons in the colonies to have government-sold stamps on all documents in their possession, and writs of assistance permitted search warrants written by British troops in which they authorized themselves to enter private homes ostensibly to look for the stamps.

Read Full Article

To Receive Free Daily
Articles Via E-mail
Click Here

Featured Columnists

The Problem:
A Government-Created Depression
The Solution: Set the Entrepreneur Free to Create Wealth!

Click here to learn about Robert Ringer's landmark new book, The Entrepreneur:
The Way Back for the U.S. Economy
, that is shocking the establishment.

Liberty Education
Interview Series

Robert Ringer interviews top political, economic, and social leaders on today's most vital and controversial issues.

Dr. Benjamin Carson Interview

Featured Interview:
Dr. Benjamin Carson

Audio file loading...

More Interviews