Andrew Napolitano – The Burning Platform

There is No Actual Law or Justice in the B.E.A.S.T. System

By Doug “Uncola” Lynn via TheBurningPlatform.com

In recent decades, public confidence in our institutions has declined. Our governing class has often been paralyzed in the face of obvious and pressing needs. The American dream of upward mobility seems out of reach for some who feel left behind in a changing economy. Discontent deepened and sharpened partisan conflicts. Bigotry seems emboldened. Our politics seems more vulnerable to conspiracy theories and outright fabrication.

– Former President George W. Bush – October 19, 2017

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People young and old will puzzle over what it felt like for their parents and grandparents, in a distantly remembered era, to have lived in a society that felt like one national community. They will yearn to recreate this, to put America back together again. But no one will know how.

– Strauss and Howe: “The Fourth Turning”, FIRST EDITION, page 252

Once in a land of plenty, free people united together to create one nation under God, indivisible, with liberty and justice for all. They worked hard. They innovated, created, and prospered. Before long, however, a group of greedy men secretly met on a remote island and developed a scheme to capture the entirety of the nation’s wealth.

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The Clinton Investigation Enters a Dangerous Phase

Hat tip Francis Marion

Guest Post by Andrew Napolitano

The FBI investigation of former Secretary of State Hillary Clinton’s failure to protect state secrets contained in her emails has entered its penultimate phase, and it is a dangerous one for her and her aides.

Federal law enforcement sources have let it be known that federal prosecutors and the FBI have completed their examination of raw data in the case. After the FBI acquires raw data — for example, the nature and number of the state secrets in the emails Clinton failed to protect or the regular, consistent, systematic nature of that failure — prosecutors and agents proceed to draw rational inferences from that data.

Then they proceed to corroborate those inferences, looking for other sources to support or even to contradict them. With one exception, all of this work has been done with neutral sources of evidence — documents, email metadata, government records and technical experts.

The exception is Bryan Pagliano, the one member of Clinton’s inner circle who, with either a written promise of non-prosecution or an order of immunity from a federal judge, began to cooperate with federal prosecutors last fall.

Here is what he told the feds.

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More Smoking Guns – Will Hillary’s Next Stop Be The White House Or The Big House?

Submitted by Andrew Napolitano via AntiWar.com,

The federal criminal investigation of former Secretary of State Hillary Clinton’s failure to secure state secrets was ratcheted up earlier this week, and at the same time, the existence of a parallel criminal investigation of another aspect of her behavior was made known. This is the second publicly revealed expansion of the FBI’s investigations in two months.

I have argued for two months that Clinton’s legal woes are either grave or worse than grave. That argument has been based on the hard, now public evidence of her failure to safeguard national security secrets and the known manner in which the Department of Justice addresses these failures.

The failure to safeguard state secrets is an area of the law in which the federal government has been aggressive to the point of being merciless. State secrets are the product of members of the intelligence community’s risking their lives to obtain information.

Before she was entrusted with any state secrets – indeed, on her first full day as secretary of state – Clinton received instruction from FBI agents on how to safeguard them; and she signed an oath swearing to comply with the laws commanding the safekeeping of these secrets. She was warned that the failure to safeguard secrets – known as espionage – would most likely result in aggressive prosecution.

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The Constitution, the President and Guns

Guest Post by Judge Andrew Napolitano

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” — Second Amendment to the U.S. Constitution

In 2008, the Supreme Court laid to rest the once-simmering dispute over the meaning of the Second Amendment. In an opinion written by Justice Antonin Scalia, the court articulated the modern existence of the ancient personal right to keep and bear arms as a pre-political right.

A pre-political right is one that pre-exists the political order that was created to protect it. Thus, the court held, the origins of this right are the ancient and persistent traditions of free peoples and their natural inclinations to self-defense.

The court also characterized the right as fundamental. That puts it in the highest category of rights protected by the Bill of Rights. Though the origins of this right are from an era well before guns existed, the textual language in the amendment — “arms” — makes clear, the court ruled, the intention of the Framers that its continuing purpose should be to recognize the right of people to keep and use the same level of technologically available arms that might be used against them.

That, in a nutshell, is the history, theory and purpose of the amendment as the modern Supreme Court has found them to be. But as we have seen, the constitutional guarantees that were written to keep the government from interfering with our rights are only as viable as is the fidelity to the Constitution of those in whose hands we have reposed it for safekeeping.

In our system, principal among those are the hands of the president; and sadly, today we have a president seriously lacking in this fidelity. And that lack is salient when it comes to the Second Amendment.

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60,000 Spies On US Citizens, Not One Terrorist Plot Stopped

Guest Post by Andrew P. Napolitano

In their continuous efforts to create the impression that the government is doing something to keep Americans safe, politicians in Washington have misled and lied to the public. They have violated their oaths to uphold the Constitution. They have created a false sense of security. And they have dispatched and re-dispatched 60,000 federal agents to intercept the telephone calls, text messages and emails of all Americans all the time.

In the process, while publicly claiming they only acquire identifying metadata – the time, date, location, duration, telephone numbers and email addresses of communications – they have in fact surreptitiously gained access to the content of these communications.

On June 1, one of the three claimed legal authorities for all this, Section 215 of the Patriot Act, expired, as Congress was unable to agree on either its reinstitution or the enactment of a substitute. At the time that Section 215 was about to expire, President Obama, Attorney General Lynch and FBI Director Comey warned that the NSA’s computers would go dark and the American public would be at the mercy of our enemies. Their warnings were nonsense.

The NSA is a military entity that utilizes the services of military computer experts and agents, employs civilians, and hires companies that provide thousands of outside contractors. After nearly 14 years of spying on us – all authorized by a secret court whose judges cannot keep records of what they have ordered or discuss openly what they know – the NSA now has computers and computer personnel physically located in the main switching offices of all telecom and Internet service providers in the United States. It has 24/7 access to the content of everyone’s telephone calls, emails and text messages.

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Restore the Fourth

Guest Post by Andrew P. Napolitano

If you plan to visit a college campus this month, don’t be surprised if you see signs and placards encouraging you to “Restore the Fourth.” Restore the Fourth is not about an athletic event or a holiday; it is about human freedom. The reference to “the Fourth” is to the Fourth Amendment, and it is badly in need of restoration.

In the dark days following 9/11, Congress enacted the Patriot Act. The Patriot Act has many flaws, including its prohibition of certain truthful public speech, but its most pernicious assault is on the constitutional right to privacy.

One of its sections permits federal agents to write their own search warrants and serve them on persons and entities who by law are the custodians of records about others, such as physicians, lawyers, bankers, telecoms, public utilities and computers servers. The same section of the act has been used perversely by the NSA and the secret FISA court to authorize the bulk collection of data.

Bulk collection of data — the indiscriminate governmental acquisition of the contents of emails, text messages, telephone calls, bank statements and credit card bills — is what the NSA seeks when it acquires all data in a specific area code or zip code or from a named provider, like Verizon, AT&T and Google.

What’s wrong with bulk collection? The warrant issued by the FISA court that authorizes bulk collection is known as a general warrant. A general warrant does not name a person or place, but authorizes the bearer to search wherever he wishes and seize whatever he finds. General warrants were a tool of colonial repression used by the king prior to the American Revolution. They were issued by secret courts in London. They were so loathed by the Framers that they are expressly forbidden by the Fourth Amendment.

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The Tyranny of One Man’s Opinion

Guest Post by Andrew Napolitano

Thomas Cromwell was the principal behind-the-scenes fixer for much of the reign of King Henry VIII. He engineered the interrogations, convictions and executions of many whom Henry needed out of the way, including his two predecessors as fixer and even the king’s second wife, Queen Anne.

When Cromwell’s son, Gregory, who became sickened as he watched his father devolving from counselor to monster, learned that an executioner for the queen had been sent for from France a week before her conviction, he asked his father what the purpose of her trial was if the king had preordained the queen’s guilt and prepaid the executioner. Cromwell replied that the king needed a jury to give legitimacy to her conviction and prevent the public perception of “the tyranny of one man’s opinion.”

In America, we have a Constitution not only to prevent the perception but also to prevent the reality of the tyranny of one man’s opinion. The Constitution’s Fifth Amendment makes clear that if the government wants life, liberty or property, it cannot take it by legislation or executive command; it can do so only by due process — a fair jury trial and all its constitutional protections.

The constitutional insistence upon due process was the result of not only the Colonial revulsion at the behavior of Henry and his successors but also the recognition of the natural individual right to fairness from the government. If one man in the government becomes prosecutor, judge and jury, there can be no fairness, no matter who that man is or what his intentions may be. That is at least the theory underlying the requirements for due process.

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Can the President Legally Kill Americans?

Obama’s secret execution approval process denies citizens due process.

Guest Post by Andrew Napolitano

Ville Misaki/Flickr

Can the president kill you? The short answer is: Yes, but not legally. Yet, President Obama has established a secret process that involves officials from the Departments of Justice and Defense, the CIA, and the White House senior staff whereby candidates are proposed for execution and the collective wisdom of the officials then recommends execution to the president, who then accepts or rejects the recommendation.

If the recommendation is to kill and the president rejects the recommendation, the CIA is directed to arrest the person. If the president accepts the recommendation to kill, then death is ordered. This is not unlike the procedure used in the reign of the monstrous British King Henry VIII, except that the king himself delegated the final say to his chancellor so that he could publicly disavow participation in the government murders.

Obama does not disavow them; he defends them. But the Constitution he swore to uphold makes clear that whenever the government wants the life, liberty, or property of anyone, it must follow due process. Stated differently, it must either sue the person for his property or prosecute him for his life or liberty, and the law that forms the basis for the lawsuit or the prosecution must have existed before the person did whatever the government says he did that resulted in its pursuit of him. The whole reason for the requirement of due process was to prevent what Henry VIII did and Obama is doing from ever happening here.

It is happening here.

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WHO OWNS YOUR BODY?

Guest Post by Judge Andrew Napolitano

To Vaccinate or Not To Vaccinate?

New Jersey Gov. Chris Christie unwittingly ignited a firestorm earlier this week when he responded to a reporter’s question in Great Britain about forced vaccinations of children in New Jersey by suggesting that the law in the U.S. needs to balance the rights of parents against the government’s duty to maintain standards of public health.Before Christie could soften the tone of his use of the word “balance,” Kentucky Sen. Rand Paul jumped into the fray to support the governor. In doing so, he made a stronger case for the rights of parents by advancing the view that all vaccines do not work for all children and the ultimate decision-maker should be parents and not bureaucrats or judges. He argued not for balance, but for bias — in favor of parents.

When Christie articulated the pro-balance view, he must have known that New Jersey law, which he enforces, has no balance, shows no deference to parents’ rights and permits exceptions to universal vaccinations only for medical reasons (where a physician certifies that the child will get sicker because of a vaccination) or religious objections. Short of those narrow reasons, in New Jersey, if you don’t vaccinate your children, you risk losing parental custody of them.

The science is overwhelming that vaccinations work for most children most of the time. Paul, who is a physician, said, however, he knew of instances in which poorly timed vaccinations had led to mental disorders. Yet, he was wise enough to make the pro-freedom case, and he made it stronger than Christie did.

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How a Bipartisan Majority in Congress Shredded the Constitution, Again

Guest Post by Andrew Napolitano

When the government is waving at us with its right hand, so to speak, it is the government’s left hand that we should be watching. Just as a magician draws your attention to what he wants you to see so you will not observe how his trick is performed, last week presented a textbook example of public disputes masking hidden deceptions. Here is what happened:

Last week was dominated by two huge news stories. One was the revelation by the Senate Intelligence Committee of torture committed by CIA agents and contractors on 119 detainees in the post-9/11 era— 26 of whom were tortured for months by mistake. In that revelation of anguish and error were the conclusions by CIA agents themselves that their torture had not produced helpful information. President Barack Obama acknowledged that the CIA had tortured, yet he directed the Department of Justice not to prosecute those who tortured and those who authorized it.

The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of September 2015. That legislation, which is 2,000 pages in length, was not read by anyone who voted for it. It spends a few hundred billion dollars more than the government will collect in tax revenue. The compromise was achieved through bribery; members of Congress bought and sold votes by adding goodies (in the form of local expenditures of money borrowed by the federal government) to the bill that were never debated or independently voted upon and were added solely to achieve the votes needed for passage. This is how the federal government operates today. Both parties participate in it. They have turned the public treasury into a public trough.

Hidden in the law that authorized the government to spend more than it will collect was a part about funding for the 16 federal civilian intelligence agencies. And hidden in that was a clause, inserted by the same Senate Intelligence Committee that revealed the CIA torture, authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments.

“Nonpublic data” is the government’s language referring to the content of the emails, text messages, telephone calls, bank statements, utility bills, and credit card bills of nearly every innocent person in America—including members of Congress, federal judges, public officials and law enforcement officials. I say “innocent” because the language of this legislation—which purports to make lawful the NSA spying we now all know about—makes clear that those who spy upon us needn’t have any articulable suspicion or probable cause for spying.

The need for articulable suspicion and probable cause has its origins in the Fourth Amendment to the Constitution, which was written to prohibit what Congress just authorized. That amendment was a reaction to the brutish British practice of rummaging through the homes of American colonists, looking for anything that might be illegal. It is also a codification of our natural right to privacy. It requires that if the government wants nonpublic data from our persons, houses, papers, or effects, it must first present evidence of probable cause to a judge and then ask the judge for a search warrant.

Probable cause is a level of evidence that is sufficient to induce a judge into concluding that it is more likely than not that the place to be examined contains evidence of crimes. In order to seek probable cause, the government must first have an articulable suspicion about the person or place it has targeted. Were this not in the law, then nothing would stop the government from fishing expeditions in pursuit of anyone it wants to pursue. And fishing expeditions turn the presumption of liberty on its head. The presumption of liberty is based on the belief that our rights are natural to us and that we may exercise them without a permission slip from the government and without its surveillance.

Until last week, that is. Last week Congress, by authorizing the massive NSA spying to continue and by authorizing the spies to share what they have seized with law enforcement, basically permitted the fishing expeditions that the Fourth Amendment was written to prevent.

How can the president and Congress defy the Constitution, you might ask? Hasn’t every member of the government taken an oath to uphold the Constitution? Doesn’t the Constitution create the presidency and the Congress? How can politicians purport to change it? The answers to these questions are obvious, as is the belief of most of those in government that they can write any law and regulate any behavior and ignore the Constitution they have sworn to uphold whenever they want, so long as they can get away with it.