Judge Napolitano ColumnBlog's for May, 2017http://www.BillOReilly.comBill O'Reilly2024-03-29T10:18:30Z2024-03-29T10:18:30ZBill O'ReillyMore Spying and More LyingJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/More-Spying-and-More-Lying/764383538451669634.html2017-05-04T07:00:00Z2017-05-04T07:00:00Z<p>Late last week, President Donald Trump told CBS News that domestic surveillance of American citizens should be the "No. 1" topic of inquiry until we can find out "what the hell is going on" with it. Also late last week, the National Security Agency -- the federal government's 60,000-person-strong domestic spying agency -- announced that it would voluntarily hold back on its more aggressive uses of Section 702 of the Foreign Intelligence Surveillance Act.<br /><br /> That section permits the NSA to capture communications between foreigners and Americans without a warrant from any court, even though the NSA has its own secret court that has granted well over 99 percent of applications for spying brought to it.<br /><br /> Yet the NSA has convinced the Foreign Intelligence Surveillance Court that when it captures the communications of a foreigner and an American and those communications refer to a third person who is an American, Section 702 extends the authority for warrantless spying to that third person, as well. And it extends to any person whom the third person is talking about -- and so forth, out to the sixth level of communication.<br /><br /> If you do the math, this NSA-concocted, Section 702-generated, secret FISA court-approved logic permits warrantless spying on nearly everyone in the United States. So why did the NSA announce that it will pull back on the way it utilizes Section 702 as the basis for its mass spying?<br /><br /> Here is the back story.<br /><br /> FISA was written in the aftermath of the Watergate scandal, which involved illegal domestic spying. The purpose of FISA was to insert the judiciary between the NSA and its targets so as to ensure that there would be a consistent legal basis for the spying. What was that basis?<br /><br /> The Supreme Court has long characterized domestic spying as surveillance, and it has characterized surveillance as either a "search" or a "seizure" of communications. The Fourth Amendment requires judicially issued warrants for all government searches and seizures, and it mandates that those search warrants be based on probable cause of wrongdoing on the part of the person whom the government wishes to surveil and that the warrants themselves specifically describe the place to be searched or the person or thing to be seized.<br /><br /> Yet government lawyers, who have no opposition standing next to them when they appear in the FISA court, have convinced the court that the constitutional requirement of probable cause only applies to the government when it is engaging in law enforcement, not when it seeks intelligence data. So when the NSA asks the FISA court for authority to conduct surveillance, the FISA court complies, and it does so with warrants that do not specifically describe the place to be searched or the person or thing to be seized. These warrants typically authorize spying by ZIP codes or area codes or street addresses or telecommunications companies' customer lists.<br /><br /> What the NSA does not tell the FISA court is that its requests for approvals are a sham. That's because the NSA relies on vague language in a 35-year-old executive order, known as EO 12333, as authority to conduct mass surveillance. That's surveillance of everyone -- and it does capture the content of every telephone conversation, as well as every keystroke on every computer and all fiber-optic data generated everywhere within, coming to and going from the United States.<br /><br /> This is not only profoundly unlawful but also profoundly deceptive. It is unlawful because it violates the Fourth Amendment. It is deceptive because Congress and the courts and the American people, perhaps even the president, think that the FISA court has been serving as a buffer for the voracious appetite of the NSA. In reality, the NSA, while dispatching lawyers to make sophisticated arguments to the FISA court, has gone behind the court's back by spying on everyone all the time.<br /><br /> In a memo from a now-former NSA director to his agents and vendors, leaked to the public, he advised capturing all data from everyone all the time. This produces information overload, as there is more data than can be analyzed; each year, it produces the equivalent of 27 times the contents of the Library of Congress. Therefore, safety -- as well as liberty -- is compromised.<br /><br /> The recent mass killings in Boston, San Bernardino and Orlando were all preceded by text messages and cellphone conversations between the killers and their confederates. The NSA had the digital versions of those texts and conversations, but it had not analyzed them until after the killings -- because it has and has had too much data to analyze in a critical and timely manner.<br /><br /> So, why did the NSA announce that it is pulling back from its customary uses of Section 702? To give the false impression to members of Congress that it follows the law. Section 702, the great subterfuge, expires at the end of this year, and the NSA, which has spied on Donald Trump since before he was president, fears the debate that will accompany the efforts to renew it -- hence its softening public tone.<br /><br /> The genius of the Fourth Amendment is that it serves as a two-edged sword. By requiring probable cause before judges can issue warrants to agents for surveillance, the amendment both protects the privacy of those uninvolved in wrongdoing by leaving them alone and compels federal agents to focus their appetite for intelligence and their need for evidence on only those they legitimately feel may have done wrong.<br /><br /> In the meantime, Trump knows that he has been the victim of overzealous and unlawful surveillance, and we can expect during the debate over renewal of Section 702 that he will have a more sober and constitutional view of all this than his predecessors have; and that may bring about more freedom and more safety.</p>Judge Andrew P. Napolltano2017-05-04T07:00:00ZThe FBI and Hillary, AgainJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-FBI-and-Hillary-Again/-972006905712993117.html2017-04-27T07:00:00Z2017-04-27T07:00:00Z<p>Last weekend, The New York Times published a long piece about the effect the FBI had on the outcome of the 2016 presidential campaign. As we all know, Donald Trump won a comfortable victory in the Electoral College while falling about 3 million votes behind Hillary Clinton in the popular vote.<br /><br /> I believe that Clinton was a deeply flawed candidate who failed to energize the Democratic Party base and who failed to deliver to the electorate a principled reason to vote for her. Yet when the Times reporters asked her why she believes she lost the race, she gave several answers, the first of which was the involvement of the FBI. She may be right.<br /><br /> Here is the back story.<br /><br /> In 2015, a committee of the House of Representatives that was investigating the deaths of four Americans at the U.S. Consulate in Benghazi, Libya, learned that the State Department had no copies of any emails sent or received by Clinton during her four years as secretary of state. When committee investigators pursued this -- at the same time that attorneys involved with civil lawsuits brought against the State Department seeking the Clinton emails were pursuing it -- it was revealed that Clinton had used her own home servers for her emails and bypassed the State Department servers.<br /><br /> Because many of her emails obviously contained government secrets and because the removal of government secrets to any non-secure venue constitutes espionage, the House Select Committee on Benghazi sent a criminal referral to the Department of Justice, which passed it on to the FBI. A congressionally issued criminal referral means that some members of Congress who have seen some evidence think that some crime may have been committed. The DOJ is free to reject the referral, yet it accepted this one.<br /><br /> It directed the FBI to investigate the facts in the referral and to refer to the investigation as a "matter," not as a criminal investigation. The FBI cringed a bit, but Director James Comey followed orders and used the word "matter." This led to some agents mockingly referring to him as the director of the Federal Bureau of Matters.<br /> It would not be the last time agents mocked or derided him in the Clinton investigation.<br /><br /> He should not have referred to it by any name, because under DOJ and FBI regulations, the existence of an FBI investigation should not be revealed publicly unless and until it results in some public courtroom activity, such as the release of an indictment. These rules and procedures have been in place for generations to protect those never charged. Because of the role that the FBI has played in our law enforcement history -- articulated in books and movies and manifested in our culture -- many folks assume that if a person is being investigated by the FBI, she must have done something wrong.<br /><br /> In early July 2016, Clinton was personally interviewed in secret for about four hours by a team of FBI agents who had been working on her case for a year. During that interview, she professed great memory loss and blamed it on a head injury she said she had suffered in her Washington, D.C., home. Some of the agents who interrogated her disbelieved her testimony about the injury and, over the Fourth of July holiday weekend, asked Comey for permission to subpoena her medical records.<br /><br /> When Comey denied his agents the permission they sought, some of them attempted to obtain the records from the intelligence community. Because Clinton's medical records had been digitally recorded by her physicians and because the FBI agents knew that the National Security Agency has digital copies of all keystrokes on all computers used in the U.S. since 2005, they sought Clinton's records from their NSA colleagues. Lying to the FBI is a felony, and these agents believed they had just witnessed a series of lies.<br /><br /> When Comey learned what his creative agents were up to, he jumped the gun by holding a news conference on July 5, 2016, during which he announced that the FBI was recommending to the DOJ that it not seek Clinton's indictment because "no reasonable prosecutor" would take the case. He then did the unthinkable. <br /><br />He outlined all of the damning evidence of guilt that the FBI had amassed against her.<br /><br /> This double-edged sword -- we won't charge her, but we have much evidence of her guilt -- was unprecedented and unheard of in the midst of a presidential election campaign. Both Republicans and Democrats found some joy in Comey's words. Yet his many agents who believed that Clinton was guilty of both espionage and lying were furious -- furious that Comey had revealed so much, furious that he had demeaned their work, furious that he had stopped an investigation before it was completed.<br /><br /> While all this was going on, former Rep. Anthony Weiner, the estranged husband of Clinton's closest aide, Huma Abedin, was being investigated for using a computer to send sexually explicit materials to a minor. <br /><br />When the FBI asked for his computer -- he had shared it with his wife -- he surrendered it. When FBI agents examined the Weiner/Abedin laptop, they found about 650,000 stored emails, many from Clinton to Abedin, that they thought they had not seen before.<br /><br /> Rather than silently examine the laptop, Comey again violated DOJ and FBI regulations by announcing publicly the discovery of the laptop and revealing that his team suspected that it contained hundreds of thousands of Clinton emails; and he announced the reopening of the Clinton investigation. This announcement was made two weeks before Election Day and was greeted by the Trump campaign with great glee. A week later, Comey announced that the laptop was fruitless, and the investigation was closed, again.<br /><br /> At about the same time that the House Benghazi Committee sent its criminal referral to the DOJ, American and British intelligence became interested in a potential connection between the Trump presidential campaign and intelligence agents of the Russian government. This interest resulted in the now infamous year-plus-long electronic surveillance of Trump and many of his associates and colleagues. This also produced a criminal referral from the intelligence community to the DOJ, which sent it to the FBI.<br /><br /> Yet this referral and the existence of this investigation was kept -- quite properly -- from the press and the public. When Comey was asked about it, he -- quite properly -- declined to answer. When he was asked under oath whether he knew of any surveillance of Trump before Trump became president, Comey denied that he knew of it.<br /><br /> What was going on with the FBI?<br /><br /> How could Comey justify the public revelation of a criminal investigation and a summary of evidence of guilt about one candidate for president and remain silent about the existence of a criminal investigation of the campaign of another? How could he deny knowledge of surveillance that was well-known in the intelligence community, even among his own agents? Why would the FBI director inject his agents, who have prided themselves on professional political neutrality, into a bitterly contested campaign having been warned it might affect the outcome? Why did he reject the law's just commands of silence in favor of putting his thumb on political scales?<br /><br /> I don't know the answers to those questions. But the American public, and Hillary Clinton, is entitled to them.</p>Judge Andrew P. Napolltano2017-04-27T07:00:00ZWhat if We Don't Really Govern Ourselves?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-if-We-Dont-Really-Govern-Ourselves/-515600185868387617.html2017-04-20T07:00:00Z2017-04-20T07:00:00Z<p>What if our belief in self-government is a belief in a myth? What if the election of one political party over the other to control Congress changes only appearances? What if taxes stay high and regulations stay pervasive and the government stays oppressive and presidents fight wars no matter what the politicians promise and no matter who wins elections? What if the true goal of those whom we elect to Congress is not to be our agents of self-government or even to preserve our personal liberties but to remain in power by getting re-elected?<br /><br /> What if they use government to aid their own re-elections by bribing us with our own money -- the rich with bailouts, the middle class with tax breaks and the poor with transfer payments?<br /><br /> What if Congress has written laws that are too complex for its own members to read and understand? What if the language of most federal laws is intentionally arcane so that ordinary voters cannot understand it? What if that language is actually written by faceless bureaucrats and not by accountable members of Congress? What if members of Congress in fact rarely read any legislation before voting on it? What if some legislation refers to secrets and secret procedures that only a few members of Congress are permitted to see and utilize?<br /><br /> What if when the select few members of Congress who are permitted to see those secrets do see them, those members are themselves sworn to secrecy? What if that means that our elected representatives -- our supposed agents of self-government in the government -- do not fully know what the government is doing and that even if they do, they can't legally tell us?<br /><br /> What if our representatives in Congress don't really represent us? What if they really represent a political party? What if each political party is controlled by a small leadership group that punishes members who defy it? What if Congress has written laws and rules that permit its leaders to punish members' defiance? What if another way to characterize defiance of political party leadership is political courage?<br /><br /> What if the laws that Congress has written about the CIA have delegated congressional power to a small secret committee of members from both houses of Congress and both political parties? What if that committee can authorize secret wars in foreign lands conducted not by the military but by the CIA? What if the reason these folks authorize the CIA and not the military to conduct secret wars is the existence of federal laws that require reporting to and a vote of the entire Congress for the military to be used but require only the small secret committee to approve for the CIA to be used?<br /><br /> Because wars cost money and often cost lives, what if the effect of the decisions of the small secret committee is that the committee is basically a Congress within Congress? What if the Constitution says that only Congress can spend tax dollars and declare wars but Congress has let the Congress within Congress do this? What if the voters will never know what the Congress within Congress has authorized? What if the very existence of the Congress within Congress mocks, defies and betrays the concept of American self-government?<br /><br /> What if the data seen and discussed and the decisions made in secret by the Congress within Congress are generated by the CIA and other intelligence agencies? What if these intelligence agencies selectively reveal and selectively conceal data to manipulate the decisions of the Congress within Congress? What if those manipulations often result in bloodshed about which the American people often never learn? What if the bases for the decisions of the Congress within Congress are kept from the other members of Congress, from the media and from the voters?<br /><br /> What if the folks from both political parties who set up the Congress within Congress care more about wielding power than they do about preserving self-government? What if those who pull the levers of power in the intelligence community are so far removed from the voters that they don't know and don't care what the voters think? What if they know that the voters would react forcefully and decisively if the voters knew what the members of the Congress within Congress know but they still won't tell us?<br /><br /> What if all this diversion of power from the elected Congress to the Congress within Congress and all this reliance on secret data has resulted in the most pervasive surveillance by any government of any people at any time in world history? What if the federal government's domestic surveillance today captures and retains digital copies of every telephone call and every computer keystroke of every person in America and has done so since 2005? What if members of Congress who are not in the Congress within Congress do not know this?<br /> <br />What if the Congress within Congress has authorized American spies to spy without personal suspicion or judicial warrant on the military, the courts, the police and every person in America, including the remaining members of Congress, much of the remaining intelligence community itself and even the White House?<br /><br /> What if the selective use of the data acquired from mass surveillance can be used to manipulate anyone by those who have access to the data? What if those who have access to the data have used it to manipulate the president of the United States? What if all this constitutes a grave but largely unseen threat to our liberties, not the least of which is the right to self-government?<br /><br /> What if we don't really govern ourselves? What do we do about it?</p>Judge Andrew P. Napolltano2017-04-20T07:00:00ZThe Missiles of Holy Week and the Rule of LawJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Missiles-of-Holy-Week-and-the-Rule-of-Law/-886801251313033683.html2017-04-13T07:00:00Z2017-04-13T07:00:00Z<p>The history of the world is the history of violence. I had planned to write this column about the most critical act of violence in human history and its superhuman aftermath -- the crucifixion and resurrection of Jesus Christ. Easter, which celebrates His resurrection in a few days, is the centerpiece of all Christian belief. <br /><br />Without the risen Christ, we are doomed. Only with Him can we be saved. An old Irish priest told me in my youth that Easter means there is hope for the dead. And if there is hope for the dead, there is hope for the living.<br /><br /> But the living must do more than just hope, because governments continue to crush hope with violence, irrespective of moral and legal norms. Last week, as Holy Week was approaching, the United States launched 59 cruise missiles at a Syrian airfield because President Donald Trump was morally repulsed at the use of poison gas in Syria in the days preceding.<br /><br /> Trump argued that the gas could only have been deployed intentionally by the Syrian government on its own people and that that behavior was so repellant, so contrary to civilized moral norms, so disruptive to the world order as to constitute a national security threat to the United States -- hence his use of force. Was his action legal?<br /><br /> Here is the back story.<br /><br /> Syria, along with the United States, is a signatory to the United Nations Charter. The U.N. Charter is a treaty signed by President Harry Truman and ratified by the U.S. Senate. Under the Constitution, treaties are the supreme law of the land, alongside the Constitution, and the federal government has a moral and legal obligation to be bound by them. The U.N. Charter limits member nations' use of military force to defensive responses to actual attacks, pre-emptive strikes prior to nearly certain attacks and correctives pursuant to U.N. consent or pursuant to another treaty obligating military force to help an ally.<br /><br /> These limitations are based on Judeo-Christian just war theory, which has been accepted in the Western world for centuries and is now codified into international law. Under this international law, military force must be a last resort, used only when necessary to fight back or to prevent an imminent attack. It also must be proportional to the harm it seeks to eradicate and be likely to produce the result it seeks. Anything short of this violates international law, to which the U.S. is bound by numerous treaties.<br /><br /> Syria is not a threat to the U.S., nor is it likely to become one. Nor is the argument that we needed to send a message to Syria lest it use poison gas on the U.S. a valid legal argument or a realistic political one. Were this subjective fear a valid legal basis for the use of military force, the president could send missiles anytime and anywhere at anyone or anything with legal impunity.<br /><br /> The president's revulsion at the sight of children suffering horrifically from the effects of poison gas is an emotional reaction -- a very human and utterly normal one. Yet it in no way legally justifies an attack on a sovereign nation.<br /><br /> In addition to various treaties, the president is subject, of course, to the Constitution, which provides that only Congress can declare war. Yet Congress gave the president a small window in which to use military force on his own in the War Powers Resolution of 1973. That law was written in the midst of President Richard Nixon's undeclared war in Cambodia to limit the president's emergency use of military force absent a declaration of war from Congress to defensive strikes, pre-emptive strikes and treaty obligations.<br /><br /> Earlier this week, 21 retired military, intelligence and FBI personnel jointly argued that President Trump was moved to this attack by misguided or incomplete intelligence. Their view -- which is based on eyewitness reports from U.S. military on the ground in Syria and intelligence reports from their former colleagues -- is that Syrian President Bashar Assad did not use poison gas on his own people earlier this month. They note that Assad is clearly winning his long-fought civil war and does not need the international headache of being tarnished as a person who gassed children; nor would there be even the remotest military gain to him if he did so.<br /><br /> These former federal officials point out that the U.S. military is playing a sub-rosa role with Russia and Syria in fighting al-Qaida and the Islamic State group. In this case, Syrian and probably Russian military erroneously thought a warehouse the Syrians attacked stored only conventional Islamic State weapons. It apparently stored an Islamic State chemical arsenal, as well, which, after explosions and exposure, unleashed a plume of poisonous gas that traveled in the atmosphere to a nearby village and slaughtered innocents.<br /><br /> Assad, for all his faults, is vigorously fighting al-Qaida and the Islamic State. The enemy of my enemy is my friend. Why would America harm another sovereign entity that is trying to take out al-Qaida and the Islamic State? Attacking Syrian military assets only aids al-Qaida and the Islamic State, which constitutes providing material assistance to terrorist organizations. Could anyone have imagined our country's ever doing that?<br /><br /> For months, I have been warning about the unchecked power of the intelligence community to manipulate the president by selectively revealing and selectively concealing what it knows about our enemies and our friends. Did Trump have all the intelligence he needed in front of him before he attacked Syria? Apparently not. Did he use proportional force defensively or pre-emptively to prevent harm to the U.S.? Clearly not. Can he legally use military force to punish or to teach a lesson to another sovereign state that poses no threat to the U.S.? Absolutely not, or there will be no end to government violence.<br /><br /> Yet in this time of violent madness, there is the joy of the Resurrection. Happy Easter.</p>Judge Andrew P. Napolltano2017-04-13T07:00:00ZA Hole in the ConstitutionJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/A-Hole-in-the-Constitution/504160270339540150.html2017-04-06T07:00:00Z2017-04-06T07:00:00Z<p>The issue of federal government surveillance of Americans has largely occupied Washington politicians and the media since President Donald Trump first accused the administration of his predecessor of spying on him while he and his colleagues worked at Trump Tower in New York City during the presidential election campaign and during the presidential transition.<br /><br /> Trump's allegations were initially dismissed as a diversionary tactic to get the attention of the media and the interest of the public off allegations made against the Trump campaign that it conspired with agents of Russian intelligence to facilitate Russian interference with the presidential election. Even some very smart colleagues of mine dismissed Trump's allegations, arguing that no one in Washington found them believable.<br /><br /> Then the director of the FBI, James Comey, and the director of the National Security Agency, America's 60,000-person-strong domestic spying apparatus, Adm. Mike Rogers, testified under oath that they knew of no surveillance of candidate or President-elect Trump at Trump Tower. When I heard these denials, I thought them to be odd at best and erroneous at worst because I was privy to credible chatter in the intelligence community that Trump's allegations were correct, and I knew that the FBI had revealed it was examining the activities of the Trump campaign to look for Russian involvement and that such an examination would surely find the surveillance of Trump that the intelligence community was chatting about.<br /><br /> Then the chairman of the House Intelligence Committee, Rep. Devin Nunes, R-Calif., revealed that whistleblowers from the intelligence community had approached him with evidence supportive of Trump's claims. He viewed this evidence and revealed that it showed surveillance of candidate and President-elect Trump, but it had nothing to do with Russia. Then Nunes' Democratic counterpart on the same committee, Rep. Adam Schiff, D-Calif., who had complained loud and long that he had not seen the documents, viewed the same documents and afterward remained essentially mute.<br /><br /> Before all this happened, unnamed sources released a portion of transcripts of telephone conversations between the Russian ambassador to the United States and retired Lt. Gen. Mike Flynn, then Trump's national security adviser in the White House. The conversations had taken place before Trump was inaugurated. <br /><br />Though only excerpts were revealed -- excerpts intended to embarrass Flynn and taunt Trump -- they arguably showed Flynn counseling the ambassador to expect different treatment of American sanctions on Russia from the Trump administration than they had received from the Obama administration. However, that was an expectation that any rational person would already have had. This revelation and its aftermath did prove embarrassing to Flynn and to Trump, and Flynn resigned.<br /><br /> How did anyone obtain transcripts of conversations involving Trump campaign or transition officials? Here is the back story.<br /><br /> The American public has permitted the most massive and thorough domestic surveillance apparatus in history to come about right under our collective and formerly freedom-loving nose. Beginning in 1978 and continuing up to the present, Congress has passed statutes that purport to confine domestic spying to foreign people communicating with anyone in America. Yet that confinement is a myth -- a myth accepted even by the Congresses that have authorized and reauthorized it.<br /><br /> In theory, spying in America is done pursuant to the Foreign Intelligence Surveillance Act and subsequent statutes that provide for the intervention of judges who issue warrants. In practice, the warrants are general warrants. They are not based on suspicion. They do not identify the person whose communications are to be intercepted. They permit the NSA to search where it wishes -- for example, in certain ZIP codes, area codes and service provider customer lists -- and retain whatever it finds.<br /><br /> On top of this subterfuge is the below-the-radar-screen behavior of the NSA, which looks to a Reagan-era executive order to justify its capture in real time of every telephone conversation and every computer keystroke of everyone in the U.S. since 2005.<br /><br /> That massive amount of raw data is stored digitally in NSA facilities in Maryland and in Utah, and it is available for examination by select people. One of the people who have access to it is the president's national security adviser. My colleagues at Fox News and at other media outlets have reported that Susan Rice, President Obama's final national security adviser, sought and obtained transcripts of conversations of people at Trump Tower, ostensibly looking for a connection to Russia. Rice has admitted this.<br /><br /> Yet in that process, someone revealed the name of an American whose communications had been examined -- known as unmasking. Unmasking is lawful in private only if necessary to comprehend a national security-related and lawfully intercepted communication. It is never lawful to leak publicly.<br /><br /> If unmasking is done for any non-national security purpose -- such as politics, curiosity, embarrassment or revenge -- or if it is from a surveilled conversation that was not national security-related, the unmasking is criminal. The use of intelligence data for political purposes is a felony. Its unlawful use is espionage because the identity of Americans surveilled is top-secret -- the highest level of classification. Someone unmasked Lt. Gen. Flynn and most likely President Trump.<br /><br /> The wrongful exposure of top-secret material is the same crime committed by Hillary Clinton when she placed top-secret emails in non-secure venues. Yet if the allegations against Rice are true, her behavior was arguably worse. Clinton acted with gross negligence. Rice's alleged behavior may have been intentional.<br /><br /> Michael Doran, who worked in national security in the George W. Bush White House, has argued that "somebody blew a hole in the wall between national security secrets and partisan politics." Yet this is far worse than a hole in the wall; it is a hole in the Constitution. Mass spying without suspicion and the select revelation of its fruits for political purposes is far worse than anything the government of King George III did to the colonists, and they fought a war to secede from his country.<br /><br /> How much longer will Americans permit the government to pull the wool over our eyes? Whatever happened to the constitutional right to privacy? Does the Constitution -- which requires a showing of some evidence of wrongdoing to a judge before the government may intercept any communications -- still mean what it says?</p>Judge Andrew P. Napolltano2017-04-06T07:00:00ZIs Health Care a Right or a Good?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Is-Health-Care-a-Right-or-a-Good/164347401939710730.html2017-03-30T07:00:00Z2017-03-30T07:00:00Z<p>The political fiasco that unfolded last week as President Donald Trump and the Republican House leadership failed to pass legislation repealing the Affordable Care Act, commonly called Obamacare, is attributable as much to the failure of politics as it is to the failure of politicians to understand the constitutional role of the federal government.<br /><br /> Republicans could not muster a majority in the House, which they control, because a determined small group of them want to remove the federal government from the regulation of health care and believe that the replacement for Obamacare that House leaders have offered would keep too much of it in place. The president and his allies have argued that their bill would invalidate enough of Obamacare to return free choices to health care and to fulfill their campaign promises. Neither side has prevailed.<br /><br /> Here is the back story.<br /><br /> When Congress passed Obamacare in 2010, it did so without a single Republican vote. The premise underlying the highly partisan 2,700-page legislation is that health care is a right belonging to everyone in America and the federal government has a constitutional duty to provide it.<br /><br /> The political structure of Obamacare mandates that every person in America obtain health insurance, that every employer of more than 50 people in America pay for the health insurance of all employees who work more than 30 hours per week, that every policy of health insurance cover a large dimension of potential medical needs and that those earning under a certain annual income level receive health care at the expense of the rest of us. The failure to obtain and maintain health insurance triggers a tax burden -- equivalent to the annual premium on a health insurance policy -- for every year one goes without coverage.<br /><br /> The economic structure of Obamacare requires 100 percent participation of everyone in America so as to ensure a large pool of insurance premiums -- whether paid by individuals, employers or taxpayers -- from which to pay health care providers. Still, premiums don't cover costs, which is why President Trump says Obamacare is collapsing.<br /><br /> The regulatory structure of Obamacare orders every primary care physician to keep all medical records on personal computers, to which the Department of Health and Human Services has access. Thus, the long-revered and uniquely American value of the patient-physician privilege -- the certain knowledge that your doctor will not reveal what you tell her or him -- has been obliterated. The statute also has given the secretary of HHS unreviewable powers to regulate intricacies of the delivery of health care in America.<br /><br /> Along with this expensive and bitter medicine -- which has caused hundreds of thousands of folks to downgrade to part-time work, reduced the wages of millions more and driven thousands of health care providers into retirement or new occupations -- Obamacare also has provided some sugar. The statute orders insurance carriers to cover pre-existing conditions, children on their parents' policies up to the age of 26 and expensive elective procedures, such as abortions and sex reassignment.<br /><br /> After the Republicans acquired full control of Congress in 2015, they delivered numerous repeals of Obamacare to President Barack Obama, knowing that he'd veto them, which he did. These were complete repeals -- essentially removing the federal government from the regulation of health insurance and the delivery of health care.<br /><br /> Now that Republicans control Congress and the White House, you'd expect that they would do the same, as they have promised. No such thing has happened. The legislation that Republican House leaders offered last week retained the basic premise of Obamacare -- that health care is a right and the federal government has a duty to provide it -- and just nibbled a bit at the edges.<br /><br /> Under the House proposal, the obligation to have health insurance would remain, but you couldn't expect it from your employer; you might have to pay for it yourself. And the penalty for the failure to have coverage would not be a tax from the IRS; it would be a $3,000 annual surcharge from your insurance carrier when you sign up. You could buy insurance tailored to your needs, but nearly all remaining federal regulations would stay in place -- including a new Orwellian one that would permit your employer to require you to undergo genetic screening.<br /><br /> This Obamacare lite has been resisted by about 30 House Republicans who reject the premise that health care is a right. Without their votes, it would not have passed last week, so the House leadership declined to hold a vote.<br /><br /> Is health care a right in America?<br /><br /> In a word, no. Rights are either natural immunities -- existing in areas of human behavior that, because of our nature, must be free from government regulation, such as life, liberty and the pursuit of happiness, as well as speech, the press, religion, travel, self-defense and what remains of privacy -- or legal claims that we qualify or bargain for, such as the right to vote, which the Constitution presumes, and the right to use your property to the exclusion of all others and the right to purchase a good that you can afford.<br /><br /> But the federal government cannot create a right that the Constitution does not authorize. It can't constitutionally transfer wealth from taxpayers or employers to others and then claim that the others have a right to the continued receipt of the transfers. The Supreme Court has ruled that even Social Security, Medicare and Medicaid are government largesse that Congress could terminate because no one has a right to them.<br /><br /> Of course, the federal government has been creating expectations that it calls rights for centuries. To stay in office, members of Congress bribe the rich with bailouts, the middle class with tax cuts and the poor with made-up rights to all sorts of things.<br /><br /> Yet under the Constitution, health care is not a right; it is a good -- like an education or a gym membership. <br /><br />You work hard, you decide what goods to purchase. If government gives you the good, that does not magically transform it into a right. Bravo to the courageous House Republicans who recognize this.</p>Judge Andrew P. Napolltano2017-03-30T07:00:00ZQuestions for Judge GorsuchJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Questions-for-Judge-Gorsuch/882202869176916312.html2017-03-23T07:00:00Z2017-03-23T07:00:00Z<p>I have spent this past week watching the Senate Judiciary Committee interrogating U.S. Circuit Judge Neil Gorsuch. Judge Gorsuch is President Donald Trump's nominee to fill the vacancy on the U.S. Supreme Court. <br /><br />The vacancy was created by the death of Justice Antonin Scalia more than 13 months ago. The Supreme Court is currently generally divided between four liberals and four conservatives. As a justice, Gorsuch would probably break many ideological ties.<br /><br /> During the hearings, Republican senators are doing their best to associate Judge Gorsuch with the popular-in-death Justice Scalia, and Democratic senators are doing their best to try to pin down Gorsuch by making him commit publicly to positions on hot-button issues, such as abortion, gun rights and the use of unrestricted money in political campaigns. Gorsuch has accepted the Republican sobriquets and declined to answer Democratic inquiries with specificity. So, are the hearings of any real value?<br /><br /> Here is the back story.<br /><br /> Prior to the partisan efforts to block the nominations of the late Judge Robert Bork and now-Justice Clarence Thomas to the Supreme Court, the Senate's "advice and consent" role was mainly limited to a cursory examination of a nominee's qualifications for office. The Bork hearings succeeded in derailing his nomination by portraying his philosophical views as outside the mainstream of legal thought. The Thomas hearings, which failed to block the nomination, centered on the nominee's alleged personal shortcomings, which were directly challenged and mainly refuted.<br /><br /> My point here is that since these two hearings in 1987 and 1991, the Senate Judiciary Committee has felt unleashed to probe and prod into any area it sees fit, and the nominees have become unleashed to answer only the questions that they think will advance their nominations.<br /><br /> In the Gorsuch hearings this week, the nominee has argued that should he commit to certain positions on issues, it would not be fair to litigants who might come before him as a circuit judge if his nomination were not to be confirmed or before him in the Supreme Court if it were, as those litigants would have a proper belief that he prejudged their cases. "It would be grossly improper," he argued, for him to commit in advance to how he'd vote on any issue. He's correct.<br /><br /> So, what questions could both Democrats and Republicans put to him and what questions could he answer that would inform their judgment and illuminate his thinking without committing his judgment?<br /><br /> It should come as no surprise that Gorsuch is a traditionalist. The folks who offered his candidacy to the president -- and I played a small role in that process -- spent weeks examining all his public writings, as well as his speeches and lectures, so as to enable them to conclude safely that his 10-year track record as an appellate judge could fairly be a barometer of his likely behavior as a Supreme Court justice. In the process of that examination, the researchers found many similarities in ideas, tone, attitudes and word choice to Justice Scalia.<br /><br /> The essence of that similarity is an idea called originalism. Though there are many variants of originalism, it generally advances the idea that the meaning of the Constitution was fixed at the time it was ratified and therefore its words mean the same today as they did to those who ratified it; and the same is the case for its 27 amendments.<br /><br /> This fidelity to original public understanding drives judges to the text of the Constitution and the laws -- not the principles that underlie the text, not the politics that produced the text, not the social ills the text seeks to cure but the words chosen by the drafters of the Constitution or of a statute, as the case may be. This is not just an obscure academic argument. Originalism, if followed religiously, leaves judges and justices to the narrow role of interpreting the plain text of the Constitution or laws as they were understood when enacted, irrespective of the consequences.<br /><br /> Originalists believe that social progress and new legal structures should come about by the acts of Congress and the president, who are elected for that purpose, rather than by the rulings of unelected, unaccountable judges. If every judge were an originalist, the effect would be that much wonderful social progress in human affairs that could come about through the decisions of courageous jurists -- such as public school desegregation and personal privacy and mobility in years past -- might not come about.<br /><br /> Yet originalists argue that federal jurists are the least equipped to advance social progress; they are often old, are never elected and have no accountability to the public.<br /><br /> Thus, it is on this philosophical fulcrum, more than on any other, that senators should examine Judge Gorsuch's thinking. In this context, they can also ask him whether our rights come from the government or from our humanity. They can ask how he views fundamental liberties. Can the court pick and choose which rights are highly protected from government interference and thus are difficult for the government to regulate and which are not? If privacy and travel -- neither of which is mentioned by name in the Constitution -- are fundamental liberties, why isn't freedom of contract, which is mentioned by name?<br /><br /> On these issues alone -- originalism and fundamental liberties -- the senators could find from his answers a blueprint to his thinking, and Judge Gorsuch could reply in meaningful ways without prejudging any cases.<br /><br /> But the Senate is a political body, and its members are politicians. One of the reasons Justice Scalia gave for rejecting as an interpretive tool the statements made by members of Congress when they passed any legislation under scrutiny is the truism that politicians have only one goal in their work, no matter what they are saying -- to get re-elected. The senators examining Judge Gorsuch are probably more concerned with that than with doing the right thing for the court. I hope that in this respect, I am wrong, as I have been before.</p>Judge Andrew P. Napolltano2017-03-23T07:00:00ZJudge Napolitano: Did Obama Spy on Trump?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitano:-Did-Obama-Spy-on-Trump/432142516219631557.html2017-03-16T07:00:00Z2017-03-16T07:00:00Z<p>The question of whether former President Barack Obama actually spied on President Donald Trump during the 2016 presidential campaign and transition has been tantalizing Washington since President Trump first made the allegation nearly two weeks ago. Since then, three investigations have been launched -- one by the FBI, one by the House of Representatives and one by the Senate. Are the investigators chasing a phantom, or did this actually happen?<br /><br /> Here is the back story.<br /><br /> Obama would not have needed a warrant to authorize surveillance on Trump. Obama was the president and as such enjoyed authority under the Foreign Intelligence Surveillance Act to order surveillance on any person in America, without suspicion, probable cause or a warrant.<br /><br /> FISA contemplates that the surveillance it authorizes will be for national security purposes, but this is an amorphous phrase and an ambiguous standard that has been the favorite excuse of most modern presidents for extraconstitutional behavior. In the early 1970s, President Richard Nixon used national security as a pretext to deploying the FBI and CIA to spy on students and even to break in to the office of the psychiatrist of Daniel Ellsberg, one of his tormentors.<br /><br /> FISA was enacted in the late 1970s to force the federal government to focus its surveillance activities -- its domestic national security-based spying -- on only those people who were more likely than not agents of a foreign government. Because FISA authorizes judges on the Foreign Intelligence Surveillance Court to make rules and establish procedures for surveillance -- essentially lawmaking -- in secret, the public and the media have been largely kept in the dark about the nature and extent of the statute and the legal and moral rationale for the federal government's spying on everyone in the U.S.<br /><br /> The mass spying that these judges have ruled FISA authorizes is directly counter to the wording, meaning and purpose of FISA itself, which was enacted to prevent just what it has in fact now unleashed.<br /><br /> We now know indisputably that this secret FISA court -- whose judges cannot keep records of their own work and have their pockets and briefcases checked by guards as they enter and leave the courthouse -- has permitted all spying on everyone all the time.<br /><br /> The FISA court only hears lawyers for the government, and they have convinced it that it is more efficient to capture the digital versions of everyone's phone calls, texts, emails and other digital traffic than it is to force the government -- as the Constitution requires -- to focus on only those who there is reason to believe are more likely than not engaging in unlawful acts.<br /><br /> When FISA was written, telephone surveillance was a matter of wiretapping -- installing a wire onto the target's telephone line, either inside or outside the home or business, and listening to or recording in real time the conversations that were audible on the tapped line.<br /><br /> Today the National Security Agency has 24/7 access to the mainframe computers of all telecom providers and all computer service providers and to all digital traffic carried by fiber optics in the U.S. The NSA has had this access pursuant to FISA court orders issued in 2005 and renewed every 90 days. The FISA court has based its rulings on its own essentially secret convoluted logic, never subjected to public scrutiny. That has resulted in the universal surveillance state in which we in America now live. The NSA has never denied this.<br /><br /> Thus, in 2016, when Trump says the surveillance of him took place, Obama needed only to ask the NSA for a transcript of Trump's telephone conversations to be prepared from the digital versions that the NSA already possessed. Because the NSA has the digital version of every telephone call made to, from and within the U.S. since 2005, if President Obama last year wanted transcripts of Trump's calls made at any time, the NSA would have been duty-bound to provide them, just as it would be required to provide transcripts of Obama's calls today if President Trump wanted them.<br /><br /> But if Obama did order the NSA to prepare transcripts of Trump's conversations last fall under the pretext of national security -- to find out whether Trump was communicating with the Russians would have been a good excuse -- there would exist somewhere a record of such an order. For that reason, if Obama did this, he no doubt used a source on which he'd leave no fingerprints.<br /><br /> Enter James Bond.<br /><br /> Sources have told Fox News that the British foreign surveillance service, the Government Communications Headquarters, known as GCHQ, most likely provided Obama with transcripts of Trump's calls. The NSA has given GCHQ full 24/7 access to its computers, so GCHQ -- a foreign intelligence agency that, like the NSA, operates outside our constitutional norms -- has the digital versions of all electronic communications made in America in 2016, including Trump's. So by bypassing all American intelligence services, Obama would have had access to what he wanted with no Obama administration fingerprints.<br /><br /> Thus, when senior American intelligence officials denied that their agencies knew about this, they were probably being truthful. Adding to this ominous scenario is the fact that three days after Trump's inauguration, the head of GCHQ, Robert Hannigan, abruptly resigned, stating that he wished to spend more time with his family.<br /><br /> I hope the investigations of Trump's allegation discover and reveal the truth -- whatever it is. But the lesson here is terribly serious. We face the gravest threat to personal liberty since the Alien and Sedition Acts of 1798 proscribed criticism of the government. We have an unelected, unnamed, unaccountable elite group in the intelligence community manipulating the president at will and possessing intimate, detailed knowledge about all of us that it can reveal. We have statutes that have given the president unconstitutional powers that have apparently been used. And we have judges on secret courts facilitating all this as if the Constitution didn't exist.<br /><br /> For how much longer will we have freedom?</p>Judge Andrew P. Napolltano2017-03-16T07:00:00ZJudge Napolitano: Congress Created a MonsterJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitano:-Congress-Created-a-Monster/-188054475524832542.html2017-03-09T08:00:00Z2017-03-09T08:00:00Z<p>Those of us who believe that the Constitution means what it says have been arguing since the late 1970s that congressional efforts to strengthen national security by weakening personal liberty are unconstitutional, un-American and ineffective. The Foreign Intelligence Surveillance Act, which Congress passed in the aftermath of President Richard Nixon's use of the CIA and the FBI to spy on his political opponents, has unleashed demons that now seem beyond the government's control and are more pervasive than anything Nixon could have dreamed of.<br /><br /> This realization came to a boiling point last weekend when President Donald Trump accused former President Barack Obama of monitoring his telephone calls during the 2016 presidential election campaign. Can a U.S. president legally spy on a political opponent or any other person in America without any suspicion, probable cause or warrant from a judge? In a word, yes.<br /><br /> Here is the back story.<br /><br /> The president can order the National Security Agency to spy on anyone at any time for any reason, without a warrant. This is profoundly unconstitutional but absolutely lawful because it is expressly authorized by the FISA statute.<br /><br /> All electronic surveillance today, whether ordered by the president or authorized by a court, is done remotely by accessing the computers of every telephone and computer service provider in the United States. The NSA has 24/7/365 access to all the mainframe computers of all the telephone and computer service providers in America.<br /><br /> The service providers are required by law to permit this access and are prohibited by law from complaining about it publicly, challenging it in court or revealing any of its details. In passing these prohibitions, Congress violated the First Amendment, which prohibits it from infringing upon the freedom of speech.<br /><br /> The fruits of electronic surveillance cannot be used in criminal prosecutions but can be shared with the president. If they are revealed publicly, the revelation constitutes computer hacking, a federal crime. <br /><br />Nevertheless, some of what was overheard from telephone conversations between the Russian ambassador to the U.S. and former Lt. Gen. Michael Flynn, Trump's former national security adviser, was revealed to the public -- a revelation that profoundly disturbed the White House and many in the intelligence community and constituted a crime.<br /><br /> The original purpose of FISA was to place the judiciary as an intermediary between the nation's spies and the foreign agents we all know are among us. The theory was that the NSA would first need to demonstrate to a secret court probable cause that the target of the spying is an agent of a foreign power and this would restrain the NSA from spying on ordinary Americans. This probable cause of foreign agency was a dramatic congressional rejection of the constitutional standard -- namely, probable cause of crime -- for the issuance of warrants. Foreign agency is not a crime.<br /><br /> This congressional rejection of constitutional norms began the slippery slope in which the foreign agency standard has morphed by legislation and by secret interpretations of the Foreign Intelligence Surveillance Court to probable cause of foreign personhood to probable cause of talking to a foreign person to probable cause of being able to talk to a foreign person to -- dropping the probable cause standard altogether -- anyone who speaks to anyone else who could speak to a foreign person.<br /><br /> This Orwellian and absurd expansion was developed by spies and approved by judges on the FISA court. The NSA argued that it would be more efficient to spy on everyone in the United States than to isolate bad people, and the court bought that argument.<br /><br /> Hence, FISA warrants do not name particular people or places as their targets as the Constitution requires. Rather, they merely continue in place the previous warrants, which encompass everyone in the country. FISA warrants are general warrants, allowing intelligence agents to listen to whomever they wish and retain whatever they hear. General warrants are expressly prohibited by the Fourth Amendment, which requires that all warrants for all purposes be based on probable cause of crime and particularly describe the person or thing to be seized -- e.g., a conversation -- or the place to be searched.<br /><br /> Even though the NSA already has the legal, though unconstitutional, authority to capture any phone conversation or computer keystroke it wishes, its 60,000 agents lack the resources to listen to all conversations or read all electronic communications in real time. But it does capture the digital versions of all computer keystrokes made in or to the U.S. and all conversations had within the U.S. or involving someone in the U.S.; it has been doing so since 2005. And it can download any conversation or text or email at will.<br /><br /> That's why the recent argument that Obama ordered the NSA to obtain a FISA warrant for Trump's telephone calls and a judge issued a warrant for them is nonsense. The NSA already has a digital version of every call Trump has made or received since 2005. Because the NSA -- which now works for Trump -- is a part of the Defense Department, it is subject to the orders of the president in his capacity as commander in chief. So if the commander in chief wants something that a military custodian already has or can create -- such as a transcript of an opponent's conversations with political strategists during a presidential campaign -- why would he bother getting a warrant? He wouldn't.<br /><br /> All of this leads to information overload -- so much material that the communications of evil people are safely hidden in with the mountain of data from the rest of us. The NSA captures the digital equivalent -- if printed -- of 27 times the contents of the Library of Congress every year.<br /><br /> All of this also leads to the monstrous power of the NSA to manipulate, torment and control the president by selectively concealing and selectively revealing data to him. The Constitution does not entrust such power to anyone in government. But Congress has given it.<br /><br /> All of this also substantially impairs a fundamental personal liberty, the right to be left alone -- a right for which we seceded from Great Britain, a right guaranteed by the Fourth Amendment and a right for which we fought wars against tyrants who we feared would take it from us.<br /><br /> Yet after we won those wars, we permitted our elected representatives to crush that right. Those faithless representatives have created a monster that has now turned on us.</p>Judge Andrew P. Napolltano2017-03-09T08:00:00ZNapolitano: Concealing and RevealingJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Napolitano:-Concealing-and-Revealing/272033665210404048.html2017-03-02T08:00:00Z2017-03-02T08:00:00Z<p>Last week, President Donald Trump erupted with fury over a series of public revelations of private facts -- some top-secret and some office gossip -- that painted him and his White House in a bad light. The president ordered the FBI to investigate some of these so-called leaks and his own White House counsel to investigate others.<br /><br /> There are numerous issues related to the leaking of government information. They include the leaking of classified information, the leaking of confidential communications and the publishing of leaked material.<br /> Here is the back story.<br /><br /> It is a felony to reveal classified information to any person who lacks a classified clearance, as some in the intelligence community have recently done to embarrass, control, intimidate or infuriate the president. The National Security Agency employs over 60,000 domestic spies, but they work in compartmentalized areas. Thus, not all of them have access to all the data collected by all of their colleagues. Only about 100 spies have access to the top-secret data that was leaked about the president.<br /><br /> When members of the intelligence community leaked lurid allegations about the future president's alleged behavior in a Moscow hotel room, which he has vehemently denied, and when some leaked the partial transcripts of telephone conversations between retired Lt. Gen. Michael Flynn and the Russian ambassador to the U.S. -- shortly before Flynn became the president's national security adviser -- and when some leaked an intelligence report that contradicted the president's publicly stated conclusions on the likelihood of dangerous people immigrating to the U.S. from the seven predominately Muslim countries named in the president's now enjoined temporary travel ban, one can understand the presidential anger.<br /><br /> And leaks are a two-sided coin. Adding to Trump's woes caused by too much revealing is the other side of that coin -- too much concealing. This comes into play when one has a duty to reveal. That duty arises from the legal obligation of spies to pass on to their superiors -- and ultimately to the president -- all of the material information they have acquired about America's friends and enemies.<br /><br /> Selectively concealing and revealing this type of intelligence data, thereby manipulating the presidential judgment, when one has a duty to reveal substantially all of it is a form of interference with a governmental function -- namely, the president's exercise of his judgment -- and that is a felony.<br /><br /> As if all this were not enough for a young presidency to deal with, Trump finds himself with a White House staff leaking to the press Oval Office gossip about confidential conversations from within the White House that the participants in those conversations had every reason to believe would not be made public. This resulted in the temporary seizure of government-issued cellphones held by a dozen or so staffers so their bosses could learn whether any had spoken to the press. The cellphones episode was itself leaked, apparently by a participant not happy with it.<br /><br /> What's going on here?<br /><br /> These events are either the growing pains of a new presidential administration, still partially staffed by those loyal to former President Barack Obama, or the product of sinister forces from people attempting to exercise their own judgment about America's foes by frustrating and manipulating the judgment of the president -- whom the voters elected to exercise the constitutional powers to make those judgment calls. The latter situation would be perilous, as it would mean we have unelected, unaccountable and unnamed people pulling the levers of power in the field of national security.<br /><br /> The leaks of confidential communications from within the White House may be a pain in the neck for the president, but they are not criminal. And generally, a boss can look at an employee's cellphone, as long as the employer of the boss and the employee owns the phone -- except when the employer is the government. The Fourth Amendment insulates government employees from governmental reach into its employees' cellphones. Absent an employee's waiving his Fourth Amendment rights, the government may not seize work-related (governmental) or personal phones without a search warrant.<br /><br /> Can the media publish these leaks?<br /><br /> In a word, yes. The media may publish anything that is of material interest to the public, notwithstanding its level of secrecy or how it was acquired. The First Amendment -- which the courts have construed to treat the media as the eyes and ears of the public -- protects absolutely the publication by the media of leaked data, whether gossip or top-secret, that the public wants to hear.<br /><br /> The courts have also ruled that everything about the president is of material public interest -- meaning no criminal or civil action can be taken against the media for the publication of any leaked materials that reflect on the president as a person or as a government official. When The New York Times published a probably stolen copy of Trump's tax returns, it did so with impunity.<br /><br /> One can see why Trump rails against the press. Yet he has taken an oath to preserve, protect and defend the very constitutional principles that protect and liberate a free press from the anger of the government, no matter how well-grounded that anger may be. One of his predecessors who was savaged by the press, Thomas Jefferson, wrote that accountability and transparency in government are of such overriding value that he'd prefer newspapers without a government to a government without newspapers.</p>Judge Andrew P. Napolltano2017-03-02T08:00:00ZThe Chickens Have Come Home to RoostJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Chickens-Have-Come-Home-to-Roost/845929682111098733.html2017-02-23T08:00:00Z2017-02-23T08:00:00Z<p>Last week, The Wall Street Journal revealed that members of the intelligence community -- part of the deep state, the unseen government within the government that does not change with elections -- now have acquired so much data on everyone in America that they can selectively reveal it to reward their friends and harm their foes. Their principal foe today is the president of the United States.<br /><br /> Liberty is rarely lost overnight. The wall of tyranny often begins with benign building blocks of safety -- each one lying on top of a predecessor -- eventually collectively constituting an impediment to the exercise of free choices by free people, often not even recognized until it is too late.<br /><br /> Here is the back story.<br /><br /> In the pre-Revolutionary era, British courts in London secretly issued general warrants to British government agents in America. The warrants were not based on any probable cause of crime or individual articulable suspicion; they did not name the person or thing to be seized or identify the place to be searched. They authorized agents to search where they wished and seize what they found.<br /><br /> The use of general warrants was so offensive to our Colonial ancestors that it whipped up more serious opposition to British rule and support for the revolutionaries than the "no taxation without representation" argument did. And when it came time for Americans to write the Constitution, they prohibited general warrants in the Fourth Amendment, the whole purpose of which was to guarantee the right to be left alone by forcing the government to focus on bad guys and prohibit it from engaging in fishing expeditions. But the fishing expeditions would come.<br /><br /> In 1978, Congress passed the Foreign Intelligence Surveillance Act, which was intended to rein in the government spying on Americans that had been unleashed by the Nixon administration. FISA established a secret court and permitted it to issue warrants authorizing spying on agents of foreign governments when physically present in the United States.<br /><br /> People born in foreign countries who are here for benevolent or benign or even evil purposes have the same constitutional protections as those of us born here. That's because the critical parts of the Constitution that insulate human freedom from the government's reach protect "persons," not just citizens. But FISA ignored that.<br /><br /> And FISA was easy for the government to justify. It was a pullback from Richard Nixon's lawlessness. It required the feds to seek a warrant from federal judges. The targets were not Americans. Never mind, the argument went, that FISA has no requirement of showing any probable cause of crime or even articulable suspicion on the part of the foreign target; this will keep us safe. Besides, the government insisted, it can't be used against Americans.<br /><br /> That argument was bought by presidents, members of Congress and nearly all federal courts that examined it. We don't know whether the authors of this scheme really wanted federal spies to be able to spy on anyone at will, but that is where we are today. Through secret courts whose judges cannot keep records of their own decisions and secret permissions by select committees of Congress whose members cannot tell their constituents or other members of Congress what they have learned in secret, FISA has morphed so as to authorize spying down a slippery slope of targets, from foreign agents to all foreigners to anyone who communicates with foreigners to anyone capable of communicating with them.<br /><br /> The surveillance state regime today permits America's 60,000 military and civilian domestic spies to access in real time all the landline and mobile telephone calls and all the desktop and mobile device keystrokes and all the digital data created and used by anyone in the United States. The targets today are not just ordinary Americans; they are justices on the Supreme Court, military brass in the Pentagon, agents in the FBI, local police in cities and towns, and the man in the Oval Office.<br /><br /> The British system that arguably impelled our secession in 1776 is now here on steroids.<br /><br /> Enter the outsider as president. Donald Trump has condemned the spying and leaking, as he is a victim of it. While he was president-elect, the spies told him they knew of his alleged misbehaviors -- vehemently denied -- in a Moscow hotel room. Last week, his White House staff was shaken by what the spies did with what they learned from a former Trump aide.<br /><br /> Trump's former national security adviser, retired Lt. Gen. Michael Flynn, himself a former military spy, spoke to the Russian ambassador to the United States in December via telephone in Trump Tower. It was a benign conversation. He knew it was being monitored, as he is a former monitor of such communications. But he mistakenly thought that those who were monitoring him were patriots as he is. They were not.<br /><br /> They violated federal law by revealing in part what Flynn had said, and they did so in a manner to embarrass and infuriate Trump.<br /><br /> Why would they do this? Perhaps because they feared Flynn's being in the White House, since he knows the power and depth of the deep state. Perhaps to send a message to Trump because he once compared American spies to Nazis. Perhaps because they believe that their judgment of the foreign dangers America faces is superior to the president's. Perhaps because they hate and fear the outsider in the White House.<br /><br /> The chickens have come home to roost. In our misguided efforts to keep the country safe, we have neglected to keep it free. We have enabled a deep state to become powerful enough to control a powerful president. We have placed so much data and so much power in the hands of unelected, unaccountable, opaque spies that they can use it as they see fit -- even to the point of committing federal felonies. Now some have boasted that they can manipulate and thus control the president of the United States by selectively revealing and concealing what they know about anyone, including the president himself.<br /><br /> This is a perilous state of affairs, brought about by the maniacal passion for surveillance spawned under George W. Bush and perfected under Barack Obama -- all with utter indifference to the widespread constitutional violations and permanent destruction of personal liberties. This is not the government the Framers gave us. But it is one far more dangerous to human freedom than the one from which they seceded in 1776.</p>Judge Andrew P. Napolltano2017-02-23T08:00:00ZIntellectual Honesty and Political IndifferenceJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Intellectual-Honesty-and-Political-Indifference/-576656713220473460.html2017-02-16T08:00:00Z2017-02-16T08:00:00Z<p>Over the past weekend, Trump administration officials offered harsh criticisms of the judicial interference with the enforcement of the president's immigration order. The Jan. 27 order suspended the immigration privileges of all refugees from Syria indefinitely and all immigrants from seven designated countries for 90 days.<br /><br /> After a federal district judge in Seattle enjoined the federal government from enforcing the executive order and the 9th U.S. Circuit Court of Appeals upheld that injunction, President Donald Trump's folks pounced.<br /> They argued that we have an imperial judiciary that thinks it has the final say on public policy -- one that will freely second-guess the president in areas that are exclusively his under the Constitution.<br /><br /> Here is the back story.<br /><br /> The Constitution provides for essentially a shared responsibility in the creation of laws. Congress passes bills, and the president signs them into law. Sometimes bills become laws over the president's veto. Bills are often proposed by presidents and disposed of by Congress.<br /><br /> When challenges to the meaning or application of the laws are properly made, the judiciary decides what the laws mean and whether they are consistent with the Constitution. My point is that there are substantial roles for the legislative and executive branches in the process of lawmaking and that there is an exclusive role for the judiciary in interpreting the meaning of the law.<br /><br /> When it comes to articulating and carrying out the foreign policy of the nation, the president is superior to the other branches. Though the House of Representatives and the Senate appropriate money for foreign policy expenses and the Senate ratifies treaties and confirms ambassadors, the president alone determines who our friends and enemies are. Congress has given him many tools with which to make and carry out those determinations.<br /><br /> Among those tools is substantial discretion with respect to immigration. That discretion permits the president, on his own, to suspend the immigration privileges of any person or group he believes poses a danger to national security. Though the effect of his suspension may, from time to time, fall more heavily on one religious group, the purpose of that suspension may not be to target a religious group.<br /><br /> Can an immigrant who has been banned from entering the United States challenge the ban?<br /><br /> In a word, yes. Once an immigrant has arrived here, that person has due process rights (the right to know the law, to have a hearing before a fair and neutral authority and to appeal to a superior neutral and fair authority). This is so because the Constitution protects all persons.<br /><br /> The challenge to the president's exercise of his discretion cannot be based on a political disagreement with him or an objection to the inconveniences caused by the enforcement; it can only be based on an alleged constitutional violation. In the Seattle case, the states of Washington and Minnesota had sued the president and alleged that he had issued his Jan. 27 order to target Muslims, many of whom study or work at state universities.<br /><br /> Can the courts hear such a case?<br /><br /> In a word, yes; but they must do so with intellectual honesty and political indifference. The judiciary is an independent branch of the government, and it is coequal to the president and the Congress. It is answerable to its own sense of scrupulous intellectual honesty about the Constitution. It is not answerable to the people. Yet in return for the life tenure and unaccountability its members enjoy, we expect political indifference -- that judges' decisions shall not be made in order to produce their own politically desired outcomes.<br /><br /> It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine with finality whether a governmental actor used governmental power consistent with the Constitution and the statutes. When the courts do this with intellectual honesty and indifference to the political outcome, they are doing their job, and we should accept the outcome.<br /><br /> Must the president justify to the satisfaction of judges his exercise of discretion in suspending immigration privileges?<br /><br /> In a word, sometimes; he only needs to do so when a fundamental liberty, such as the free exercise of religion, is at stake -- and not when state universities might temporarily lose students or faculty or the enrichment that those from foreign lands often bring.<br /><br /> This can be a dangerous sea for judges to navigate because judicially compelling the president to justify his development of the nation's foreign policy might expose that development to unwanted eyes and ears who could cause the nation ill in perilous times.<br /><br /> Suppose intelligence officials told the president they believe that Islamic State-inspired lone wolves are about to enter the United States from three of the seven countries but some of them have multiple passports and may leave from one of the other four countries. That would clearly justify the president's executive order, but it would be foolhardy for him to explain in a court how he came to know that and detrimental to then have to await a court's approval while the evildoers arrive here.<br /><br /> In our democracy, the president and members of Congress make promises and then convince us that they have kept them so we will re-elect them. The whole purpose of an independent judiciary is to be anti-democratic -- to protect the life, liberty and property of all people from the unconstitutional behavior of the two political branches of the government. When the judiciary does this, it is not being imperial; it is doing what the Constitution requires. If this were not the case, then nothing would prevent the political branches from trampling the rights of an unpopular minority.<br /><br /> The late Justice Robert Jackson once famously quipped that the Supreme Court is infallible because it is final; it is not final because it is infallible. But that infallibility -- if you will -- must be tempered by fidelity to the rule of law, which demands the intellectual honesty and political indifference that the Constitution requires for the personal freedoms of all of us to survive.</p>Judge Andrew P. Napolltano2017-02-16T08:00:00ZThe President and the CourtsJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-President-and-the-Courts/-163754345628308080.html2017-02-09T08:00:00Z2017-02-09T08:00:00Z<p>Last week, in a public courtroom in the federal courthouse in Seattle, the states of Washington and Minnesota -- after suing President Donald Trump, alleging injury caused by his executive order that suspended the immigration of all people from seven foreign countries -- asked a federal judge to compel the president and all those who work for him to cease enforcing the order immediately. After a brief emergency oral argument, the judge signed a temporary restraining order, which barred the enforcement of the president's order everywhere in the United States.<br /><br /> The president reacted with anger, referring to the judge as a "so-called judge," and immigrant rights groups praised the judicial intervention as a victory for the oppressed. The president meant, I think, that Judge James L. Robart had not acted properly as a judge by second-guessing him -- that he had acted more like a politician; and the immigrant rights groups felt, I think, that the United States was once again a beacon of hope for refugees.<br /><br /> Here is the back story.<br /><br /> A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. Trump exercised that authority in accordance with the 1952 law when he signed his Jan. 27 order banning all immigration from the seven named countries.<br /><br /> When the president exercises powers granted to him by the Constitution or federal statues or when Congress passes bills, one cannot simply sue the government in federal court because one does not like what has been done. That is so because the Constitution has preconditions for a lawsuit in federal court. One of those preconditions is what lawyers and judges call "standing." Standing means that the plaintiff has alleged and can most likely show that the defendant has caused the plaintiff an injury in fact, distinct from all others not in the case.<br /><br /> Hence, it is curious that the plaintiffs in the Seattle case were not people whose entry had been barred by Trump's order but rather the governments of two states, each claiming to sue in behalf of people and entities resident or about to be resident in them. The court should have dismissed the case as soon as it was filed because of long-standing Supreme Court policy that bars federal litigation alleging harm to another and permits it only for the actual injury or immediate likelihood of injury to the litigant.<br /><br /> Nevertheless, the Seattle federal judge heard oral argument on the two states' emergency application for a temporary restraining order against the president. During that oral argument, the judge asked a lawyer for the Department of Justice how many arrests of foreign nationals from the seven countries singled out by the president for immigration suspension there have been in the United States since 9/11. When the DOJ lawyer said she did not know, the judge answered his own question by saying, "None."<br /><br /> He was wrong.<br /><br /> There have been dozens of people arrested and convicted in the United States for terrorism-related crimes since 9/11 who were born in the seven countries. Yet even if the judge had been correct, his question was irrelevant -- and hence the answer meaningless -- because it does not matter to a court what evidence the president relied on in this type of order. This is the kind of judicial second-guessing -- substituting the judicial mind for the presidential mind -- that is impermissible in our system. It is impermissible because the Constitution assigns to the president alone nearly all decision-making authority on foreign policy and because Congress has assigned to the president the power of immigration suspension as a tool with which to implement foreign policy.<br /><br /> These rules and policies -- the requirement of standing before suing and the primacy of the president in making foreign policy -- stem directly from the Constitution. Were they not in place, then anyone could sue the government for anything and induce a federal judge to second-guess the president. That would convert the courts into a super-legislature -- albeit an unelected, unaccountable, opaque one.<br /><br /> I am not suggesting for a moment that the courts have no place here. Rather, they have a vital place. It is to say what the Constitution means, say what the statutes mean and determine whether the government has exercised its powers constitutionally and legally. It is not the job of judges to decide whether the government has been smart or prudent, though.<br /><br /> One of the arguments made by the state of Washington to explain why it had standing was laughable. Washington argued that corporations located in Washington would suffer the irreparable loss of available high-tech-qualified foreign employees if the ban were upheld. Even if this were likely and even if it were provable, it would not establish injury in fact to the government of Washington. When pressed to reveal what entity Washington was trying to protect, it enumerated a few familiar names, among which was Microsoft.<br /> Microsoft? The government of the state of Washington is suing to protect Microsoft?! Microsoft could buy the state of Washington if Starbucks were willing to sell it.<br /><br /> I jest to make a point. The rule of law needs to be upheld. Carefully paying attention to constitutional procedure protects personal freedom. In similar environments, the late Justice Antonin Scalia often remarked that much of what the government does is stupid but constitutional and that the courts' only concern is with the latter.<br /><br /> The DOJ is now challenging the Seattle restraining order in the 9th U.S. Circuit Court of Appeals, and this case may make its way to the Supreme Court. Will federal judges be faithful to the rule of law? We shall soon find out.</p>Judge Andrew P. Napolltano2017-02-09T08:00:00ZThe President and ImmigrationJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-President-and-Immigration/-405422127626034143.html2017-02-02T08:00:00Z2017-02-02T08:00:00Z<p>This past weekend, we all saw massive public outrage in major cities throughout the country. It was directed at the Jan. 27 issuance of an executive order, signed by President Donald Trump, addressing immigration. <br /><br />With the executive order, the president ordered the suspension of entry of all refugees to the United States for 120 days, as well as anyone from Syria for an indefinite period and anyone from Iran, Iraq, Libya, Somalia, Sudan and Yemen for 90 days.<br /><br /> The crowds of protesters, which included members of Congress, called the president a tyrant. The president argued that he was lawfully protecting the country from those who might facilitate terrorist attacks here. Can he legally do this?<br /><br /> Here is the back story.<br /><br /> The Constitution expressly gives Congress the power to regulate naturalization, which is the process of becoming an American citizen. It does not expressly give it the power to regulate immigration, which is the process of legally entering the country. From 1776 to 1882, Congress recognized this distinction by staying largely silent on immigration, and thus, anyone could come here from anywhere, with the only real regulation being for public health.<br /><br /> In 1882, Congress gave itself the power to regulate immigration, contending that although the Constitution was silent on the issue, the concept of nationhood gave Congress the ability to regulate the nation's borders and thereby control who was permitted to enter from foreign countries and under what circumstances.<br /><br /> In response to economic competition from Asian immigrants in California -- and in the midst of anti-Asian racial animus -- Congress passed the Chinese Exclusion Act of 1882, which limited the number of immigrants from China for 10 years. In 1892, Congress extended the law for another 10 years, and in 1902, Congress made the law permanent. In 1924, Congress passed the Johnson-Reed Act, which restricted entry into the United States through quotas with respect to national origins. The quotas were capped in 1929, reduced in 1943 and substantially expanded in 1965.<br /><br /> In 1952, Congress passed the Immigration and Nationality Act, which expressly authorized the president to suspend the immigration of any person, class of people or group of people into the United States for public health, public safety or national security reasons.<br /><br /> The courts have upheld this presidential power because under our system, immigration materially affects the nation's foreign policy and foreign policy is constitutionally the domain of the president -- with Congress' role being limited to the senatorial confirmation of treaties and ambassadors and to authorization of money for the president to spend. Yet the courts have limited the president's exercise of this power so that he cannot base it on First Amendment-protected liberties, such as the freedoms of speech, religion and association. So he cannot bar an immigrant because of the immigrant's political views, religion or colleagues.<br /><br /> In 1979, President Jimmy Carter exercised this presidential power to bar anyone from Iran from entering the country until the hostage crisis was resolved. In 2011, President Barack Obama used this presidential power to bar anyone from Iraq from entering the country for six months.<br /><br /> Enter President Trump.<br /><br /> As a candidate, Trump promised that he would secure the nation's borders from those whom he deems harmful to national security for limited periods of time -- at least until he and those under him could determine a more accurate mechanism for separating the true refugees from the ones seeking entry for nefarious purposes. On his eighth day in office, he did just that.<br /><br /> The reaction was swift, loud and seemingly everywhere as foreign-born people, many with green cards and visas, were stopped and detained at the nation's international airports last Saturday. Over the weekend, federal judges in New York City, Boston, Virginia and Seattle ruled that Trump's order could not apply to green card holders or those who received valid State Department-issued visas based on the pre-executive order protocol.<br /><br /> To its credit, the government recognized that the language of the executive order needed to be clarified because green card holders, no matter the country of origin, have the same right of exit and entry as citizens. Moreover, the government cannot constitutionally give anyone a benefit -- such as a visa -- and then nullify the benefit because it changed the issuing standards afterward. So the Trump changes can be prospective only.<br /><br /> Where does this leave us?<br /><br /> Expect numerous challenges in Congress and in the courts to Trump's order because, the challengers will argue, though its stated purpose was not to bar a religious group, its effect is largely to bar Muslims. For sure, the courts will address this. The purpose/effect distinction -- which exists in many areas of the law, such as school desegregation, legislative apportionment and voting rights -- has not been accepted by the courts against a president for a temporary immigration ban because the courts have often deferred to presidents on foreign policy.<br /><br /> Is the ban just?<br /><br /> Everyone knows we are a nation of immigrants. Three of my grandparents immigrated here as children. Most people recognize that all people have the natural right to travel, which means they can seek entry here; but the country has accepted the ideas that our borders are not open, that the welfare state here is not without financial limits and that in perilous times such as today, immigration is largely and legally in the hands of the president, whether one has voted for him or not.<br /><br /> Yet like all governmental powers, particularly those that often clash with natural rights when they are exercised, the power to regulate immigration must be exercised narrowly. Many reading this are here because someone left another country for the freedoms that are respected here. Those freedoms are natural to everyone and will always draw people here.<br /><br /> The government can only morally and constitutionally interfere with personal freedom for the most compelling of reasons and utilizing the least restrictive means. Is the government faithful to that well-recognized rule?<br /><br /> We shall soon see.</p>Judge Andrew P. Napolltano2017-02-02T08:00:00ZDonald Trump, RevolutionaryJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Donald-Trump-Revolutionary/-134374779125184720.html2017-01-26T08:00:00Z2017-01-26T08:00:00Z<p>Within four hours of becoming president of the United States, Donald Trump signed an executive order intended to limit immediately the effects of the Patient Protection and Affordable Care Act (Obamacare) in ways that are revolutionary.<br /><br /> With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor's administration. How did this happen? How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it?<br /><br /> Here is the back story.<br /><br /> When Obamacare went through Congress in 2010, all Democrats in Congress supported it and all congressional Republicans were opposed. The crux of their disagreement was the law's command that everyone in the United States obtain and maintain health insurance -- a command that has come to be known as "the individual mandate."<br /><br /> Republicans argued that Congress was without the authority to compel people to enter the marketplace by purchasing a product -- that such decisions should be freely made by individuals and that that freedom was protected from governmental interference by the Constitution. Democrats argued that the commerce clause of the Constitution, which permits Congress to regulate commerce among the states, also permits it to compel commercial activity on the part of individuals who make up a highly regulated component of interstate commerce.<br /><br /> To ensure compliance with the individual mandate, the law provided that the IRS would collect the fair market value of a bare-bones insurance policy from those who did not obtain and maintain one. The government would then take that money and purchase a health insurance policy for that individual who rejected the law's command.<br /><br /> Though Congress did not call it a tax and the government's lawyers uniformly and consistently denied in all courts where it was challenged that it was a tax and President Barack Obama rejected the idea that it was a tax and even the lawyers for the challengers denied it was a tax, a 5-4 majority in the Supreme Court characterized the money collected by the IRS from noncompliant individuals as a tax.<br /><br /> This is profoundly significant for constitutional purposes because though Congress cannot regulate anything it wants, Congress can tax anything it wants, as long as the tax falls equally on those in the class of people who are paying it. This unheard-of characterization of a non-tax as a tax was necessary to salvage Obamacare before the high court because a different 5-4 majority in the same case ruled that the Republican congressional argument was essentially correct -- that the commerce clause does not empower Congress to compel commercial activity.<br /><br /> All of this has been debated loud and long since the law was enacted in 2010, validated by the Supreme Court in 2012 and came into Trump's crosshairs in the Republican presidential primaries and again in the general election campaign.<br /><br /> Trump argued that the government cannot compel commercial activity, even as part of a large regulatory scheme, because the Constitution protects everyone's right to purchase a lawful good or not to purchase one.<br /><br /> He also asserted that Obamacare does not make economic sense because its regulation of the practice of medicine and its administration of health insurance have resulted in a diminution of choices for consumers, which in turn has raised premiums, as well as deductibles, and chased primary care physicians from the marketplace. The Obama mantra that you could keep your doctor and your health insurance under Obamacare proved to be patently false, Trump argued.<br /><br /> When Trump promised that as president -- on "day one" -- he would begin to dismantle Obamacare, some Republicans, many members of the press and most Democrats laughed at him. They are laughing no longer because the first executive order he signed on Jan. 20 directed those in the federal government who enforce Obamacare to do so expecting that it will soon not exist.<br /><br /> He ordered that regulations already in place be enforced with a softer, more beneficent tone, and he ordered that no penalty, fine, setoff or tax be imposed by the IRS on any person or entity who is not complying with the individual mandate, because by the time taxes are due on April 15, the IRS will be without authority to impose or collect the non-tax tax, as the individual mandate will no longer exist. Why take money from people that will soon be returned?<br /><br /> Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government's laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.<br /><br /> This is radical coming from any president in the modern era of government-can-do-no-wrong. It is far more Thomas Jefferson, the small-government champion with whom Trump has never been associated, than it is Theodore Roosevelt, the super-regulator whom Trump has stated he admires. It recognizes the primacy and dignity of the individual and the fallibility of the state. It acknowledges the likely demise of Obamacare. It is utterly without precedent since Jefferson's presidency.<br /><br /> Trump's revolutionary act is a breeze of freedom on a sea of regulation. It recognizes something modern governments never admit -- that they can be and have been wrong. It is exactly as Trump promised.</p>Judge Andrew P. Napolltano2017-01-26T08:00:00ZA Parting Shot at Personal FreedomJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/A-Parting-Shot-at-Personal-Freedom/300513688764361700.html2017-01-19T08:00:00Z2017-01-19T08:00:00Z<p>On Jan. 3, outgoing Attorney General Loretta Lynch secretly signed an order directing the National Security Agency -- America's 60,000-person-strong domestic spying apparatus -- to make available raw spying data to all other federal intelligence agencies, which then can pass it on to their counterparts in foreign countries and in the 50 states upon request. She did so, she claimed, for administrative convenience. Yet in doing this, she violated basic constitutional principles that were erected centuries ago to prevent just what she did.<br /><br /> Here is the back story.<br /><br /> In the aftermath of former President Richard Nixon's abusive utilization of the FBI and CIA to spy on his domestic political opponents in the 1960s and '70s -- and after Nixon had resigned from office in the wake of all that -- Congress passed the Foreign Intelligence Surveillance Act, which created a secret court that was charged with being the sole authority in America that can authorize domestic spying for non-law enforcement purposes.<br /><br /> The standard for a FISA court authorization was that the subject of the spying needed to be a foreign person in the United States who was an agent of a foreign power. It could be a foreign janitor in a foreign embassy, a foreign spy masquerading as a diplomat, even a foreign journalist working for a media outlet owned by a foreign government.<br /><br /> The American spies needed a search warrant from the FISA court. Contrary to the Constitution, the search warrant was given based not on probable cause of crime but rather on probable cause of the status of the person as an agent of a foreign power. This slight change from "probable cause of crime" to "probable cause of foreign agency" began the slippery slope that brought us to Lynch's terrible order of Jan. 3.<br /><br /> After the Foreign Intelligence Surveillance Act, numerous other statutes were enacted that made spying easier and that continued to erode the right to be left alone guaranteed by the Fourth Amendment. The Patriot Act permitted FBI agents to write their own search warrants for business records (including medical, legal, postal and banking records), and amendments to FISA itself changed the wording from probable cause "of foreign agency" to probable cause of being "a foreign person" to all Americans who may "communicate with a foreign person."<br /><br /> As if Americans were children, Congress made those sleight-of-hand changes with no hoopla and little serious debate. Our very elected representatives -- who took an oath to preserve, protect and defend the Constitution -- instead perverted it.<br /><br /> It gets worse.<br /><br /> The recent USA Freedom Act permits the NSA to ask the FISA court for a search warrant for any person -- named or unnamed -- based on the standard of "governmental need." One FISA court-issued warrant I saw authorized the surveillance of all 115 million domestic customers of Verizon. The governmental need standard is no standard at all, as the government will always claim that what it wants, it needs.<br /><br /> All these statutes and unauthorized spying practices have brought us to where we were on Jan. 2 -- namely, with the NSA having a standard operating procedure of capturing every keystroke on every computer and mobile device, every telephone conversation on every landline and cellphone, and all domestic electronic traffic -- including medical, legal and banking records -- of every person in America 24/7, without knowing of or showing any wrongdoing on the part of those spied upon.<br /><br /> The NSA can use data from your cellphone to learn where you are, and it can utilize your cellphone as a listening device to hear your in-person conversations, even if you have turned it off -- that is, if you still have one of the older phones that can be turned off.<br /><br /> Notwithstanding all of the above gross violations of personal liberty and constitutional norms, the NSA traditionally kept its data -- if printed, enough to fill the Library of Congress every year -- to itself. So if an agency such as the FBI or the DEA or the New Jersey State Police, for example, wanted any of the data acquired by the NSA for law enforcement purposes, it needed to get a search warrant from a federal judge based on the constitutional standard of "probable cause of crime."<br /><br /> Until now.<br /><br /> Now, because of the Lynch secret order, revealed by The New York Times late last week, the NSA may share any of its data with any other intelligence agency or law enforcement agency that has an intelligence arm based on -- you guessed it -- the non-standard of governmental need.<br /><br /> So President Barack Obama, in the death throes of his time in the White House, has delivered perhaps his harshest blow to constitutional freedom by permitting his attorney general to circumvent the Fourth Amendment, thereby enabling people in law enforcement to get whatever they want about whomever they wish without a showing of probable cause of crime as the Fourth Amendment requires. That amendment expressly forbids the use of general warrants -- search where you wish and seize what you find -- and they had never been a lawful tool of law enforcement until Lynch's order.<br /><br /> Down the slope we have come, with the destruction of liberty in the name of safety by elected and appointed government officials. At a time when the constitutionally recognized right to privacy was in its infancy, Justice Louis Brandeis warned all who love freedom about its slow demise. He wrote: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. <br /><br />The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."<br /><br /> Someday we will learn why Obama did this. I hope that when we do, it is at a time when we still have personal liberty in a free society.</p>Judge Andrew P. Napolltano2017-01-19T08:00:00ZHillary Clinton: She's BackJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hillary-Clinton:-Shes-Back/-682359529892702413.html2017-01-12T08:00:00Z2017-01-12T08:00:00Z<p>The criminal investigation of Hillary Clinton is back front and center now that the FBI has released proof that her failure to safeguard state secrets caused the secrets to fall into the hands of foreign governments, some of which wish the United States ill.<br /><br /> Even though the case against her -- which was closed and then reopened and then closed again -- is old news and she obviously is no longer a candidate to become president of the United States and has been staying below the radar for the past two months, recent developments have regenerated the case.<br /><br /> Here is the back story.<br /><br /> On July 5, FBI Director James Comey announced publicly that the FBI would recommend against seeking an indictment of Clinton for espionage -- the failure to safeguard state secrets that had been entrusted to her. He argued that though the case against her was strong -- as secretary of state, she had been extremely careless with secrets; exposed hundreds of materials that were confidential, secret and top-secret; and used non-secure mobile devices while in the territory of hostile governments -- no reasonable prosecutor would take the case.<br /><br /> Why was the decision of whether to prosecute Clinton left to Comey?<br /><br /> The FBI's job is to gather evidence of federal crimes and to present that evidence to career prosecutors in the Department of Justice for evaluation. The FBI has numerous investigative tools available to it. One of those tools is presenting evidence to a grand jury and requesting subpoenas from it. Another is presenting evidence to a federal judge and requesting search warrants from the judge. A third is obtaining the indictment of someone who is in the inner circle of the person who is the true target of the investigation and then persuading that indicted person to become a government witness.<br /><br /> None of those tools was used in the Clinton case.<br /><br /> As well, a major interference with the case occurred when Attorney General Loretta Lynch agreed to meet privately with former President Bill Clinton. He was -- and still is -- also the subject of an FBI criminal investigation. Though both Lynch and Mr. Clinton denied talking about the investigations, the attorney general took herself and senior DOJ management off the Hillary Clinton case, leaving the FBI director with the authority to decide whether to prosecute. So based on Comey's decision that no reasonable prosecutor would take the case against Mrs. Clinton, it was closed.<br /><br /> The case was briefly reopened 11 days before Election Day. The FBI announced it had stumbled upon a potential treasure-trove of emails contained in a laptop jointly owned and used by Hillary Clinton's closest aide, Huma Abedin, and her husband, former Rep. Anthony Weiner. The FBI believed at the time that the laptop contained nearly every email Abedin had received from Clinton. Weiner was under investigation for various sexual crimes, and the FBI had obtained the laptop in its search for evidence against him.<br /><br /> Then, a week later, the FBI announced that it had found nothing among the 650,000 emails in the laptop that would cause it to reopen the Clinton case, and it closed the case a second time.<br /><br /> Donald Trump argued during the last weeks of the presidential election campaign that Clinton had exposed state secrets to hostile foreign governments. FBI agents who disagreed with their boss's decision not to seek the indictment of Clinton made the same arguments. Clinton denied vehemently that she had caused any state secrets to pass into the hands of hostile foreign governments.<br /><br /> Then Trump was elected president of the United States.<br /><br /> Then Clinton left the public scene.<br /><br /> Then, last Sunday evening, during the NFL playoff game between the New York Giants and the Green Bay Packers, the FBI posted on its website more than 300 emails that Clinton had sent to an unnamed colleague not in the government -- no doubt her adviser Sid Blumenthal -- that had fallen into the hands of foreign powers. It turns out -- and the Sunday night release proves this -- that Blumenthal was hacked by intelligence agents from at least three foreign governments and that they obtained the emails Clinton had sent to him that contained state secrets. Sources believe that the hostile hackers were the Russians and the Chinese and the friendly hackers were the Israelis.<br /><br /> Last Sunday's revelations make the case against Clinton far more serious than Comey presented it to be last summer. Indeed, Sen. Jeff Sessions, who has been nominated by Trump to be attorney general and who has been a harsh critic of Clinton's, told the Senate Judiciary Committee this week that he would step aside from any further investigation of Clinton, thereby acknowledging that the investigation will probably be opened again.<br /><br /> One of the metrics that the DOJ examines in deciding whether to prosecute is an analysis of harm caused by the potential defendant. I have examined the newly released emails, and the state secrets have been whited out. Yet it is clear from the FBI analysis of them that real secrets were exposed by the nation's chief diplomat -- meaning she violated an agreement she signed right after she took office, in which she essentially promised that she would not do what she eventually did.<br /><br /> The essence of the American justice system is the rule of law. The rule of law means that no one is beneath the law's protections or above its obligations.<br /><br /> Should Clinton skate free so the Trump administration can turn the page? Should the new DOJ be compassionate toward Clinton because of her humiliating election loss and likely retirement from public life? Of course not. She should be prosecuted as would anyone else who let loose secrets to our enemies and then lied about it.</p>Judge Andrew P. Napolltano2017-01-12T08:00:00ZThe Titanic Has Set SailJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Titanic-Has-Set-Sail/-376235607293572715.html2017-01-05T08:00:00Z2017-01-05T08:00:00Z<p>Over the New Year's weekend, President Barack Obama's chief policy adviser and closest strategist, Valerie Jarrett, told a talk show host that her boss would have a happy legacy because there was an absence of scandal in his administration. When first I heard this preposterous claim, I thought I had misheard it. Yet it is apparently true that President Obama and his team somehow can overlook recent history and behave as if events with which we are all familiar never happened.<br /><br /> Here is the back story.<br /><br /> When Obama became president in 2009 and enjoyed significant Democratic majorities in both houses of Congress, he and his colleagues devoted themselves entirely to an issue nowhere in the Constitution -- health care. They did not address other issues dear to them and their base, such as guns, abortion, taxes, war, jobs and civil liberties. Rather, they sought to alter radically the relationship of the federal government to every person in America by imposing upon each of us the obligation to purchase a product -- namely, health insurance -- whether we wanted it or not.<br /><br /> The abominable statute they enacted, which has caused millions of folks to lose their primary care physician and millions more to see their premiums skyrocket and still millions more to see their full-time jobs become part-time, has acquired the nickname Obamacare.<br /><br /> Instead of reducing taxes or regulations or spending so more folks would have better-paying jobs, the president and his folks were determined to tell us all how to stay healthy. Obamacare passed on a party-line vote, with not a single vote to spare in the Senate.<br /><br /> At the time it was enacted, the president argued vociferously that the financial consequence of not obtaining health insurance -- the penalty for disobeying the law -- was not a tax. He made that argument because he had promised Democrats -- many of whom lost their congressional seats for going along with his utopian experiment -- that he would not raise taxes to accomplish his purposes.<br /><br /> When the statute was challenged in the federal courts and the various challenges were consolidated before the Supreme Court, the challengers did not dispute the claim that the penalty was not a tax. A court cannot consider arguments or evidence not put to it. For instance, in an automobile accident, if all eyewitnesses state that a traffic light in question was green at the time of the collision, the court may not find that it was red.<br /><br /> Yet notwithstanding agreement among the parties before the Supreme Court and notwithstanding the absence of any evidence that the penalty was a tax, the Supreme Court made new law by declaring this non-tax to be a tax and then ruling that Congress can tax anything it wants -- so Congress can force you to purchase a product you don't want by taxing you if you fail to make the purchase.<br /><br /> None of this is new. It is the president's known legacy. It is a legacy of the colossal failure of the central planning of one-fifth of the economy. It has resulted in an expansion of federal powers and a reduction in the availability of health care providers and is yet another glaring rejection of the Constitution as the supreme law of the land.<br /><br /> While all of this was going on, the scandals Jarrett overlooked were brewing. Operation Fast and Furious, which began in the George W. Bush administration, exploded under Obama, when the guns the feds intentionally had let slip into the hands of Mexican gangs were used to kill one of their own.<br /><br /> Then came Libya, where heavy armaments the feds secretly had passed into the hands of terrorists masquerading as rebels were used to kill the U.S. ambassador and topple a friendly government.<br /><br /> Then came the seizure of telephone records of journalists critical of the administration by the Department of Justice, which secretly convinced a federal judge that talking to a whistleblower and reporting on his questionable behavior somehow involved reporters criminally in that behavior.<br /><br /> Then came the targeting by the IRS of conservative advocacy groups by denying them tax-exempt status for political reasons.<br /><br /> Then came the Secret Service scandal in which dozens of agents were caught in sexual encounters on foreign trips in hotels where the president was staying -- encounters that involved the loss of laptops and itineraries and jeopardized the president's physical safety -- and two directors lost their jobs.<br /><br /> Then came the Edward Snowden revelations that the government was capturing every keystroke of every person using every computer and mobile device in the United States yet was still failing to keep us safe and that a senior Obama official had lied about this under oath. And all this was done without the approval of Congress, using a secret court that rationalized its way around the Constitution.<br /><br /> While all this was happening, the president was secretly using drones to kill Americans and others in foreign lands -- folks never charged with crimes -- using laughable legal authority as justification. Also, then-Secretary of State Hillary Clinton was exposing state secrets -- including the names and whereabouts of undercover American agents -- to friend and foe alike, and the FBI declined to recommend prosecution. <br /><br />And while Clinton was under investigation, her husband, former President Bill Clinton, had a private meeting on an airport tarmac with the attorney general -- whom he had once appointed a U.S. attorney -- at which they claim they discussed their grandchildren.<br /><br /> Which legacy is worse, failure or scandal? Is it any wonder Donald Trump tapped into the raw nerves of the folks the president and the Democrats forgot about and rode their anger to victory? Americans today are less free, less prosperous, less safe and trillions more in debt than we were eight years ago. Can Trump effectively change course after so much damage has been done? We soon will know.</p>Judge Andrew P. Napolltano2017-01-05T08:00:00ZOffice Pool 2017Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Office-Pool-2017/-336100825502638687.html2016-12-29T08:00:00Z2016-12-29T08:00:00Z<p>1) In 2017, President Donald Trump and the Republican-controlled Congress will<br />a. repeal Obamacare entirely.<br />b. squabble among themselves and make only cosmetic changes to Obamacare.<br />c. retain the core of Obamacare because President Trump will have a change of heart.<br />d. repeal Obamacare and replace it with a combined soft free market and soft socialist version.<br /><br /> 2) At the end of 2017<br />a. more American troops will be deployed around the world than are today.<br />b. the United States will be directly involved in a land war in Syria.<br />c. the United States will renounce its membership in NATO.<br />d. all American combat troops will be back home in the United States.<br /><br /> 3) In 2017, President Trump will<br />a. issue more executive orders than President Barack Obama did in eight years.<br />b. direct the IRS to lower the top tax rate to 30 percent.<br />c. appoint New Jersey Gov. Chris Christie to the President's Council on Physical Fitness, Sports and Nutrition.<br />d. be very, very presidential.<br /><br /> 4) In 2017, the Supreme Court will<br />a. reverse Roe v. Wade, thereby handing off the abortion controversy to the states.<br />b. find that the right to carry arms outside the home is protected by the Second Amendment.<br />c. invalidate the congressional repeal of Obamacare.<br />d. have its oral arguments televised.<br /><br /> 5) In 2017, President Trump and Russian President Vladimir Putin will<br />a. race to see who can hack the other more often.<br />b. proclaim their personal and eternal friendship to each other.<br />c. agree to produce a shirtless 2018 calendar together.<br />d. meet once in Washington and once in Moscow and once at Mar-a-Lago.<br /><br /> 6) In 2017, WikiLeaks will release<br />a. secret tapes of the meeting in Trump Tower between Trump and Kanye West.<br />b. Hillary Clinton's favorite yoga positions.<br />c. proof that Bill Clinton is a crook.<br />d. emails showing where President Obama was born.<br /><br /> 7) In 2017, President Trump will<br />a. wage a hostile takeover of NBC.<br />b. fire Lorne Michaels and hire the entire "Saturday Night Live" cast to work for the Trump Organization.<br />c. pick more fights than a fourth-grade schoolyard bully.<br />d. start building the wall.<br /><br /> 8) In 2017, Gov. Christie will<br />a. attempt professional wrestling for his next career.<br />b. try a cable TV gig and hate it because it is too much work.<br />c. become a roadie for Bruce Springsteen's next tour.<br />d. become the general manager of the George Washington Bridge.<br /><br /> 9) In 2017, Sen. Ted Cruz will<br />a. cause another government shutdown.<br />b. announce that he will challenge President Trump in 2020.<br />c. be appointed to the Supreme Court.<br />d. face a very serious challenge by a popular and wealthy Republican congressman from Texas.<br /><br /> 10) In 2017, President Trump will begin his "Get to Know Me" tour by<br />a. listening to Hillary Clinton stump speeches.<br />b. sitting through a dinner with Mitt Romney and Mitch McConnell arguing about Federal Reserve policy.<br />c. giving a lecture at Princeton University about how bad a president Woodrow Wilson was.<br />d. hosting "Saturday Night Live."<br /><br /> 11) In 2017, the news media will<br />a. embrace fake news 24/7 by establishing formal fake news outlets.<br />b. make billions covering the Trump administration.<br />c. be ostracized by President Trump.<br />d. largely be very frustrated as President Trump bypasses and ignores them.<br /><br /> 12) In 2017, former President Obama will<br />a. start a health insurance company.<br />b. become the president of the University of Chicago.<br />c. show up everywhere.<br />d. be shunned by fellow Democrats.<br /><br /> 13) In 2017, the World Series will be won by<br />a. the New York Yankees, after A-Rod rejoins the team.<br />b. the Boston Red Sox.<br />c. the Los Angeles Dodgers.<br />d. the San Francisco Giants, after Nancy Pelosi and her superrich husband buy the team.<br /><br /> 14) In 2017, the Super Bowl will be won by<br />a. the Dallas Cowboys.<br />b. the New York Giants, after Eli Manning throws a 99-yard Hail Mary that Odell Beckham Jr. catches with his feet.<br />c. the New England Patriots, after another cheating scandal.<br />d. the Detroit Lions.<br /><br /> 15) In 2017, global warming will be<br />a. embraced by President Trump.<br />b. exposed as a hoax.<br />c. largely forgotten.<br />d. the subject of another encyclical by Pope Francis.<br /><br /> 16) One year from today<br />a. Pope Francis will be voluntarily retired and living as a simple parish priest in a slum in Buenos Aires.<br />b. divorced and remarried Catholics will lawfully be able to receive the Holy Eucharist.<br />c. Roman Catholic cardinals will have deposed Pope Francis for heresy.<br />d. Antonin Scalia will be on his way to formal sainthood.<br /><br /> 17) One year from today<br />a. the United States will have imposed a 50 percent tariff on all goods made in China.<br />b. the Federal Reserve will be retaining artificially low interest rates.<br />c. more Americans will keep their cash in shoe boxes than in banks.<br />d. bank bankruptcies will be happening once a week.<br /><br /> 18) One year from today<br />a. we will all know how wealthy President Trump is -- or isn't.<br />b. Al Gore will have announced that he will be running for president in 2020.<br />c. the Islamic State group will be history.<br />d. the current mayor of New York City and the current governor of New York state will be cellmates in a federal prison.<br /><br /> 19) One year from today<br />a. Hillary and Bill Clinton will have been indicted by a federal grand jury for operating a criminal enterprise.<br />b. Roger Clemens will be in the Baseball Hall of Fame.<br />c. the Trump family will have established Mar-a-Lago as the official White House.<br />d. more people will be on Obamacare than were in 2016.<br /><br /> 20) In the long run<br />a. everything the government has it has stolen.<br />b. everything the government says is a lie.<br />c. that government is best which governs least.<br />d. all of the above are true.<br /><br /> My choices are 1b, 2a, 3d, 4d, 5d, 6c, 7d, 8b, 9d, 10d, 11d, 12d, 13c, 14a, 15a, 16a, 17b, 18c, 19d and 20d.<br /> Happy new year.</p>Judge Andrew P. Napolltano2016-12-29T08:00:00ZAmerica at ChristmasJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/America-at-Christmas/-85335345745496164.html2016-12-22T08:00:00Z2016-12-22T08:00:00Z<p>What if Christmas is a core value of belief in a personal God who lived among us and His freely given promise of eternal salvation that no believer should reject or apologize for? What if Christmas is the rebirth of Christ in the hearts of all believers? What if Christmas is the potential rebirth of Christ in every heart that will have Him, whether a believer or not?<br /><br /> What if Jesus Christ was born about 2,000 years ago in Bethlehem? What if He is true God and true man? <br /><br />What if this is a mystery and a miracle? What if this came about as part of God's plan for the salvation of all people? What if Jesus was sent into the world to atone for our sins by offering Himself as a sacrifice? What if He was sinless? What if His life was the most critical turning point in human history? What if the reason we live is that He died?<br /><br /> What if after He died, He rose from the dead? What if He was murdered by the government because it feared a revolt if it did not murder Him? What if the government thought He was crazy when He said He is a king but His kingdom is not of this world? What if He was not crazy but divine? What if when He said that He could forgive sins, He was referring to Himself as God?<br /><br /> What if He is one of the three parts of a triune God? What if this is an inexplicable mystery? What if there is no power without mystery? What if the power He possessed, He exercised only for the good? What if He truly gave sight to the blind, hearing to the deaf, musculature to the lame, hope to the disillusioned, courage to the weak and even life to the dead?<br /><br /> What if He freely did these things but sought no acclamation for them? What if after each of these miracles, He disappeared into the temple precincts or walked well past the crowd, lest the crowd hail him as a temporal or secular leader? What if there was in that towering personality a deep thread of shyness? What if He was shy about His Godness? What if He was shy about His goodness? What if He loved saving us? What if He was joyful but did not want us to see His joy?<br /><br /> What if He knew all along how profoundly untimely and utterly painful the end of His life on earth would be but He neither feared nor avoided it? What if His greatest display of love was self-restraint on the Cross?<br /><br /> What if most of the world that He came to save has rejected Him? What if He still loves those who have rejected Him? What if He still offers them salvation? What if His offer is real and forever?<br /><br /> What if many folks today have rejected the true God for government-as-god? What if the government-as-god has set itself up as providing for all secular needs in return for fidelity to it? What if this seductive offer has been accepted by millions in America?<br /><br /> What if the acceptance of this seductive offer of government-as-god has ruined individual initiative, destroyed personal work ethic, fostered cancerous laziness, enhanced deep poverty and impelled thoughtless obedience to government in those who have accepted it? What if the defiance inherent in the belief of government-as-god chills the exercise of personal freedoms for fear of the loss of the government's munificence? What if government charity is really munificence with money it has taken from those who work and earn it? What if it's then given to those who don't? What if it is impossible to be truly charitable with someone else's money?<br /><br /> What if Jesus came to set us free from the yoke of government oppression and the chains of personal sin?<br /><br /> What if freedom is our birthright, given to us by the true God, not by the government-as-god? What if the true God made us in His own image and likeness? What if the most similar likeness between us mortals and the true God is freedom? What if just as God is perfectly free, so are we perfectly free? What if we have failed to preserve freedom and have permitted governments to take it from us? What if we are not full people without full freedom?<br /><br /> What if the world was full of darkness before He came into it? What if there is darkness still today but yet much light? What if we recognize that He is the Light of the World? What if Christmas is the birthday of the Son of God and the Son of Mary? What if we recognize the presence of the Son of God and the Son of Mary in our hearts and among us? What if the God-as-baby whose birthday we celebrate is the Savior of the World? What if we don't mask this but live it?<br /><br /> What if we say with our hearts and mean with our words -- Merry Christmas?</p>Judge Andrew P. Napolltano2016-12-22T08:00:00ZDid the Russians Hack Hillary?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Did-the-Russians-Hack-Hillary/84751083294435271.html2016-12-15T08:00:00Z2016-12-15T08:00:00Z<p>Earlier this week, leaders of the Democratic National Committee and former officials of Hillary Clinton's presidential campaign made the startling allegation that the Russian government hacked into Clinton's colleagues' email accounts to tilt the presidential election toward Donald Trump. They even pointed to statements made by CIA officials backing their allegations.<br /><br /> President-elect Trump has characterized these claims as "ridiculous" and just an "excuse" to justify the Clinton defeat, saying they're also intended to undermine the legitimacy of his election. He pointed to FBI conclusions that the CIA is wrong. Who's right?<br /><br /> Here is the back story.<br /><br /> The American intelligence community rarely speaks with one voice. The members of its 17 publicly known intelligence agencies -- God only knows the number of secret agencies -- have the same biases, prejudices, jealousies, intellectual shortcomings and ideological underpinnings as the public at large.<br /><br /> The raw data these agencies examine is the same. Today America's spies rarely do their own spying; rather, they rely on the work done by the National Security Agency. We know that from the Edward Snowden revelations. We also know from Snowden that the NSA can monitor and identify all digital communications within the United States, coming into the United States and leaving the United States.<br /><br />Hence, it would be foolhardy and wasteful to duplicate that work. There is quite simply no fiber-optic cable anywhere in the country transmitting digital data to which the NSA does not have full-time and unfettered access.<br /><br /> I have often argued that this is profoundly unconstitutional because the Fourth Amendment requires a judicially issued search warrant specifically describing the place to be searched or the thing to be seized before the government may lawfully invade privacy, and these warrants must be based on probable cause of criminal behavior on the part of the person whose privacy the government seeks to invade.<br /><br /> Instead of these probable cause-based, judicially issued search warrants, the government obtains what the Fourth Amendment was written to prohibit -- general warrants. General warrants are not based on evidence of probable cause of criminal behavior; rather, they are based on government "need." This is an unconstitutional and absurd standard because the government will always claim that what it wants, it needs.<br /><br /> General warrants do not specifically describe the place to be searched or the thing to be seized; rather, they authorize the bearer to search where he wishes and seize whatever he finds. This is the mindset of the NSA -- search everyone, all the time, everywhere -- whose data forms the basis for analysis by the other agencies in the intelligence community.<br /><br /> In the case at hand, the CIA and the FBI looked at the same NSA-generated raw data and came to opposite conclusions. Needless to say, I have not seen this data, but I have spoken to those who have, and they are of the view that though there is evidence of leaking, there is no evidence whatsoever of hacking.<br /><br /> Leaking is the theft of private data and its revelation to those not entitled or intended to see it. Hacking is remotely accessing an operational system and altering its contents -- for example, removing money from a bank account or contact information from an address book or vote totals from a candidate's tally. When Trump characterized the CIA claim that the Russians hacked the DNC and Clinton campaign emails intending to affect the outcome of the election as ridiculous, this is what he meant: There is no evidence of anyone's altering the contents of operational systems, but there is evidence -- plenty of it -- of leaking.<br /><br /> If hackers wanted to affect the outcome of the election, they would have needed to alter the operational systems of those who register voters and count votes, not those who seek votes.<br /><br /> During the final five weeks of the presidential campaign, WikiLeaks released tens of thousands of DNC and Clinton campaign emails to the public. WikiLeaks denies that its source was the Russian government, yet for the purposes of the DNC and Clinton campaign claims, that is irrelevant because whoever accessed these emails did not alter the operational systems of any of the targets; the accessor just exposed what was found.<br /><br /> We do not know what data the president-elect examined. Yet in six weeks, he will be the chief intelligence officer of the U.S., and he'll be able to assimilate data as he wishes and reveal what he wants. He should be given the benefit of the doubt because constitutionally, the intelligence community works for him -- not for Congress or the American people.<br /><br /> Who did the leaking to WikiLeaks? Who had an incentive to defeat Clinton? Whose agents' safety and lives did she jeopardize when she was extremely careless -- as the FBI stated -- with many state secrets, including the identity and whereabouts of U.S. intelligence agents and resources?<br /><br /> The answer is obvious: It was the same intelligence community that cannot agree on the meaning of the raw data it has analyzed.<br /><br /> Someone leaked the Democrats' and the Clinton campaign's private work, and the government has a duty to find the person or entity that did so, even if it was one of the government's own. Though the truthful revelation of private facts may have altered some voters' attitudes, there is no evidence that it altered ballot totals. The law guarantees fair elections, not perfect ones.<br /><br /> Did the Russians hack Hillary Clinton? No. No one did. But some American intelligence agents helped WikiLeaks to expose much dirty laundry.</p>Judge Andrew P. Napolltano2016-12-15T08:00:00ZAre Sanctuary Cities Legal?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Are-Sanctuary-Cities-Legal/-538188607976488040.html2016-12-08T08:00:00Z2016-12-08T08:00:00Z<p>Last week, President-elect Donald Trump re-emphasized the approach he will take in enforcing the nation's immigration laws, which is much different from the manner of enforcement utilized by President Barack Obama. The latter pointedly declined to deport the 5 million undocumented immigrants in the United States who are the parents of children born here -- children who, by virtue of birth, are American citizens. <br /><br />Trump has made known his intention to deport all undocumented people, irrespective of family relationships, starting with those who have committed crimes.<br /><br /> In response to Trump's stated intentions, many cities -- including New York, Chicago, Los Angeles and San Francisco -- have offered sanctuary to those whose presence has been jeopardized by the president-elect's plan. Can they do this?<br /><br /> Here is the back story.<br /><br /> Under the Constitution, the president is the chief federal law enforcement officer in the land. Though the president's job is to enforce all federal laws, as a practical matter, the federal government lacks the resources to do that. As well, the president is vested with what is known as prosecutorial discretion. That enables him to place priority on the enforcement of certain federal laws and put the enforcement of others on the back burner.<br /><br /> Over time -- and with more than 4,000 criminal laws in the United States Code -- Congress and the courts have simply deferred to the president and permitted him to enforce what he wants and not enforce what he doesn't want. Until now.<br /><br /> Earlier this year, two federal courts enjoined President Obama -- and the Supreme Court, in a tie vote, declined to interfere with those injunctions -- from establishing a formal program whereby undocumented people who are the parents of natural-born citizens may <em>lawfully</em> remain here. It is one thing, the courts ruled, for the president to prioritize federal law enforcement; it is quite another for him to attempt to rewrite the laws and put them at odds with what Congress has written. It is one thing for the president, for humanitarian reasons or because of a lack of resources, to look the other way in the face of unenforced federal law. It is another for him to claim that by doing so, he may constitutionally <em>change</em> federal law.<br /><br /> Trump brilliantly seized upon this -- and the electorate's general below-the-radar-screen disenchantment with it -- during his successful presidential campaign by promising to deport all 13 million undocumented immigrants currently in the United States, though he later reduced that promise so as to cover only the 2 million among them who have been convicted in the United States of violating state or federal laws.<br /><br /> Enter the sanctuary cities. These are places where there are large immigrant populations, among which many are undocumented, yet where there is apparently not a little public sentiment and local governmental support for sheltering the undocumented from federal reach. Trump has argued that these cities are required to comply with federal law by actively assisting the feds -- or at least not aggressively resisting them.<br /><br /> Thus the question: Are state and local governments required to help the feds enforce federal law? In a word: No.<br /><br /> The term "sanctuary cities" is not a legal term, but it has been applied by those in government and the media to describe municipalities that offer expanded social services to the undocumented and decline to help the feds find them -- including the case of Chicago's offering undocumented immigrants money for legal fees to resist federal deportation. As unwise as these expenditures may be by cities that are essentially bankrupt and rely on federal largesse in order to remain in the black, they are not unlawful. <br /><br />Cities and towns are free to expand the availability of social services however they please, taking into account the local political climate.<br /><br /> Enter the Supreme Court. It has required the states -- and thus the municipalities in them -- to make social services available to everyone resident within them, irrespective of citizenry or lawful or unlawful immigration status. This is so because the constitutional command to the states of equal protection applies to all persons, not just to citizens. So the states and municipalities may not deny basic social services to anyone based on nationality or immigration status.<br /><br /> The high court has also prohibited the federal government from "commandeering" the states by forcing them to work for the feds at their own expense by actively enforcing federal law. As Ronald Reagan reminded us in his first inaugural address, the states formed the federal government, not the other way around. They did so by ceding 16 discrete powers to the federal government and retaining to themselves all powers not ceded.<br /><br /> If this constitutional truism were not recognized or enforced by the courts, the federal government could effectively eradicate the sovereignty of the states or even bankrupt them by forcing them to spend their tax dollars enforcing federal law or paying for federal programs.<br /><br /> Thus the Trump dilemma. He must follow the Constitution, or the courts will enjoin him as they have his predecessor. He cannot use a stick to bend the governments of sanctuary cities to his will, but he can use a carrot. He can ask Congress for legislative grants of funds to cities conditioned upon their compliance with certain federal immigration laws.<br /><br /> All of this is part of our constitutional republic. By dividing powers between the feds and the states -- and by separating federal powers among the president, Congress and the courts -- our system intentionally makes the exercise of governmental power cumbersome by diffusing it. And since government is essentially the negation of freedom, the diffusion of governmental powers helps to maximize personal liberty.</p>Judge Andrew P. Napolltano2016-12-08T08:00:00ZIs Flag Burning Protected Speech?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Is-Flag-Burning-Protected-Speech/988706246684724997.html2016-12-01T08:00:00Z2016-12-01T08:00:00Z<p>"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion." -- U.S. Supreme Court Justice Robert H. Jackson<br /><br /> Is flag burning protected speech? This old issue returned front and center earlier this week after President-Elect Donald Trump tweeted that he found it so reprehensible, it should be criminal. He even suggested a punishment -- loss of citizenship or one year in jail. Is the president-elect correct? Can the government punish acts that accompany the expression of opinions because the government, or the public generally, hates or fears the opinions?<br /><br /> Here is the backstory.<br /><br /> Last weekend, in a series of continued emotional responses to the election of Donald Trump as president of the United States, and prodded by the death of Fidel Castro -- the long-time, brutal, profoundly anti-American dictator of Cuba -- students on a few American college campuses publicly burned American flags.<br /><br /> These acts regenerated the generation-old debate about the lawfulness of this practice, with the president-elect decidedly on the side of those who condemn it.<br /><br /> For the sake of this analysis, like the U.S. Supreme Court, which has addressed this twice in the past 17 years, I am addressing whether you can burn your own American flag. The short answer is: Yes. You can burn your flag and I can burn mine, so long as public safety is not impaired by the fires. But you cannot burn my flag against my will, nor can you burn a flag owned by the government.<br /><br /> Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the Court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations -- the same statutes permitted other public fires -- but rather as prophylactics intended to coerce reverence for the American flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags.<br /><br /> That is where the former statutes ran into trouble. Had they banned all public fires in given locations, for public safety sake, they probably would have withstood a constitutional challenge. But since these statutes were intended to suppress the ideas manifested by the public flag burning, by making the public expression of those ideas criminal, the statutes ran afoul of the First Amendment. <br /><br /> The First Amendment, which prohibits Congress from enacting laws infringing upon the freedom of speech, has consistently been interpreted in the modern era so as to insulate the public manifestation of political ideas from any government interference, whether the manifestation is by word or deed or both. This protection applies even to ideas that are hateful, offensive, unorthodox and outright un-American. Not a few judges and constitutional scholars have argued that the First Amendment was written for the very purpose of protecting the expression of hateful ideas, as loveable or popular ideas need no protection.<br /><br /> The Amendment was also written for two additional purposes. One was, as Justice Jackson wrote as quoted above, to keep the government out of the business of passing judgment on ideas and deciding what we may read, speak about or otherwise express in public. The corollary to this is that individuals should decide for themselves what ideas to embrace or reject, free from government interference. <br /><br /> In the colonial era, the Founding Fathers had endured a British system of law enforcement that punished ideas that the King thought dangerous. As much as we revere the Declaration of Independence for its elevation of personal liberty over governmental orthodoxy, we are free today to reject those ideas. The Declaration and its values were surely rejected by King George III, who would have hanged its author, Thomas Jefferson, and its signers had they lost the American Revolutionary War. Thank God they won.<br /><br /> Justice Jackson also warned that a government strong enough to suppress ideas that it hates or fears was powerful enough to suppress debate that inconveniences it, and that suppression would destroy the purposes of the First Amendment. The Jacksonian warning is directly related to the Amendment's remaining understood purpose -- to encourage and protect open, wide, robust debate about any aspect of government. <br /><br /> All these values were addressed by the Supreme Court in 1989 and again in 1990 when it laid to rest the flag burning controversies by invalidating all statutes aimed at suppressing opinions.<br /><br /> Even though he personally condemned flag burning, the late Justice Antonin Scalia joined the majority in both cases and actively defended both decisions. At a public forum sponsored by Brooklyn Law School in 2015, I asked him how he would re-write the flag burning laws, if he could do so. He jumped at the opportunity to say that if he were the king, flag burners would go to jail. Yet, he hastened to remind his audience that he was not the king, that in America we don't have a king, that there is no political orthodoxy here, and that the Constitution, which is the supreme law of the land, leaves freedom of expression to individual choices, not government mandates.<br /><br /> The American flag is revered because it is a universally recognizable symbol of the human sacrifice of some for the human freedom of many. Justice Scalia recognized that flag burning is deeply offensive to many people -- this writer among them -- yet he, like Justice Jackson before him, knew that banning it dilutes the very freedoms that make the flag worth revering.</p>Judge Andrew P. Napolltano2016-12-01T08:00:00ZWhat if the Government Is Not Worth Thanking?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-if-the-Government-Is-Not-Worth-Thanking/483459262627284480.html2016-11-24T08:00:00Z2016-11-24T08:00:00Z<p>What if on Thanksgiving Day there is more to be fearful about than there is to be thankful for? What if our political season from hell is not over but merely transformed? What if the election season through which we all just suffered is a portent of things to come?<br /><br /> What if the election was decided not on issues but on emotions? What if most people who voted for president chose the candidate they hated less? What if people talked more about videotapes, emails, private behavior and public deception than they did about issues that arise under the Constitution? What if the videotapes and the emails aroused feelings of disgust that motivated millions of voters to make choices? What if those emotional choices led them to Donald Trump over Hillary Clinton?<br /><br /> What if, on the issues that arise under the Constitution, Clinton and Trump have a common belief at their core -- that government should expand to address whatever needs the politicians who run it can identify?<br /><br /> What if neither Clinton nor Trump expressed any mistrust of government? What if, instead, they showed a willingness to embrace it? What if there was little or no talk during the campaign of personal liberty in a free society? What if there was little or no talk during the campaign about how the federal government should stay within the confines of the Constitution? What if there was no talk at all by either candidate during the campaign of the Constitution itself and the values that underlie it and its unambiguous recognition of natural rights?<br /><br /> What if the public injection of the FBI into the political process during the height of the presidential campaign was without precedent or legal justification? What if it was expressly prohibited by long-standing federal practice? What if the Department of Justice was determined to exonerate Clinton no matter what evidence of criminal activity on her part was discovered by the FBI?<br /><br /> What if the FBI nonsense about Clinton emails on Anthony Weiner's laptop was just that -- nonsense intended to ensure a Clinton electoral defeat in return for her legal exoneration? What if that is a trade-off that the FBI has no business offering and no lawful right to make?<br /><br /> What if the whole purpose of the Constitution was to establish the federal government and, at the same time, to limit it? What if the Constitution affirmatively states that the powers the states do not delegate away to the federal government are retained by them? What if that view is alien to President-elect Trump? What if he believes that the federal government can right any wrong, regulate any behavior and tax any event, no matter what the Constitution says?<br /><br /> What if candidate Trump called Obamacare the worst political experiment and assault on health care in American history? What if the core of Obamacare is the individual mandate (which forces all Americans to have health insurance), the pre-existing conditions mandate (which forces insurance carriers to insure the uninsurable, against all free market principles) and the child coverage mandate (which forces insurance carriers to allow for the insuring of the children of insured parents until the children reach age 26)?<br /><br /> What if those three mandates have contributed to the increased cost of health insurance and the decreased availability of the services of medical professionals? What if President-elect Trump now supports those three mandates, against which he railed aggressively and vociferously when he was a candidate?<br /><br /> What if he supports President Barack Obama's claimed right to use drones to kill Americans who have not been charged or convicted of any crime when they are in foreign countries? What if Trump believes he can legally torture Americans, not as punishment for the commission of a crime but to extract information from them? What if he believes he can kill the innocent spouses and children of those foreigners who are harming American interests? What if torture for any purpose and knowingly targeting innocents for death are war crimes and the president is not immune from being prosecuted for them? What if Trump, like Obama before him, believes he can lock people up without charges or a trial or access to the courts?<br /><br /> What if on Thanksgiving, instead of <em>thanking</em>, we engage in <em>thinking</em> -- about human freedom, limited government and government fidelity to the Constitution that created it? What if, while being thankful for life and liberty, we think about ways to preserve them? What if we recognize that when our government breaks its own laws, it assaults the fabric of our republic? What if we are thankful for the recognition of that?<br /><br /> What if on Thanksgiving we re-evaluate the relationship of the individual to the state? What if we begin by demanding that the government work for us and not the other way around? What if instead of just accepting the new government, we try to limit it?<br /><br /> What if we advance the idea that the individual has an immortal soul and the government is a temporary organization based on a monopoly of force? What if we can cause the government to recognize that because our souls are immortal, there are vast areas of human behavior in which we do not need a government permission slip in order to make personal choices? What if we call these choices in these areas natural rights?<br /><br /> What if the best government is the one that taxes, spends and regulates the least? What if the best government recognizes our natural rights? What if the best government leaves us alone? What if that would be something to be thankful for?</p>Judge Andrew P. Napolltano2016-11-24T08:00:00ZThe Federal Bureau of Political InvestigationJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Federal-Bureau-of-Political-Investigation/-152135527639522241.html2016-11-17T08:00:00Z2016-11-17T08:00:00Z<p>When Hillary Clinton delivered a campaign post-mortem to her major supporters in a telephone conference call late last week, she blamed her loss in the presidential election on FBI Director James Comey. She should have blamed the loss on herself. Her refusal to safeguard state secrets while she was secretary of state and her failure to grasp the nationwide resentment toward government by the forgotten folks in the middle class were far likelier the cause of her defeat than was Comey.<br /><br /> Yet it is obvious that law enforcement-based decisions in the past four months were made with an eye on Election Day, and the officials who made them evaded the rule of law.<br /><br /> Here is the back story.<br /><br /> The statutory obligation of the FBI is to gather evidence to aid in the prosecution or prevention of federal crimes or breaches of national security. The process of complying with this obligation necessarily involves making some legal judgments about the relevance, probity and even lawfulness of the gathered evidence. <br /><br />These judgments are sometimes made on the streets in an emergency and sometimes made after consultation and consensus. But the whole purpose of this evidence-gathering and decision-making is to present a package to the Department of Justice, for which the FBI works, for its determination about whether or not to seek a prosecution.<br /><br /> In cases in which subpoenas are needed, the FBI must work in tandem with the DOJ because subpoenas in criminal cases can be issued only by grand juries and only DOJ lawyers can ask grand juries to issue them. Usually, the FBI and the DOJ work together to present what they have to a grand jury in order to build a case for indictment or to induce a grand jury to issue subpoenas and help them gather more evidence.<br /><br /> Federal judges become involved when search warrants or arrest warrants are needed. These are often emergent situations, as the evidence to be seized or the person to be arrested might be gone if not pursued in short order. They require the presentation of evidence to a judge quickly and in secret. It is the judge's role to decide whether the DOJ/FBI team has met the constitutional threshold of probable cause.<br /><br /> Probable cause is met when the prosecutorial team shows the judge that the evidence the team seeks from the execution of the warrant more likely than not will implicate someone in criminal behavior.<br /><br /> Having issued many search and arrest warrants myself, I know that judges need to be curious and skeptical. After all, only one side is appearing before the judge, and the whole appearance is often quick, unorthodox and in secret. A healthy curiosity and skepticism will cause a prudent jurist to ask whether the grand jury really needs what the search warrant seeks. If the reply is that there is no grand jury, most judges will terminate the application and conclude that it is a fishing expedition -- or going "sideways," as law enforcement says -- not a serious criminal investigation worthy of judicial involvement.<br /><br /> All of this is commanded by law to be kept secret so as to preserve evidence, avoid tipping off a potential defendant capable of flight and preserve the reputation of a person not indicted.<br /><br /> That is at least the way these things are supposed to work. Yet none of this happened in the recently reopened and re-terminated investigation of the misuse of emails containing state secrets by Clinton.<br /><br /> In that investigation, the DOJ did not present evidence to a grand jury. Thus, it did not obtain any subpoenas. And it did not seek any search warrants. It cut deals left and right, promising not to prosecute those from whom it sought problematic evidence. After accumulating a mountain of evidence of Clinton's guilt, the FBI did not present it to the DOJ.<br /><br /> Rather, Director Comey held a news conference on July 5, at which he declared that he and his colleagues in the FBI -- not the DOJ -- had concluded that "no reasonable prosecutor" would take the case; so Clinton would not be prosecuted. He then proceeded to outline in detail the gathered evidence <em>against</em> Clinton.<br /><br /> He endured a firestorm of criticism for his public presentation of the gravity of the evidence in the case and his unilateral determination of no prosecution. The firestorm was generated largely by his own FBI agents who had become convinced of Clinton's guilt of the failure to safeguard state secrets (espionage), as well as their collective belief that someone somewhere had told Comey what to do.<br /><br /> Then, just 11 days before the 2016 presidential election, Comey saw a chance to redeem himself with his critics. He unlawfully announced the unexpected discovery of a treasure-trove of 650,000 emails that he and his team had not then examined but that they thought might affect the decision not to prosecute. This caused a second firestorm, in which this writer and others accused Comey of profound violations of federal law, not the least of which was an assault on Clinton's right to due process.<br /><br /> Knowing this announcement -- not the resumption of the investigation but the announcement of it -- was unlawful, Attorney General Loretta Lynch did nothing to prevent it.<br /><br /> Clinton began to sink in the polls. Her Republican opponent, Donald Trump, now the president-elect, began to gloat and celebrate. Then, two days before the election, Comey announced that the FBI had reviewed all 650,000 recently discovered emails in a week and concluded that none of them affected the decision not to prosecute Clinton. Shortly thereafter, a DOJ official announced that the email investigation was closed -- for a second time.<br /><br /> What have we here?<br /><br /> We have the gross mismanagement of the nation's premier law enforcement agency. We have a DOJ uninterested in the truth and willing to shield a target of a criminal investigation for political reasons. We have the improper and unlawful revelation of matters the law quite properly commands be kept secret.<br /><br /> We have the dangerous injection of the FBI into elective politics, which can do ruinous harm to the rule of law.<br /><br /> And we had a candidate who should blame only herself for the whole controversy.</p>Judge Andrew P. Napolltano2016-11-17T08:00:00ZThe Forgotten ManJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Forgotten-Man/-334040048077746108.html2016-11-10T08:00:00Z2016-11-10T08:00:00Z<p>The forgotten man decided the presidential election. Donald Trump persuaded the forgotten man to repose his anger and frustration and power into Trump's hands. Who is the forgotten man? What does he want from government? Why did he vote for Trump?<br /><br /> When the tide began to turn against Hillary Clinton on Tuesday night, I planned to write this column about the unwarranted and unlawful injection of the FBI into the political process. At the time, I was seated with the Fox News number crunchers and generally was exposed to trends and vote totals -- and the number crunchers' lucid explanation of them -- long before they were revealed on-air. I am more an ideas guy than a numbers guy.<br /><br /> On Tuesday night, the numbers were so overwhelming it was clear that the FBI had nothing to do with the outcome of the presidential election. The numbers on Tuesday told a tale that needs to be related. What the FBI did and failed to do assaulted the rule of law, but that is for another column.<br /><br /> Whatever the impression Trump may have given you -- a carnival barker, a hero, a jerk, a courageous leader -- he brilliantly tapped into a deep vein of millions of American men and women who believe they have been forgotten by the government they pay for. These good people have been alienated by the elites who dominate American government and culture and civic life.<br /><br /> On Tuesday night, they found a home.<br /><br /> The forgotten man believes that the Obama administration doesn't care about him. The forgotten man knows that the government put into place regulations of economic activity that put him out of work or into a lower-paying job. These forgotten men and women resent the Obama administration's telling them they must have health insurance or they will be taxed for it and then so incompetently manipulating the marketplace as to cause the cost of that insurance -- often an unwanted product -- to skyrocket.<br /><br /> These good folks cringed when their family doctor told them that he could no longer afford to treat them because the feds had overregulated the practice of medicine. They simply couldn't believe that their own government would make the practice of medicine so expensive that doctors in droves could not afford to stay in business. And they were outraged when their doctors told them the feds could see their medical records and dictate their medical treatment.<br /><br /> The forgotten man has profound resentment for a government that is telling him how to live. The forgotten man's union dues have shot up. His union leaders use his dues to support political candidates he doesn't know or like. Yet he has usually voted for the Democrats -- out of a traditional belief that the Democrats would think of him and his needs when framing federal legislation. They haven't.<br /><br /> The forgotten man speaks his mind but isn't drawn to lofty arguments about the freedom of speech. The forgotten man wants the government to work but couldn't tell you which aspects of its behavior are unconstitutional. The forgotten man wants elected officials who don't and won't forget him. The forgotten man hopes he never sees a judge in a courtroom, but if he does, he wants to be judged by someone who understands him.<br /><br /> The forgotten man wants sexual freedom and privacy, but not babies being ripped from the womb for convenience. The forgotten man doesn't want war but loathes military defeat even more. The forgotten man wants inexpensive goods but will pay more if they are made here by people like him. The forgotten man doesn't want the government to take so much money from those who work hard that they lose their incentive to work or close up their businesses and kill jobs. The forgotten man wants everyone to be able to keep the lion's share of what he earns. The forgotten man forgives but doesn't forget.<br /><br /> Trump got all that. Trump tapped into all that as no presidential candidate had since Ronald Reagan in 1980.<br /><br /> The forgotten man viewed Clinton as having no interest in him. The forgotten man believed that Clinton would work for special interests and not for him. The forgotten man saw that what Trump grasped, Clinton overlooked; what Trump understood, Clinton ignored; and what Trump turned into votes, Clinton took for granted.<br /><br /> I doubt that the forgotten man saw what I did recently. At the Al Smith dinner in New York City last month -- a 1,500-person black-tie fundraiser for the Archdiocese of New York at which Trump's speech was mediocre and Clinton's was stellar -- I tried to shake the hands of both of them but ran into a Secret Service roadblock around the head table. Trump waved to me with a twinkle in his eye. When I saw Clinton, I saw a lonely face without joy. On Wednesday morning, it dawned on me that she was doomed and she knew it.<br /><br /> The forgotten man knew it, as well.</p>Judge Andrew P. Napolltano2016-11-10T08:00:00ZJ. Edgar ComeyJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/J.-Edgar-Comey/162778394205072214.html2016-11-03T07:00:00Z2016-11-03T07:00:00Z<p>I had intended to use this final column before the presidential election to explain at length why I cannot vote for either Hillary Clinton or Donald Trump and plan to vote for Gary Johnson for president. In a nutshell, big government is our biggest problem. It thrives on more debt, more taxes, more regulations, more war, a secretive deep state and less personal freedom. Both Clinton and Trump would grow the government. Only Johnson would shrink it.<br /><br /> One of the most dangerous tendencies of big government is the generation of a police state -- wherein laws, rules and procedures are primarily written and can often be bent to aid law enforcement when it is encroaching on our personal freedoms. We saw a terrifying example of that last week when FBI Director James Comey behaved as if he were his most infamous predecessor, J. Edgar Hoover.<br /><br /> Here is the back story.<br /><br /> Late last week, in an effort to redeem himself from the consequences of having ignored a mountain of evidence of guilt against former Secretary of State Hillary Clinton last summer, Comey told Congress in a cryptic letter that the FBI would resume investigating her emails based upon the belief that more of them may be located in the laptop of disgraced former Rep. Anthony Weiner. Weiner is the alleged sexual predator who remains the estranged husband of Huma Abedin, one of Clinton's closest aides. Abedin backed up all her emails onto the laptop that she and her husband shared.<br /><br /> At the time he sent his Friday letter, Comey had not yet seen the contents of the Weiner laptop because the search warrant authorizing FBI agents to access its contents was not signed until Sunday. If he saw something incriminating before he wrote his letter, he saw it unlawfully; yet his duty was to bring what he saw to the Department of Justice, for which he works, not to hint about it publicly to Congress.<br /><br /> Comey's progress report to Congress is prohibited by the internal regulations of the DOJ and the FBI -- and by the canons of legal ethics that regulate lawyers. Comey had no obligation to send the letter at any time; moreover, sending it last week was a direct violation of DOJ and FBI rules that prohibit all public announcements about candidates for public office within 60 days of Election Day.<br /><br /> Comey told FBI staffers early this week that he sent the letter because he felt duty-bound to members of a congressional committee to whom he had given a promise that he would keep them informed of the status of the email investigation. That was a troublesome promise because its compliance violated other duties imposed upon Comey. Worse than making a promise and not keeping it is making a promise that should not be kept.<br /><br /> The genesis of all this was Comey's unprecedented news conference on July 5, at which he announced that no charges would be filed against Clinton because no prosecutor would take the case. That was not an announcement for him to make. The FBI's job is to gather facts and present them to the DOJ, not to make legal evaluations. He made his announcement when he did to head off the behavior of some of his agents who were seeking Clinton's medical records, unlawfully, from the National Security Agency to ascertain the gravity of her head injury -- an injury she posited during her FBI interrogation as the reason for her professed memory loss.<br /><br /> I have argued that Comey's July 5 decision was dead wrong; there is a mountain of evidence with which to indict and convict Clinton on espionage charges. Yet it should have been presented to a grand jury -- it was not -- rather than at a news conference. The July 5 announcement was bizarre in that it not only exonerated Clinton but also described the quantity and quality of the evidence against her. This insulted the agents who worked on the case and produced the lowest collective FBI morale since Watergate. If Comey sent his Friday letter to address the problems he caused by his July 5 announcement, he did the wrong thing for the wrong reasons.<br /><br /> But perhaps the gravest of Comey's violations is that of the constitutional guarantee of due process. The essence of due process is notice and fairness. How exquisitely unfair of Comey to say, in effect, "We have something that warrants investigation of you, yet we don't know its significance, so we can't say what it is." This is reminiscent of Franz Kafka's "The Trial," in which the lead character is being pursued for a year on unnamed charges, against which he cannot defend himself.<br /><br /> In his play "A Man for All Seasons," Robert Bolt shows Sir Thomas More arguing with William Roper, a colleague, who suggests that government lawbreaking can be justified for the greater good, particularly if the target is the devil (which Trump has called Clinton). More demolishes that argument in a few now iconic lines: "And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down, and you're just the man to do it, d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."<br /><br /> To my friends who have rejoiced in James Comey's letter, please take warning that, as More accurately predicted, the tables can be turned. If there is any moral lesson in all this, it is that the history of human freedom consists of paying careful attention to constitutional guarantees and legal protections, no matter the reputation of the accused.</p>Judge Andrew P. Napolltano2016-11-03T07:00:00ZWhat Happened to the FBI?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-Happened-to-the-FBI/865281623469668192.html2016-10-27T07:00:00Z2016-10-27T07:00:00Z<p>When FBI Director James Comey announced on July 5 that the Department of Justice would not seek the indictment of Hillary Clinton for failure to safeguard state secrets related to her email use while she was secretary of state, he both jumped the gun and set in motion a series of events that surely he did not intend. Was his hand forced by the behavior of FBI agents who wouldn't take no for an answer? Did he let the FBI become a political tool?<br /><br /> Here is the back story.<br /><br /> The FBI began investigating the Clinton email scandal in the spring of 2015, when The New York Times revealed Clinton's use of a private email address for her official governmental work and the fact that she did not preserve the emails on State Department servers, contrary to federal law. After an initial collection of evidence and a round of interviews, agents and senior managers gathered in the summer of 2015 to discuss how to proceed. It was obvious to all that a prima-facie case could be made for espionage, theft of government property and obstruction of justice charges. The consensus was to proceed with a formal criminal investigation.<br /><br /> Six months later, the senior FBI agent in charge of that investigation resigned from the case and retired from the FBI because he felt the case was going "sideways"; that's law enforcement jargon for "nowhere by design." John Giacalone had been the chief of the New York City, Philadelphia and Washington, D.C., field offices of the FBI and, at the time of his "sideways" comment, was the chief of the FBI National Security Branch.<br /><br /> The reason for the "sideways" comment must have been Giacalone's realization that DOJ and FBI senior management had decided that the investigation would not work in tandem with a federal grand jury. That is nearly fatal to any government criminal case. In criminal cases, the FBI and the DOJ cannot issue subpoenas for testimony or for tangible things; only grand juries can.<br /><br /> Giacalone knew that without a grand jury, the FBI would be toothless, as it would have no subpoena power. He also knew that without a grand jury, the FBI would have a hard time persuading any federal judge to issue search warrants. A judge would perceive the need for search warrants to be not acute in such a case because to a judge, the absence of a grand jury can only mean a case is "sideways" and not a serious investigation.<br /><br /> As the investigation dragged on in secret and Donald Trump simultaneously began to rise in the Republican presidential primaries, it became more apparent to Giacalone's successors that the goal of the FBI was to exonerate Clinton, not determine whether there was enough evidence to indict her. In late spring of this year, agents began interviewing the Clinton inner circle.<br /><br /> When Clinton herself was interviewed on July 2 -- for only four hours, during which the interviewers seemed to some in the bureau to lack aggression, passion and determination -- some FBI agents privately came to the same conclusion as their former boss: The case was going sideways.<br /><br /> A few determined agents were frustrated by Clinton's professed lack of memory during her interview and her oblique reference to a recent head injury she had suffered as the probable cause of that. They sought to obtain her medical records to verify the gravity of her injury and to determine whether she had been truthful with them. They prepared the paperwork to obtain the records, only to have their request denied by Director Comey himself on July 4.<br /><br /> Then some agents did the unthinkable; they reached out to colleagues in the intelligence community and asked them to obtain Clinton's medical records so they could show them to Comey. We know that the National Security Agency can access anything that is stored digitally, including medical records. These communications took place late on July 4.<br /><br /> When Comey learned of these efforts, he headed them off the next morning with his now infamous news conference, in which he announced that Clinton would not be indicted because the FBI had determined that her behavior, though extremely careless, was not reckless, which is the legal standard in espionage cases. He then proceeded to recount the evidence against her. He did this, no doubt, to head off the agents who had sought the Clinton medical records, whom he suspected would leak evidence against her.<br /><br /> Three months later -- and just weeks before Clinton will probably be elected president -- we have learned that President Barack Obama regularly communicated with Clinton via her personal email servers about matters that the White House considered classified. That means that he lied when he told CBS News that he learned of the Clinton servers when the rest of us did.<br /><br /> We also learned this week that Andrew McCabe, Giacalone's successor as head of the FBI Washington field office and presently the No. 3 person in the FBI, is married to a woman to whom the Clinton money machine in Virginia funneled about $675,000 in lawful campaign funds for a failed 2015 run for the Virginia Senate. Comey apparently saw no conflict or appearance of impropriety in having the person in charge of the Clinton investigation in such an ethically challenged space.<br /><br /> Why did this case go sideways?<br /><br /> Did President Obama fear being a defense witness at Hillary Clinton's criminal trial? Did he so fear being succeeded in office by Donald Trump that he ordered the FBI to exonerate Clinton, the rule of law be damned? Did the FBI lose its reputation for fidelity to law, bravery under stress and integrity at all times?<br /><br /> This is not your grandfather's FBI -- or your father's. It is the Obama FBI.</p>Judge Andrew P. Napolltano2016-10-27T07:00:00ZWhat if Liberty Is Attached to Humanity?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-if-Liberty-Is-Attached-to-Humanity/-918793437694003514.html2016-10-20T07:00:00Z2016-10-20T07:00:00Z<p>What if the Declaration of Independence states that the purpose of government is to protect our natural rights? What if natural rights are the freedoms we enjoy without neighbors or strangers or government interfering? What if those freedoms are listed in part in the Bill of Rights? What if the government is supposed to keep its hands off those freedoms because they are ours, we have not surrendered them and we have hired the government to protect them?<br /><br /> What if the reason some of our rights are listed in the Bill of Rights was the fear the colonists had after the American Revolution that the new government here might become as destructive of freedom as the British king and Parliament -- whose government they had just kicked out -- were before the Revolution? What if it is impossible to list completely the freedoms that all people enjoy by reason of our humanity? What if the Framers -- who wrote the Constitution and the Bill of Rights -- understood that?<br /><br /> What if, in order to address the impossibility of listing all rights, the Framers ratified the Ninth Amendment?<br /><br /> What if the Ninth Amendment declares that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other rights retained by the people? What if this amendment was the Framers' way of recognizing the inherent attachment of our personal liberties to our individual humanity?<br /><br /> What if the government is supposed to protect those liberties -- the ones that are enumerated in the Bill of Rights and the others that are too numerous to enumerate and are covered by the Ninth Amendment?<br /><br /> What if the government -- no matter which party controls the White House or Congress -- always claims that it is protecting personal freedoms? What if this is just an empty boast? What if there is a government within the government that never changes, never shrinks, answers only to itself, hates and fears personal freedoms, and is largely unrecognized by the Constitution?<br /><br /> What if that government, because of its secrecy, is largely unaccountable to the voters? What if it resides in the Federal Reserve, the military, federal law enforcement and intelligence establishments, and an enormous federal bureaucracy that regulates and spends in secret to a greater extent every year, no matter which party is in control?<br /><br /> What if the secret government commands the loyalty of the elected government by sharing secrets with it?<br /><br /> What if the law requires those shared secrets to be kept secret? What if the elected government knows what the secret government is up to but cannot legally reveal it? What if members of Congress know why Hillary Clinton was not indicted but they learned it in secret and so cannot legally reveal it? What if members of Congress know the extent of the Donald Trump financial shell game but they learned that in secret and so cannot reveal it?<br /><br /> What if some personal courage has broken this mold? What if Edward Snowden revealed massive secret government spying on all Americans after the government had denied it? What if Sen. Dianne Feinstein revealed horrific torture by the federal government after the government had denied it? What if the elected government knew about the spying and the torture but was legally prevented from revealing it? What if Hillary Clinton was largely right when she said politicians have a public persona and a private persona? What if President Barack Obama has demonstrated his two sides by killing people in secret, with his undeclared wars, and denying it in public?<br /><br /> What if the interest rate you pay on your home mortgage or car loan is not established by the free market -- or even reached by bankers looking for your business -- but is fixed in private by the secret government?<br /><br /> What if the secret government has decided that it prefers Clinton to succeed President Obama and so its agents in law enforcement will overlook all evidence of Clinton's lawbreaking in order to bring that about? <br /><br />What if the secret government has given Trump an enormous pass on his financial behavior, a pass unavailable to the average voter, and it needs to keep that secret?<br /><br /> What if government has no interest in personal freedom, except perhaps as a catchy phrase around which to rally support? What if government nurtures having foreign adversaries -- real and imagined -- so that it has an excuse, in repelling or resisting those enemies, to exercise unlawful powers?<br /><br /> What if the presidential election this year has become a beauty contest -- devoid of intellectual substance, without serious debate over the limited duties of government in a constitutional democracy, rolling in the gutter and largely motivated by hate and fear? What if both Clinton and Trump recognize the paradox that government is essentially the negation of personal liberty? What if whoever wins will largely use it for that purpose?<br /><br /> What if liberty really is attached to humanity? What if all rational people yearn for personal freedom? What if the government -- in order to stay in power -- has detached liberty from humanity and made it a gift of the state instead of a gift of God? What if government knows that by restricting and then expanding liberty, it can command loyalty?<br /><br /> What if there is a sense of hopelessness in the land? What if this hopelessness is bred by a government that kills, lies, steals, conceals and denies? What if that hopelessness is furthered by a rational fear that things will only get worse, no matter who wins the presidential election? What do we do about it?</p>Judge Andrew P. Napolltano2016-10-20T07:00:00ZCan the Media Reveal Stolen Truths?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Can-the-Media-Reveal-Stolen-Truths/133381574063045366.html2016-10-13T07:00:00Z2016-10-13T07:00:00Z<p>It seems that at every turn during this crazy presidential election campaign -- with its deeply flawed principal candidates (whom do you hate less?) -- someone's personal or professional computer records are being hacked. First it was Hillary Clinton's emails that she had failed to surrender to the State Department. <br /><br />Then it was a portion of Donald Trump's 1995 tax returns, showing a $916 million loss he claimed during boom times. Then it was those Clinton emails again, this time showing her unacted-upon doubts about two of our Middle Eastern allies' involvement in 9/11 and her revelation of some secrets about the killing of Osama bin Laden.<br /><br /> The reason we know about these leaks is the common thread among them -- the willingness of the media to publish what was apparently stolen. Hence the question: Can the government hold the press liable -- criminally or civilly -- for the publication of known stolen materials that the public wants to know about? In a word: No.<br /><br /> Here is the back story.<br /><br /> When Daniel Ellsberg, an outside contractor working in the Pentagon, stole a secret study of U.S. military involvement in Vietnam in 1971, which revealed that President Lyndon Johnson had lied repeatedly to the public about what his military advisers had told him, the Department of Justice secured an injunction from U.S. District Judge Murray Gurfein, sitting in Manhattan, barring The New York Times from publishing what Ellsberg had turned over to Times reporters. Such an injunction, known as a "prior restraint," is exceedingly rare in American legal history.<br /><br /> This is so largely because of the sweeping language of the First Amendment -- "Congress shall make no law ... abridging the freedom of speech, or of the press" -- as well as the values that underlie this language. Those values are the government's legal obligation to be accountable to the public and the benefits to freedom of open, wide, robust debate about the government -- debate that is informed by truthful knowledge of what the government has been doing.<br /><br /> Those underlying values spring from the Framers' recognition of the natural right to speak freely. The freedom of speech and of the press had been assaulted by the king during the Colonial era, and the Framers wrote a clear, direct prohibition of such assaults in the initial amendment of the new Constitution.<br /><br /> Notwithstanding the First Amendment, Judge Gurfein accepted the government's argument and found that palpable, grave and immediate danger would come to national security if the Times were permitted to publish what Ellsberg had delivered.<br /><br /> The Times appealed Judge Gurfein's injunction, and that appeal made its way to the Supreme Court. In a case that has come to be known as the Pentagon Papers case, the high court ruled that when the media obtains truthful documents that are of material interest to the public, the media is free to publish those documents, as well as commentary about them, without fear of criminal or civil liability.<br /><br /> The government had argued to the Supreme Court -- seriously -- that "'no law' does not mean 'no law'" when national security is at stake. Fortunately for human freedom and for the concept that the Constitution is the supreme law of the land and means what it says, the court rejected that argument. It also rejected the government's suggested methodology.<br /><br /> The government argued that because Congress and the president had agreed to void a constitutional mandate -- the First Amendment's "no law" language -- in deference to national security, the judiciary should follow. That methodology would have rejected 180 years of constitutional jurisprudence that taught that the whole purpose of an independent judiciary is to say what the Constitution and the laws mean, notwithstanding what Congress and the president want. Were that not so, the courts would be rubber stamps.<br /><br /> Moreover, the high court ruled, it matters not how the documents came into the possession of the media. The thief can always be prosecuted, as Ellsberg was, but not the media to which the thief delivers what he has stolen. In Ellsberg's case, the charges against him were eventually dismissed because of FBI misconduct in pursuit of him -- misconduct that infamously involved breaking in to his psychiatrist's office looking for dirt on him.<br /><br /> Since that case, the federal courts have uniformly followed the Pentagon Papers rule. Hence, much to the chagrin of the Obama administration, the media was free to publish Edward Snowden's revelations about the ubiquitous and unconstitutional nature of government spying on Americans by the National Security Agency. The same is true for Trump's tax returns and Clinton's emails.<br /><br /> Are these matters material to the public interest?<br /><br /> Of course they are. In a free society -- one in which we do not need a government permission slip to exercise our natural rights -- all people enjoy a right to know if the government is spying on us in violation of the constitutionally protected and natural right to privacy. We also have a right to know about the financial shenanigans or uprightness and the honesty or dishonesty of those who seek the highest office in the land. That is particularly so in the 2016 campaign, in which Trump has argued that his business acumen makes him uniquely qualified to be president and Clinton has offered that her experiences as secretary of state would bring a unique asset to the Oval Office.<br /><br /> Efforts to silence the press or to punish it when it publishes inconvenient truths about the government or those who seek to lead it are not new, and the vigilance of the courts has been unabated. Thomas Jefferson -- himself the victim of painful press publications -- argued that in a free society, he'd prefer newspapers without a government to a government without newspapers. Would Clinton or Trump say that today?</p>Judge Andrew P. Napolltano2016-10-13T07:00:00ZWhat if Trump and Clinton Have the Same Core Beliefs?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-if-Trump-and-Clinton-Have-the-Same-Core-Beliefs/300829591713484812.html2016-10-06T07:00:00Z2016-10-06T07:00:00Z<p>What if the most remarkable aspect of this presidential election is not how much the two principal candidates disagree with each other but how much they actually agree?<br /><br /> What if they are both statists? What if they both believe that the government's first duty is to take care of itself? What if they both believe in the primacy of the state over the individual? What if, in clashes between the state and individuals, they both would use the power of the state to trample the rights of individuals?<br /><br /> What if the first priority of both is not to decrease the size and scope of government but to expand it? What if they both believe that the federal government may lawfully and constitutionally right any wrong, tax any behavior and regulate any event? What if they both want to add a few thousand new employees to the federal payroll, give them badges and guns and black shirts, and engage them as federal police to insulate the federal government further from the people and the states?<br /><br /> What if, when James Madison wrote the Constitution, he took great pains to reserve powers to the people and the states that were not delegated away to the feds? What if both Hillary Clinton and Donald Trump couldn't care less about that?<br /><br /> What if both of them reject the Madisonian principle that the federal government is limited in scope to the 16 unique and discrete powers given to it by the Constitution? What if they even reject the corollary to that principle, which is that the balance of governmental powers -- those not delegated by the Constitution to the feds -- resides in the states? What if they both reject the Madisonian principle that in areas of governmental power retained by the states, the states should be free from federal interference?<br /><br /> What if this principle of a limited federal government depends upon the principle of natural rights -- areas of human behavior and choice stemming from our humanity and immune from government interference? What if the Declaration of Independence and the Ninth Amendment to the Constitution define our natural rights as inalienable? What if both Trump and Clinton reject that? What if she believes in killing innocents by drone and he believes in torturing innocents at Gitmo?<br /><br /> What if both Clinton and Trump accept the principle that the federal government can address any problem for which there is a national political consensus? What if this idea -- championed by Woodrow Wilson, who hated the values of Madison -- is the opposite of what the Framers wrote and intended?<br /><br /> What if this Wilsonian principle has unleashed the federal government to regulate nearly all aspects of personal behavior and to enhance immeasurably the powers of an unelected, unseen and unaccountable federal bureaucracy, which never seems to shrink or change?<br /><br /> What if both Trump and Clinton embrace the idea that federal power, rather than being limited by the Constitution, is limited only by what the feds can't get away with politically? What if this concept was expressly rejected by the Framers but both Trump and Clinton don't care? What if neither of them believes that a limited federal government must reside and remain within the confines of the Constitution?<br /><br /> What if Trump wants the police to be able to stop anyone they wish based on just a hunch that the person is armed or possessing contraband? What if the Fourth Amendment -- which requires the police to have individual articulable suspicion, not just hunches and not judgments based on race, in order to stop a person -- was expressly written to prohibit just what Trump wants? What if Trump doesn't care because he prefers votes to constitutional fidelity?<br /><br /> What if Clinton wants free higher education for all in America who go to community colleges, all of which are government-owned? What if the Constitution does not delegate regulatory or spending authority over education to the feds? What if there is no such thing as "free" college? What if someone somewhere will need to pay for it?<br /><br /> What if all federal revenue is already committed to wealth transfers (Medicare, Medicaid, Social Security, welfare), interest payments on the federal government's debt (now north of $400 billion annually) and the Pentagon (which spends crazily so its budget won't be reduced in the future)? What if the Clinton "free" college deal would mean the feds would need to tax more or borrow more or both?<br /><br /> What if more taxation means less money for the productive aspects of society? What if more borrowing produces a decrease in the value of what you already own? What if a dollar spent by the feds produces far less wealth -- jobs, income, productivity -- than a dollar invested in the private sector? What if Clinton doesn't care because she prefers votes to economic productivity?<br /><br /> What if both Trump and Clinton believe they can use the federal government to bribe the poor with handouts, the middle class with tax breaks, the rich with bailouts and write-offs, and the states with block grants? What if Trump himself has benefited enormously from federal write-offs available only to the very rich?<br /><br /> What if neither talks about personal liberty in a free society? What if they both talk about the government's duty to keep us safe? What if neither talks about the government's first duty, which is to keep us free? What if neither believes that the government works for us? What if they both really believe that we work for the government?<br /><br /> What if Mark Twain was right when he said that the reason we get to vote is it doesn't make much difference?</p>Judge Andrew P. Napolltano2016-10-06T07:00:00ZShe Clobbered Him (Don't Shoot the Messenger)Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/She-Clobbered-Him-Dont-Shoot-the-Messenger/643124424353345669.html2016-09-29T07:00:00Z2016-09-29T07:00:00Z<p>In this weekly column and in my on-air work at Fox News, I have characterized former Secretary of State Hillary Clinton as a crook and as the "Queen of Deception." I have argued that there is enough credible evidence in the public domain to indict, prosecute and convict her of espionage, perjury, misleading Congress, public corruption, providing material assistance to terrorist organizations and obstruction of justice.<br /><br /> I can point to five times when she lied under oath. I know of FBI agents who believe that their hands were tied by the Obama administration in the criminal investigation of her. And I know of American intelligence agents who firmly believe that Americans died because Clinton failed to keep state secrets secure.<br /><br /> She sent emails containing state secrets to a former aide whom she knew lacked any security clearance and whose emails were hacked by hostile foreign governments, and she left classified documents in a bedroom in a foreign embassy where personnel without clearances had access to them.<br /><br /> She refused to use government-secured email devices because she wanted to keep her behavior hidden from the public and from the president. Some of that behavior had to do with using the power of the government to enrich her family's foundation. I have argued that there is strong, credible evidence to demonstrate that she exercised her official behavior as secretary of state in accordance with the financial needs of her family's foundation. She refused to see some foreign dignitaries until they gave money to the foundation.<br /><br /> She had her close personal aide, Huma Abedin, employed by the foundation while she was employed by the State Department, such that folks who dealt with Abedin knew that she would ask them for money for the foundation as Clinton's official gatekeeper; and they'd need to make those payments in return for favorable treatment from the secretary of state.<br /><br /> She even permitted Russian President Vladimir Putin to gain control of a Utah uranium mine in return for the payment by an intermediary of $145 million to her family's foundation.<br /><br /> Some of the behavior Clinton hid involved her waging an illegal and disastrous war in Libya, in which she used the American intelligence community rather than the U.S. military so as to keep Congress largely in the dark. She conspired with a dozen members of Congress and with President Barack Obama to fight the secret war to topple Libyan strongman and American ally Col. Moammar Gadhafi.<br /><br /> She used her lawful authority as secretary of state to authorize exemptions to the U.N. embargo of arms to Libya by American and foreign arms dealers. She permitted the sale of arms to groups in Libya that were masquerading as anti-Gadhafi militias but -- according to the CIA -- were actually terrorist organizations.<br /><br /> She rejected the advice of the CIA and thereby provided material aid to terrorist organizations -- a felony under U.S. law. The result of her secret war was the destruction of all order and culture in Libya, the institution of mob rule and the assassination of the American ambassador.<br /><br /> Yet none of the above was articulated by Donald Trump in his debate with Clinton earlier this week.<br /><br /> Trump utterly failed to capitalize on her greatest vulnerabilities -- the widespread and largely well-grounded belief that she is untrustworthy and her well-documented record as a failure as secretary of state. I know one of his debate coaches very well. I suspect that the coach gave him superb ideas and one-line zingers, none of which he used. I also suspect that the coach's advice went in one of Trump's ears and out the other.<br /><br /> Presidential debates are not won on points and counterpoints. They are won on general impressions. The general impression from Monday's highly anticipated debate is that Clinton brilliantly controlled the ball and Trump came utterly unprepared. She succeeded in arresting her fall in the polls and reassuring her Democratic base. He failed to give independents and wavering Republicans a good reason to back him.<br /><br /> She clobbered him.<br /><br /> But both candidates' performances deeply disappointed me. I confess to a moral preference for personal liberty in our supposedly free society. Did you hear the word "freedom" or any of its variants or the Constitution mentioned by either debater? I did not.<br /><br /> Neither talked about natural rights -- personal liberties coming from our humanity and untouchable by the government. Trump argued for letting the police stop you on a whim. Clinton argued for massive increases in wealth transfers.<br /><br /> Neither understands the economy. Both want the government to force employers to pay higher wages, to impose higher taxes on the most productive in our society, to impose tariffs on goods we import and to increase our $19.5 trillion national debt. Aren't those behaviors just what got us into our present precarious economic straits, where all federal tax revenue is now consumed by wealth transfers, the Pentagon and interest on the government debt, with the government being run on borrowed money and borrowed time?<br /><br /> Neither mentioned the primacy of the individual over the state, and neither spoke about the guarantees of liberty in the Bill of Rights. Both believe in a government that can right any wrong, regulate any behavior and tax any event.<br /><br /> Who really wants a choice between two proponents of monster government, bigger than it is now? Whatever became of "that government is best which governs least"? Who will protect us from a government that takes more than it gives?</p>Judge Andrew P. Napolltano2016-09-29T07:00:00ZDue Process Is Vital to FreedomJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Due-Process-Is-Vital-to-Freedom/-176580816501681838.html2016-09-22T07:00:00Z2016-09-22T07:00:00Z<p><em>"No person shall ... be deprived of life, liberty, or property, without due process of law..." -- Fifth Amendment to the U.S. Constitution</em> <br /><br /> The clash in American history between liberty and safety is as old as the republic itself. As far back as 1798, notwithstanding the lofty goals and individualistic values of the Declaration of Independence and the Constitution, the same generation -- in some cases the same human beings -- that wrote in the First Amendment that "Congress shall make no law ... abridging the freedom of speech" enacted the Alien and Sedition Acts, which punished speech critical of the government.<br /><br /> Similarly, the Fifth Amendment's guarantee of due process has been ignored by those in government charged with enforcing it when they deal with a criminal defendant whom they perceive the public hates or fears. So it should come as no surprise that no sooner had the suspect in the recent New Jersey and New York City bombings been arrested than public calls came to strip him of his rights, send him to Gitmo and extract information from him. This is more Vladimir Putin than James Madison.<br /><br /> I have often argued that it is in times of fear -- whether generated by outside forces or by the government itself -- when we need to be most vigilant about protecting our liberties. I make this argument because when people are afraid, it is human nature for them to accept curtailment of their liberties -- whether it be speech or travel or privacy or due process -- if they become convinced that the curtailment will keep them safe. But these liberties are natural rights, integral to all rational people and not subject to the government's whim.<br /><br /> I can sacrifice my liberties, and you can sacrifice yours, but I cannot sacrifice yours; neither can a majority in Congress sacrifice yours or mine.<br /><br /> The idea that sacrificing liberty actually enhances safety enjoys widespread acceptance but is erroneous. The Fort Hood massacre, the Boston Marathon killings, the slaughters in San Bernardino and Orlando, and now the bombings in New Jersey and New York all demonstrate that the loss of liberty does not bring about more safety.<br /><br /> The loss of liberty gives folks the false impression that the government is doing something -- anything -- to keep us safe. That impression is a false one because in fact it is making us less safe, since a government intent on monitoring our every move and communication loses sight of the moves and communications of the bad guys. As well, liberty lost is rarely returned. The Patriot Act, which permits federal agents to bypass the courts and issue their own search warrants, has had three sunsets since 2001, only to be re-enacted just prior to the onset of each -- and re-enacted in a more oppressive version, giving the government more power to interfere with liberty, and for a longer period of time each time.<br /><br /> We know from the Edward Snowden revelations and the National Security Agency's own admissions that the NSA has the digital versions -- in real time -- of all telephone calls, text messages and emails made, sent or received in the U.S. So if the right person is under arrest for the bombings last weekend, why didn't the feds catch this radicalized U.S. citizen and longtime New Jersey resident before he set off his homemade bombs? Because the government suffers from, among other ailments, information overload. It is spread too thin. It is more concerned with gathering everything it can about everyone -- "collect it all," one NSA email instructed agents -- than it is with focusing on potential evildoers as the Fourth Amendment requires.<br /><br /> Why do we have constitutional guarantees of liberty?<br /><br /> The Constitution both establishes the federal government and confines it. It presents intentional obstacles in the path of the government. Without those obstacles, we might be safe from domestic harm, but who would keep us safe from the government? Who would want to live here if we had no meaningful, enforceable guarantees of personal liberties? When our liberties are subject to the needs of the police, we will end up in a police state. What does a police state look like? It looks like the Holocaust and communism.<br /><br /> Everyone who works in government has taken an oath to uphold the Constitution. Hence, it is distressing to hear lawmakers calling for the abolition of due process for certain hateful and hurtful defendants. Due process -- fairness from the government, the right to silence, the right to counsel and the right to a jury trial with the full panoply of constitutional requirements and protections -- is vital to our personal liberties and to our free society as we have known it.<br /><br /> If anyone who appears to have been motivated to attack Americans or American values based on some alleged or even proven foreign motivation could be denied the rights guaranteed to him under the Constitution by a government determination before trial, then no one's rights are safe.<br /><br /> The whole purpose of the guarantee of due process is to insulate our liberties from subjective government interference by requiring it in all instances when the government wants life, liberty or property -- hence the clear language of the Fifth Amendment. The star chamber suggested by those who misunderstand the concept of guaranteed rights is reminiscent of what King George III did to the colonists, which was expressly condemned in the Declaration of Independence and which sparked the American Revolution.<br /><br /> Supreme Court Justice Felix Frankfurter once wrote that the history of American freedom is, in no small measure, following fair procedures -- which means enforcing the guarantee of due process. Without due process for those we hate and fear -- even those whose guilt is obvious -- we will all lose our freedoms.</p>Judge Andrew P. Napolltano2016-09-22T07:00:00ZWhat Is the FBI Hiding?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-Is-the-FBI-Hiding/-682925471615638014.html2016-09-15T07:00:00Z2016-09-15T07:00:00Z<p>Earlier this week, Republican leaders in both houses of Congress took the FBI to task for its failure to be transparent. In the House, it was apparently necessary to serve a subpoena on an FBI agent to obtain what members of Congress want to see; and in the Senate, the chairman of the Judiciary Committee accused the FBI itself of lawbreaking.<br /><br /> Here is the back story.<br /><br /> Ever since FBI Director James Comey announced on July 5 he was recommending that the Department of Justice not seek charges against former Secretary of State Hillary Clinton as a result of her failure to safeguard state secrets during her time in office, many in Congress have had a nagging feeling that this was a political, not a legal, decision. The publicly known evidence of Clinton's recklessness and willful failure to safeguard secrets was overwhelming. The evidence of her lying under oath about whether she returned all her work-related emails that she had taken from the State Department was profound and incontrovertible.<br /><br /> And then we learned that people who worked for Clinton were instructed to destroy several of her mobile devices and to remove permanently the stored emails on one of her servers. All this was done after these items had been subpoenaed by two committees of the House of Representatives.<br /><br /> Yet the FBI -- which knew of the post-subpoena destruction of evidence and which acknowledged that Clinton failed to return thousands of her work-related emails as she had been ordered by a federal judge to do, notwithstanding at least three of her assertions to the contrary while under oath -- chose to overlook the evidence of not only espionage but also obstruction of justice, tampering with evidence, perjury and misleading Congress.<br /><br /> As if to defend itself in the face of this most un-FBI-like behavior, the FBI then released to the public selected portions of its work product, which purported to back up its decision to recommend against the prosecution of Clinton. Normally, the FBI gathers evidence and works with federal prosecutors and federal grand juries to build cases against targets in criminal probes, and its recommendations to prosecutors are confidential.<br /><br /> But in Clinton's case, the hierarchy of the Department of Justice removed itself from the chain of command because of the orchestrated impropriety of Attorney General Loretta Lynch and Bill Clinton, who met in private on the attorney general's plane at a time when both Bill and Hillary Clinton were subjects of FBI criminal investigations. That left the FBI to have the final say about prosecution -- or so the FBI and the DOJ would have us all believe.<br /><br /> It is hard to believe that the FBI was free to do its work, and it is probably true that the FBI was restrained by the White House early on. There were numerous aberrations in the investigation. There was no grand jury; no subpoenas were issued; no search warrants were served. Two people claimed to have received immunity, yet the statutory prerequisite for immunity -- giving testimony before a grand or trial jury -- was never present.<br /><br /> Because many members of Congress do not believe that the FBI acted free of political interference, they demanded to see the full FBI files in the case, not just the selected portions of the files that the FBI had released. In the case of the House, the FBI declined to surrender its files, and the agent it sent to testify about them declined to reveal their contents. This led to a dramatic service of a subpoena by the chairman of the House Oversight and Government Reform Committee on that FBI agent while he was testifying -- all captured on live nationally broadcast television.<br /><br /> Now the FBI, which usually serves subpoenas and executes search warrants, is left with the alternative of complying with this unwanted subpoena by producing its entire file or arguing to a federal judge why it should not be compelled to do so.<br /><br /> On the Senate side, matters are even more out of hand. There, in response to a request from the Senate Judiciary Committee, the FBI sent both classified and unclassified materials to the Senate safe room. The Senate safe room is a secure location that is available only to senators and their senior staff, all of whom must surrender their mobile devices and writing materials and swear in writing not to reveal whatever they see while in the room before they are permitted to enter.<br /><br /> According to Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, the FBI violated federal law by commingling classified and unclassified materials in the safe room, thereby making it unlawful for senators to discuss publicly the unclassified material.<br /><br /> Imposing such a burden of silence on U.S. senators about unclassified materials is unlawful and unconstitutional. What does the FBI have to hide? Whence comes the authority of the FBI to bar senators from commenting on unclassified materials?<br /><br /> Who cares about this? Everyone who believes that the government works for us should care because we have a right to know what the government -- here the FBI -- has done in our names. Sen. Grassley has opined that if he could reveal what he has seen in the FBI unclassified records, it would be of profound interest to American voters.<br /><br /> What is going on here? The FBI investigation of Hillary Clinton has not served the rule of law. The rule of law -- a pillar of American constitutional freedom since the end of the Civil War -- mandates that the laws are to be enforced equally. No one is beneath their protection, and no one is above their requirements. To enforce the rule of law, we have hired the FBI.<br /><br /> What do we do when the FBI rejects its basic responsibilities?</p>Judge Andrew P. Napolltano2016-09-15T07:00:00ZHillary Clinton and the FBIJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hillary-Clinton-and-the-FBI/-364811460013493896.html2016-09-08T07:00:00Z2016-09-08T07:00:00Z<p>On Sept. 2, the FBI released a lengthy explanation of its investigation of Hillary Clinton and a summary of the evidence amassed against her. It also released a summary of Clinton's July FBI interrogation.<br /><br /> The interrogation was in some respects standard and in others very troubling. It was standard in that she was confronted with emails she had sent or received and was asked whether she recalled them, and her judgment about them was challenged. The FBI was looking for gross negligence in her behavior about securing state secrets.<br /><br /> The failure to secure state secrets that have been entrusted to one for safekeeping is known as espionage, and espionage is the rare federal crime that does not require prosecutors to prove the defendant's intent. <br /><br />They need only prove the defendant's gross negligence.<br /><br /> At one point during the interrogation, FBI agents attempted to trick her, as the law permits them to do. Before the interrogation began, agents took the hard copy of an innocuous email Clinton had sent to an aide and marked it "secret." Then, at her interrogation, they asked Clinton whether she recognized the email and its contents. She said she did not recognize it, but she questioned the "secret" denomination and pointed out to the agents that nothing remotely secret was in the email.<br /><br /> By examining the contents of the email to see whether it contained state secrets, which it clearly did not, Clinton demonstrated an awareness of the law -- namely, that it is the contents of a document or email that cause it to be protected by federal secrecy statutes, not the denomination put on it by the sender.<br /> This added to the case against her because she later told the FBI that she had never paid attention to whether a document contained state secrets or not. In the strange world of espionage prosecution, this denial of intent is an admission of guilt, as it is profoundly the job of the secretary of state to recognize state secrets and to keep them in their secure government-protected venues, and the grossly negligent failure to do so is criminal.<br /><br /> The FBI notes of the interrogation recount that Clinton professed serious memory lapses 39 times. She also professed ignorance over what "C" means in the margin of a government document. "C" in the margin means "confidential," which is one of the three levels of federal state secrets. The other two levels are "secret" and "top secret." Under federal law, Clinton was required to keep in secure government venues all documents in those three categories. The FBI found that she had failed to do so hundreds of times.<br /><br /> By denying that she had paid attention to notes in margins designating the presence of secrets, by denying that she recognized a secret when she saw one and by denying that the location of planned drone strikes is secret (an obvious secret with which FBI agents confronted her), she succeeded in avoiding incriminating herself.<br /><br /> But by saving herself from indictment, she may have doomed her campaign for president. In this dangerous world, how can a person seeking the presidency be so dumb or ignorant or indifferent or reckless or deceptive about what is a secret and what is not?<br /><br /> The records released last week also reveal that the FBI must have been restrained from the outset from conducting an aggressive investigation. It did not present any evidence to a grand jury. It did not ask a grand jury for any subpoenas, and hence it didn't serve any. It did not ask a judge for any search warrants, and hence it didn't serve any. The data and hardware it gathered in the case were given to it in response to simple requests it made.<br /><br /> I counted five times in the report where the FBI lamented that it did not have what it needed. This is the FBI's own fault. This tepid FBI behavior is novel in modern federal law enforcement. It is inimical to public safety and the rule of law. It is close to misconduct in office by high-ranking FBI officials.<br /><br /> Someone restrained the FBI.<br /><br /> The FBI did not ask Clinton aggressive follow-up questions. Her interrogators just blithely accepted her answers. They failed to present her with documents she had signed that would have contradicted what she was telling them -- particularly, an oath she signed on her first day in office promising to recognize state secrets when she came upon them and to keep them in secure venues. And agents violated Department of Justice policy by not recording her interrogation when her lawyers told them she would not answer questions if her answers were recorded.<br /><br /> Now the FBI has interjected itself into the presidential campaign by releasing these documents. <br /><br />Notwithstanding the mountain of evidence pointing to Clinton's guilt, it is highly improper and grossly unfair to release evidence gathered against a person who will not be prosecuted. Moreover, it is tendentious to release only part of the evidence -- only what agents want the public to see -- rather than the complete file. Yet all this evidence is secret under DOJ regulations. Had any of it been intended for or presented to a grand jury, the release of it would have been criminal.<br /><br /> What happened here? The FBI seriously dropped the ball, and Clinton was more concerned about being indicted than she was about losing the race for the presidency.<br /><br /> It is apparent that some in FBI management blindly followed what they were told to do -- exonerate Hillary Clinton. There is no other explanation for the FBI's failure from the outset to use ordinary law enforcement tools available to it. Yet some in the FBI are not professionally satisfied by this outcome. They know that a strong case for prosecution and for guilt is being ignored for political reasons.<br /><br /> What else do they know?</p>Judge Andrew P. Napolltano2016-09-08T07:00:00ZHillary Clinton Short-Circuited?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hillary-Clinton-Short-Circuited/-218899067109662472.html2016-08-11T07:00:00Z2016-08-11T07:00:00Z<p>When former Secretary of State Hillary Clinton was asked last week if she has misled the American people on the issue of her failure to safeguard state secrets contained in her emails, she told my Fox News colleague, Chris Wallace, that the FBI had exonerated her. When pressed by Wallace, she argued that FBI Director James Comey said that her answers to the American people were truthful.<br /><br /> After Clinton recognized that even her strongest supporters doubted her statement, she attempted to walk it back. In doing so, she repeatedly lied again, but offered as an excuse a bizarre claim that she had "short-circuited" her answer.<br /><br /> Who knows what that means? She claimed that she and Wallace were talking over each other and her answer had been misunderstood and misconstrued. Yet, Clinton said that Comey exonerated her as being "truthful" to the public when in fact he stated that she had been truthful during her three-hour, closed-door, unrecorded interview with the FBI.<br /><br /> Clinton told a group of largely pro-Clinton journalists that she had short-circuited her remarks. Then, she acknowledged that Comey had only referred to whatever she told the FBI as being truthful. Then, she lied again, by insisting that she told the FBI the same things she has told the press and the public since this scandal erupted in March 2015.<br /><br /> But that cannot be so, because she has issued a litany of lies to the press and to the public, which the FBI would have caught. In her so-called clarifying remarks, she again told journalists her oft-stated lie about returning all work-related emails to the State Department. She could not have told that to the FBI because Director Comey revealed in July that the FBI found "thousands" of unreturned work-related emails on her servers, some of which she attempted to destroy.<br /><br /> On the state secrets issue, she has told the public countless times that she never sent or received anything marked classified. She could not have said that to the FBI, because even a novice FBI agent would have recognized such a statement as a trick answer. Nothing is marked "classified." The markings used by the federal government are "confidential" or "secret" or "top secret." When Director Comey announced last month that the FBI was recommending against indictment, he revealed nevertheless that his agents found 110 emails in 52 email threads containing materials that were confidential, secret or top secret.<br /><br /> The agents also found seven email chains on her servers that were select access privilege, or SAP. SAP emails cannot be received, opened or sent without knowing what they are, as a special alphanumeric code, one that changes continually, must be requested and employed in order to do so. SAP is so secret that the FBI agents investigating Clinton lacked access to the code.<br /><br /> Could Clinton have legally received, opened, stored or sent a secret or top secret email without knowing it, as she has claimed? In a word: NO.<br /><br /> That's because, on her first day in office, Clinton swore under oath that she recognized her legal obligation to recognize state secrets and treat them according to law -- that is, to keep them in a secure government venue -- whether they are marked as secrets or not.<br /><br /> This past weekend, we learned how deadly the consequences of Clinton's failure to secure secrets can be.<br /><br /> Last Sunday, Iran executed a scientist who sold Iranian nuclear secrets to the U.S. The secrets were eventually passed on to Secretary of State John Kerry for his use during the negotiations that led to the recent U.S.-Iran nuclear accord. But the sale of the secrets and the U.S.'s payments for them (several million dollars) were consummated under then-Secretary Clinton's watch. The scientist was lured back to Iran, fearing harm to his family. Upon his return, he was arrested, tried and convicted of treason.<br /><br /> One email sent to Clinton, from Richard Morningstar, a former State Department special envoy for Eurasian energy, referred to this scientist as "our friend." The fact that Clinton's aides referenced this spying scientist as "our friend" shows a conscious awareness of their duty to hide and secure state secrets -- his name and what he had done for the U.S. Yet, at the same time, Clinton put these state secrets at risk by having them sent to her via her nonsecure home servers. This "our friend" email was a top-secret email, which Clinton failed to keep secure. It was either one of the 110 that the FBI found on her servers or one of the work-related emails she did surrender.<br /><br /> Could this email have been used as evidence in the treason trial of the now-executed scientist?<br /><br /> That is not an academic question. Most of the intelligence community seriously mistrusts Clinton, as her recklessness has jeopardized their work. Some feared that many of their undercover colleagues were compromised or even killed due to Clinton's emails.<br /><br /> Hillary Rodham Clinton has established a clear and unambiguous record of deception. Her deceptions are not about the time of day or the day of the week; they are about matters material to her former job as Secretary of State and material to national security.<br /><br /> Do you know any rational person who continues to trust her?</p>Judge Andrew P. Napolltano2016-08-11T07:00:00ZLessons From the Deep StateJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Lessons-From-the-Deep-State/-888037546022333683.html2016-08-04T07:00:00Z2016-08-04T07:00:00Z<p>On the eve of the Democratic National Convention, WikiLeaks -- the courageous international organization dedicated to governmental transparency -- exposed hundreds of internal emails circulated among senior staff of the Democratic National Committee during the past 18 months.<br /><br /> At a time when Democratic Party officials were publicly professing neutrality during the party's presidential primaries, the DNC's internal emails showed a pattern of distinct bias toward the candidacy of former Secretary of State Hillary Clinton and a marked prejudice toward the candidacy of Sen. Bernie Sanders. <br /><br />Some of the emails were raw in their tone, and some could fairly be characterized as failing to respect Sanders' Jewish heritage.<br /><br /> The revelation caused a public uproar during the weekend preceding the opening of the Democratic convention in Philadelphia last week, and it caused the DNC to ask its own chairwoman, Rep. Debbie Wasserman Schultz, to resign. When she declined to do so, President Barack Obama personally intervened and implored her to leave. She submitted to the president's wishes, gave up her public role as chair of the convention and eventually resigned as chair of the DNC late last week.<br /><br /> In order to take everyone's eyes off this intrusive and uncomfortable bouncing ball, the leadership of the DNC, in conjunction with officials of the Clinton campaign, blamed the release of the DNC emails on hackers employed by Russian intelligence agents. Many in the media picked up this juicy story and repeated it all last week.<br /><br /> Clinton promptly named Wasserman Schultz as a campaign consultant and complained that the Russians are trying to influence the presidential election. She did not complain about the unfairness manifested in the emails, complete with their religious prejudice; she only complained about Russian President Vladimir Putin's helping Donald Trump.<br /><br /> But the Russians had nothing to do with it.<br /><br /> Last week, William Binney, a 30-year career official at the National Security Agency turned whistleblower, revealed the unthinkable. Binney, who devised the software that the NSA has used to capture the contents of emails and cellphone conversations of all in America but resigned from the NSA because of the unlawful and unconstitutional manner in which the software was used, told a Philadelphia radio audience that the DNC hacking was most likely done by NSA agents.<br /><br /> Why would the NSA hack into DNC computers, and why would the NSA leak what its agents saw?<br /><br /> Here is where the deep state meets the political world. The deep state consists of intelligence, military, law enforcement and administrative agency personnel who aggressively protect their own interests, which transcend elections. Stated differently, many of these folks remain in opaque positions of power, and the governmental departments and agencies for which they work continue to expand, no matter which party wins the White House or controls Congress.<br /><br /> The deep state stays in power by a variety of means, some of which are lawful and not the least of which was visited upon the DNC last week. Binney knows the inside workings of NSA computers because he designed them. He knows how easy it would have been for any of the NSA's 60,000 agents, many of whom have great antipathy toward Clinton, to employ their skills to frustrate her drive toward the presidency.<br /><br /> The intelligence community's antipathy toward Clinton has two general sources. One is her misuse of emails containing state secrets. Among the top-secret emails that the FBI discovered on Clinton's non-secure private servers were some that revealed the names of U.S. intelligence agents operating undercover in the Middle East. Because Clinton emailed secrets to others who the FBI found were hacked by hostile foreign intelligence services and because she used a non-secure mobile email device while inside the territories of hostile governments, her "extremely careless" use of her emails resulted in the termination of the undercover work of those whose cover she caused to be revealed. Many in the intelligence community also suspect that in some cases, U.S. undercover agents lost their lives because Clinton failed to keep their identities secret.<br /><br /> The other source of intelligence community antipathy to Clinton stems from her secret war waged against the late Libyan strongman, Col. Moammar Gadhafi. When she waged that war -- using intelligence, not military, personnel -- with the approval of the president and a dozen members of Congress, she exercised her authority as secretary of state to grant exemptions to a U.N. arms embargo of Libya. She wanted Libyan militias to have heavy-duty, military-grade arms with which to topple the Libyan government.<br /><br /> But the CIA and others warned her that she was arming terrorist groups, which was potentially lethal for some American intelligence personnel and which is a felony under federal law. One of those groups may have used Clinton-authorized, embargo-free weapons to assassinate Christopher Stevens, the U.S. ambassador to Libya, at Benghazi. Clinton disregarded the CIA's advice and didn't worry about anyone's finding out about it because she thought her emails would remain secret.<br /><br /> Binney's conclusion that the NSA and not the Russians hacked the DNC is further supported by official White House silence. Last year, when Chinese intelligence agents hacked U.S. government computers and accessed personnel records of millions of federal government employees, the White House lodged long and loud protests with Beijing. This time, there have been no such protests to the Kremlin.<br /><br /> What does all this tell us?<br /><br /> It tells us that Hillary Clinton continues to be the queen of deception. It tells us that some of those in whose hands we repose our freedom for safekeeping do not wish to see her in the White House because of her demonstrated lawlessness and indifference to their work. And it recalls to our attention the danger and power of the deep state and its willingness to break the laws it has sworn to uphold.</p>Judge Andrew P. Napolltano2016-08-04T07:00:00ZFree Speech and Political ConventionsJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Free-Speech-and-Political-Conventions/-818344484785483375.html2016-07-28T07:00:00Z2016-07-28T07:00:00Z<p>This summer, we have all witnessed the heavy hand of government intervening in the freedom of speech, as the behavior of the Secret Service at both the Republican convention in Cleveland and the Democratic convention in Philadelphia was troubling and unconstitutional.<br /><br /> Though the First Amendment was originally written only to restrain Congress ("Congress shall make no law ... abridging the freedom of speech"), it is now uniformly interpreted to restrict all government in America from abridging the freedom of speech.<br /><br /> The reason this freedom is referred to as "the" freedom of speech is to reflect the belief of the Framers that the right to speak freely is pre-political. Stated differently, the freedom of speech is an integral aspect of our humanity. The government does not grant the freedom of speech; it is prohibited from interfering with it.<br /><br /> This is known as a negative right, in the sense that government is negated from interfering with a personal natural right. A natural right is one whose exercise does not require a government permission slip. Speech is the classic example.<br /><br /> The reasons for this are numerous, and not the least of them are our natural inclinations to think as we wish and to say what we think in pursuit of happiness and personal fulfillment. The practical reasons for this right are the needs of an informed electorate to challenge the government and demand transparency and accountability.<br /><br /> How did this play out during the hot weeks in Cleveland and Philadelphia? Not well.<br /><br /> Though the political parties are private entities with their own rules, they have invited their members and supporters to these quadrennial conventions for the purpose of engaging in public political conversations.<br /><br /> Yet if the Republicans wanted only pro-Trump sentiments to be expressed in the hall in Cleveland and if the Democrats wanted only pro-Clinton sentiments to be expressed in the hall in Philadelphia, since neither entity is the government, both are free to abridge the freedom of speech without legal consequences.<br /><br /> The consequences of such abridgments would presumably be political; those whose speech is silenced and those who oppose silencing public political speech would cast their votes against the silencers.<br /><br /> Yet this summer, the heavy hand of government was involved in silencing speech.<br /><br /> Here is the back story.<br /><br /> Because both Donald Trump and Hillary Clinton are entitled to Secret Service protection by virtue of a federal statute, the Secret Service either offered or demanded that it be the lead law enforcement agency providing general security -- not just to Trump and Clinton but for everyone -- at the conventions. In both cities, local officials went along with this.<br /><br /> The freedom of speech issues arose when the leadership of both conventions got so cozy with the Secret Service that they began using the federal agency as if it were private security, and they did so in such a manner as to preclude judicial intervention in aid of the freedom of speech.<br /><br /> Thus, when the Republican leadership wanted to quell a "Never Trump" boomlet on the convention floor, it had the Secret Service remove all reporters and producers -- including some of my Fox News colleagues -- from the floor. And when the Democratic leadership wanted to silence a pro-Bernie Sanders onslaught on the convention floor, it had the Secret Service confiscate Sanders placards from delegates on the floor.<br /><br /> The government removal of the press by command of the Republicans and the government removal of Sanders placards by command of the Democrats constitute not only an unheard-of commandeering of the government's coercive powers for a private purpose but also the government's abridging the freedom of speech. And all this was done quickly and without notice -- and without an opportunity for redress to the courts.<br /><br /> The first duty of government is to preserve life, liberty and property. It is a strange and dangerous government that stifles freedom for some fleeting private purpose. It is equally strange that a freedom-loving people would tolerate this.<br /><br /> The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate about the policies and the personnel of the government. The prevailing judicial interpretations of these values quite properly keep the government out of the business of assessing the value and propriety of public political speech.<br /><br /> The First Amendment demands that the test for acceptance or rejection of speech in the marketplace of ideas be made by individuals -- uninfluenced, undeterred and unmolested by the government.<br /><br /> When the government stifles free choice in an area such as speech, it is no longer the people's servant. It has become their master. Do you know anyone outside the government who wants that?</p>Judge Andrew P. Napolltano2016-07-28T07:00:00ZWhat if the Fix Was In?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-if-the-Fix-Was-In/205448732998294356.html2016-07-21T07:00:00Z2016-07-21T07:00:00Z<p>What if the folks who run the Department of Political Justice recently were told that the republic would suffer if Hillary Clinton were indicted for espionage because Donald Trump might succeed Barack Obama in the presidency? What if espionage is the failure to safeguard state secrets and the evidence that Clinton failed to safeguard them is unambiguous and overwhelming?<br /><br /> What if President Obama never really liked his former rival whom he appointed as his secretary of state? <br /><br />What if he had no real interest in seeing her succeed him because he and his wife simply could never trust her?<br /><br /> What if, when Clinton suggested to the president that the U.S. wage a secret undeclared war against Libya, the president went along with it as a no-lose proposition? What if he assumed that if her secret war succeeded he'd get the credit and if her secret war failed she would get the blame?<br /><br /> What if the means of fighting the secret war consisted of employing intelligence assets rather than the U.S. military? What if Clinton concocted that idea because the use of the military requires a public reporting to the entire Congress but the use of intelligence assets requires only a secret reporting to a dozen members of Congress?<br /><br /> What if Clinton expanded her war by permitting American and foreign arms dealers to bypass the NATO arms embargo on Libya by selling heavy-duty, military-grade arms directly to militias in Libya? What if this was Clinton's dream scenario -- an apparent civil war in Libya in which the victorious side was secretly armed by the U.S., with democracy brought to the country and Clinton the architect of it all?<br /><br /> What if the CIA warned Clinton that this would backfire? What if the CIA told her that she was arming not pro-Western militias but anti-American terrorist groups? What if she rejected all that advice? What if providing material assistance to terrorist groups is a felony? What if the Department of Political Justice actually obtained an indictment of an American arms dealer for going along with Clinton's schemes?<br /><br /> What if Clinton's secret war in Libya was a disaster? What if she succeeded in toppling the Libyan leader, Col. Moammar Gadhafi, only to have him replaced by feuding warlords who control anti-Western terrorist groups that not only failed to produce democracy but instead produced destruction, chaos, terror, torture and death?<br /><br /> What if Clinton managed her Libyan disaster using a non-secure email system even though she regularly sent and received state secrets? What if she sent many emails containing state secrets about her Libyan war to her friend Sid Blumenthal? What if Blumenthal had been turned down for a State Department job by the president himself?<br /><br /> What if Blumenthal did not have a government security clearance to receive lawfully any state secrets? What if Clinton knew that? What if the FBI found that Blumenthal's emails had been hacked by intelligence services of foreign governments that are hostile to America?<br /><br /> What if there were terrible secrets that Clinton wanted to keep from the public and for that reason she used private servers and non-government-issued mobile devices? What if those terrible secrets involved her enabling the unlawful behavior of her husband and his shoddy, unlawful foundation? What if Mrs. Clinton made decisions as secretary of state that were intended to enrich her husband and herself and she needed to keep emails about those decisions away from the public?<br /><br /> What if the president recognized all this and authorized the FBI to conduct criminal investigations of Mrs. Clinton?<br /><br /> What if, after the ascendancy of Donald Trump in the Republican presidential primary, the president warmed up to his former rival? What if Trump so got under the president's skin that it drove him to embrace Clinton as his chosen successor and as the one Democrat who could prevent a Trump presidency?<br /><br /> What if the president sent word to the Department of Political Justice to exonerate Clinton no matter what evidence was found against her? What if, in response to that political interference, the FBI investigation of her failure to safeguard state secrets and her corruption took irregular turns?<br /><br /> What if FBI management began to intimidate FBI agents who had the goods on her? What if FBI management forced agents to sign highly irregular agreements governing what the agents can tell anyone when it comes to what they learned about Clinton?<br /><br /> What if the Department of Political Justice never subpoenaed anything from Clinton? What if it never convened a grand jury to seek and hear evidence against her? What if the FBI requires a grand jury to subpoena documents and tangible things? What if it is highly irregular for a major FBI criminal investigation to be undertaken without a grand jury?<br /><br /> What if the attorney general was involved in a publicity stunt with Clinton's husband and then used that stunt as an excuse to remove herself and her top aides from making decisions in the case? What if this was a sham, done so as to make it appear that FBI professionals -- rather than someone politically motivated, such as the president or the attorney general -- were calling the shots in the case?<br /><br /> What if Hillary Clinton has engaged in espionage and public corruption and FBI agents know that she has?<br /><br /> What if they have evidence to prove it but they could not present anything to a grand jury because President Obama wants Clinton, and not Donald Trump, to succeed him in office? What if this blatant political interference with a criminal investigation is itself a crime? What if, midstream in this criminal investigation, the fix was put in?<br /><br /> What do we do about it?</p>Judge Andrew P. Napolltano2016-07-21T07:00:00ZHillary Clinton and Personal HonestyJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hillary-Clinton-and-Personal-Honesty/-928998411913269869.html2016-07-14T07:00:00Z2016-07-14T07:00:00Z<p>When FBI Director James Comey publicly revealed his recommendation to the Department of Justice last week that former Secretary of State Hillary Clinton not be prosecuted for espionage, he unleashed a firestorm of criticism from those who believe that Clinton was judged by different standards from those used to judge others when deciding whether to bring a case to a grand jury.<br /><br /> The FBI investigation had a bizarre ending to it. FBI recommendations are never made public as this one was. Attorney General Loretta Lynch had been compromised by her politically disastrous but legally consequential meeting out of the view of the media with Bill Clinton just one week before Comey's announcement. Whatever they discussed, the overwhelming public impression was such that Lynch removed herself and her senior aides from the case, effectively leaving the FBI to have the final say. This is unheard of in the post-Hoover FBI.<br /><br /> The Comey announcement itself gave two reasons for recommending against indictment. One was that "no reasonable prosecutor" would take the case. That is not a judgment the FBI gets paid to make. The FBI's job is to gather, present and evaluate facts and evidence, not predict what prosecutors might do with it. The other stated reason for recommending against indictment was that though Clinton may have been "extremely careless" in handling state secrets, she was not "grossly negligent," which is the standard required by the espionage statute.<br /><br /> Yet Comey also acknowledged that Clinton sent state secrets to nongovernmental colleagues who lacked national security clearances, that those people were hacked by hostile intelligence services and that she used her numerous non-secure mobile devices recklessly while inside the territorial borders of those hostile governments. If all that is somehow extremely careless but not grossly negligent, then many who have done far less than Clinton -- and have been prosecuted and convicted -- were wrongly prosecuted.<br /><br /> Since Comey's announcement last week, several new factors have come to light. One is that the DOJ never presented any evidence to a grand jury. It never sought subpoenas from a grand jury. This is unheard of in major criminal investigations because the FBI alone has no subpoena power and needs a grand jury to issue subpoenas for it.<br /><br /> The absence of a sitting grand jury also makes one wonder about the circumstances under which and the purpose for which the DOJ obtained immunity for Bryan Pagliano, Clinton's internet technology adviser. She paid him $5,000 to migrate her public and her secret State Department email streams from the government's secure servers to her own non-secure servers. Immunity, which is essentially the pre-indictment permanent forgiveness of criminal behavior, cannot be given lightly and can only be given in return for testimony -- usually to a grand jury or a trial jury. Strangely, that was not the case here.<br /><br /> Nevertheless, Clinton's persistent problems with personal honesty have brought her face to face with three more criminal investigations. One is for public corruption. The second is for perjury. And the third is for misleading Congress.<br /><br /> The public corruption investigation has been underway for a few months. The allegations are that she exercised the powers of her office as secretary of state to enrich her husband and herself. The evidence here is ample. There are dozens of documented instances in which foreign governments and individuals received beneficial treatment from her State Department -- usually exemptions from compliance with American laws or regulations -- and then collectively gave hundreds of millions of dollars to the Clinton Foundation at a time when it was not a registered lawful charity.<br /><br /> The second investigation Clinton faces is for perjury. This arises out of a Freedom of Information Act civil lawsuit during which she swore in writing and under oath, citing the phrase "under penalty of perjury," that she surrendered all of her work-related emails to the State Department. When she left the State Department, she effectively took all of her emails with her. Then, when the FOIA cases began, she returned about half of what she had taken, claiming that the other half was personal.<br /><br /> The FBI found that she failed to return thousands of work-related emails, some of which she and her lawyers attempted to destroy and some of which they succeeded in destroying. Who ordered the destruction?<br /><br /> Finally, Clinton will most likely be confronted with charges of misleading Congress. Misleading Congress consists of intentionally creating a false impression in response to material congressional questions. She did this when she denied to the House Select Committee on Benghazi that she had sent or received emails via her home servers that contained state secrets.<br /><br /> The FBI found 110 emails in that category, at least two dozen of which were at the highest level of protection that the government accords its secrets. She also told that same committee that she had surrendered all her work-related emails to the State Department.<br /><br /> Former New York Yankees pitching great Roger Clemens was tried twice (after a trial that ended with a hung jury, he was ultimately acquitted) for misleading Congress when he was forced to speak to a House committee about the contents of his blood and urine as a baseball player. Clinton has misled Congress about her lawful obligations as secretary of state, and she skates free.<br /><br /> Back in the Whitewater days, when the propensity of both Bill and Hillary Clinton to lie routinely and naturally first became apparent to the media and the public, the late, great New York Times columnist William Safire referred to Mrs. Clinton by a moniker that enraged her husband. He became so fearful of the truth and so furious with Safire that he publicly threatened to punch Safire in the nose.<br /><br /> Safire called Hillary Clinton a congenital liar. He was right. That was 20 years ago. Some people never change.</p>Judge Andrew P. Napolltano2016-07-14T07:00:00ZThe Department of Political JusticeJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Department-of-Political-Justice/811414243317428515.html2016-07-07T07:00:00Z2016-07-07T07:00:00Z<p>Is it worth impairing the reputation of the FBI and the Department of Justice to save Hillary Clinton from a deserved criminal prosecution by playing word games?<br /><br /> What has become of the rule of law -- no one is beneath its protections or above its requirements -- when the American public can witness a game of political musical chairs orchestrated by Bill Clinton at an airport in a bizarre ruse to remove the criminal investigation of his wife from those legally responsible for making decisions about it?<br /><br /> How hairsplitting can the FBI be in acknowledging "extreme recklessness" while denying "gross negligence" about the same events, at the same time, and in the same respect?<br /><br /> These are questions that now beg for answers in light of what can only be the politically motivated FBI report delivered earlier this week on the likely criminal behavior of Hillary Clinton.<br /><br /> The espionage statute that criminalizes the knowing or grossly negligent failure to keep state secrets in a secure venue is the rare federal statute that can be violated and upon which a conviction may be based without the need of the government to prove intent.<br /><br /> Thus, in the past two years, the DOJ has prosecuted a young sailor for sending a single selfie to his girlfriend that inadvertently showed a submarine sonar screen in its background. It also prosecuted a Marine lieutenant who sent his military superiors a single email about the presence of al-Qaida operatives dressed as local police in a U.S. encampment in Afghanistan -- but who inadvertently used his Gmail account rather than his secure government account.<br /><br /> And it famously prosecuted Gen. David Petraeus for sharing paper copies of his daily calendar in his guarded home with a military colleague also in the home -- someone who had a secret security clearance herself -- because the calendar inadvertently included secret matters in the pages underneath the calendar.<br /><br /> Yet earlier this week, FBI Director James Comey -- knowing that his bosses in the DOJ would accept his legal conclusions about Clinton's failure to keep state secrets secure, because they had removed themselves from independently judging the FBI's work -- told the public that whereas the inadvertence of the above defendants was sufficient to justify their prosecutions, somehow Clinton's repeated extreme recklessness was not.<br /><br /> It is obvious that a different standard is being applied to Clinton than was applied to Petraeus and the others. It is also now painfully obvious that the game of musical chairs we all witnessed last week when Bill Clinton entered the private jet of Comey's boss -- Attorney General Loretta Lynch -- unannounced and spent 30 private minutes there with her at a time when both he and his wife were targets of FBI criminal probes was a trick to compromise Lynch and remove her and her aides from the DOJ chain of command regarding the decision as to whether to present evidence of crimes against either of the Clintons to a federal grand jury.<br /><br /> Why do we stand for this?<br /><br /> The criminal case against Mrs. Clinton would have been overwhelming. The FBI acknowledged that she sent or received more than 100 emails that contained state secrets via one of her four home servers. None of those servers was secure. Each secret email was secret when received, was secret when sent and is secret today. All were removed from their secure venues by Clinton, who knew what she was doing, instructed subordinates to white out "secret" markings, burned her own calendars, destroyed thousands of her emails and refuses to this day to recognize that she had a duty to preserve such secrets as satellite images of North Korean nuclear facilities, locations of drone strikes in Pakistan and names of American intelligence agents operating in the Middle East under cover.<br /><br /> Why do we stand for this?<br /><br /> Comey has argued that somehow there is such a legal chasm between extreme recklessness and gross negligence that the feds cannot bridge it. That is not an argument for him to make. That is for a jury to decide after a judge instructs the jury about what Comey fails to understand: There is not a dime's worth of difference between these two standards. Extreme recklessness is gross negligence.<br /><br /> Unless, of course, one is willing to pervert the rule of law yet again to insulate a Clinton yet again from the law enforcement machinery that everyone else who fails to secure state secrets should expect.<br /><br /> Why do we stand for this?</p>Judge Andrew P. Napolltano2016-07-07T07:00:00ZIllegal War and Disguised TruthJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Illegal-War-and-Disguised-Truth/-952326080486276397.html2016-06-30T07:00:00Z2016-06-30T07:00:00Z<p>The 800-plus-page report of the House Select Committee on Benghazi was released earlier this week. It slams former Secretary of State Hillary Clinton for her willful indifference to her obligation to repel military-style attacks on American interests and personnel at the U.S. Consulate and a nearby CIA annex in Benghazi, Libya. She particularly failed to save the lives of U.S. Ambassador Christopher Stevens and three of his colleagues, all under her care and control while she was secretary of state.<br /><br /> The report also slams Clinton for her repeated lies about the cause of the attacks. After she told her daughter in an email that the Benghazi consulate had been attacked by an organized terrorist group using heavy military hardware, she told her colleagues at the State Department that the attacks were a spontaneous overreaction by locals to an American-made internet video about the Prophet Muhammad.<br /><br /> After telling that lie, she sent another email, this one to the Egyptian foreign minister, repeating what she had truthfully told her daughter.<br /><br /> The Obama administration then spread the "internet video-inspired" myth by dispatching Susan Rice, the U.S. ambassador to the U.N., to repeat it to five Sunday morning American television talk shows. This was met with profound disbelief in the diplomatic and intelligence communities. Yet, still unwilling to acknowledge the truth publicly, Clinton then retold the myth to the families of the four dead Americans in the presence of their loved ones' bodies as the bodies were being reverently removed from a U.S. transfer plane at Joint Base Andrews.<br /><br /> What does all this say of the character of Clinton? How cold and heartless is she? How can she expect voters to reward her with the presidency when she failed to lift a finger to save Americans and then she repeatedly lied in public about her failures -- while being truthful about them in private?<br /><br /> Yet the committee's report is incomplete and has aroused dissent from some Republican members of the committee. The essence of their dissent is that the unstated and unacknowledged but true mission of the committee was not to reveal facts but to conceal them. There is ample evidence to support their argument that Benghazi was the unintended consequence of Clinton's private war against Libyan strongman Col. Moammar Gadhafi.<br /><br /> Yet the report does not delve into that.<br /><br /> The war against Gadhafi was, of course, never declared by Congress. It was conceived by Clinton, approved by President Barack Obama and agreed to by leadership in both houses of Congress and from both major political parties. It was supposed to be the crown jewel of Clinton's foreign policy stewardship -- ousting the dictator, replacing him with a democracy, putting no American boots on the ground and avoiding American bloodshed.<br /><br /> As is often the case in war, particularly illegal ones and especially secret ones, there were unintended consequences. Here the consequences have been the destruction of the government of an American ally, the imposition of mob-ruled chaos in Libya, the empowerment of terror groups in the Middle East, the deaths of innocent American civilians, the rejection of the rule of law and the obfuscation of the truth.<br /><br /> One of those who signed off on this secret war was the person who appointed the committee and its senior staff with personal loyalists -- former House Speaker John Boehner. Another is a former congressman whose wife personally prospered from all this by serving as the go-between in the delivery of military hardware from Western sources to terror groups on the ground.<br /><br /> The method of those who authorized the secret war was for Clinton to issue waivers -- as the secretary of state may do -- to the U.S., NATO and U.N. embargo of arms sales to Libya. What did this do? Instead of issuing waivers so as to permit arms to be sold to a friendly government, Clinton and her colleagues conspired to get arms into the hands of terrorist organizations masquerading as local militias. The CIA warned her about this, but she was indifferent to the warnings.<br /><br /> Those who signed off on this war and its methodology were arguably conspirators in an effort to provide material support to terrorist organizations by supplying them with military equipment, allegedly to be used to topple the Gadhafi government. That is a felony -- and the beneficial or strategic use of the weapons is not a defense to the charge of providing them to terror groups.<br /><br /> How dangerous and reckless was Clinton? She ignored the CIA's advice and let the weapons spread among deranged madmen and committed killers. Who in the intelligence community would work for her in light of this behavior? Ambassador Stevens and the others were killed by heavy military hardware that Clinton and her colleagues permitted to make its way into the hands of terror groups.<br /><br /> Though Clinton was the creator of the conspiracy and remained at its heart and hoped to ride it triumphantly into the White House -- and though she bears more blame than any other conspirator -- the committee's work fails as a seeker of the whole truth.<br /><br /> The truth is that some of the committee's congressional allies set in motion the awful events that led to the tragedy in Benghazi. The truth is that these people will probably escape accountability for their lawless behavior. The truth is that Congress knows that the president wages secret wars and it does nothing to stop them. The truth is that Hillary Clinton put her own political ambitions above fidelity to the rule of law and properly doing her job.<br /><br /> The truth is that the House Select Committee on Benghazi concealed more truth than it revealed. Yet the government is supposed to work for us. Aren't we entitled to know what the government has done in our names?</p>Judge Andrew P. Napolltano2016-06-30T07:00:00Z'No Fly, No Buy' Means No FreedomJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/No-Fly-No-Buy-Means-No-Freedom/767131345668738974.html2016-06-23T07:00:00Z2016-06-23T07:00:00Z<p>The people in the government who want to control our personal choices are the enemies of freedom. And the enemies of freedom can be very clever and seductive.<br /><br /> Last week, these folks, manifesting their lust to keep us dependent upon the government by rejecting the natural right to self-defense, coined a clever phrase: "No fly, no buy." It sounds rational, yet it rejects core American values.<br /><br /> The phrase was pounded home to average Americans during a one-sided 15-hour televised marathon on the floor of the Senate orchestrated by the gun control crowd. The essence of the argument was that stricter laws regarding gun sales would have prevented the massacre at the Pulse nightclub in Orlando, Florida. In gun control advocates' dream world, the self-loathing Islamic State-inspired killer, willing to take 49 innocent lives, would somehow have been unwilling to violate restrictive gun purchase laws; and his obedience to those laws would have saved lives.<br /><br /> Their argument is naive and absurd. A person willing to commit mass murder is surely willing to break the law to acquire the means to commit the murders. So blinded were these senators in their misguided utterances about self-defense that they forgot about the Constitution.<br /><br /> The legislation they offered would have required that people whose names the feds put on a terror watchlist or a no-fly list (these are often done simultaneously) would not be legally able to purchase a gun.<br /><br /> The senators summarized this idea dozens of times as "no fly, no buy."<br /><br /> Though this phrase, which was quickly picked up by many of my colleagues in the media, has an easy and simplistic ring to it, it reveals a troubling ideology that profoundly rejects core American values.<br /><br /> When Thomas Jefferson wrote in the Declaration of Independence that we are endowed by our Creator with certain inalienable rights and when the inalienability of our rights was codified in the first 10 amendments to the Constitution, the United States was wedded to the Judeo-Christian principle that our rights stem from our humanity. This was expressly recognized recently by the Supreme Court in District of Columbia v. Heller, in which it held that the right to keep and bear arms is a fundamental personal right, not a gift of the government to a group.<br /><br /> A fundamental personal right is the natural ability of individuals to make meaningful choices without a government permission slip. May the government ever interfere with fundamental rights? The short answer is yes. The longer answer is that it can only do so if it can demonstrate a compelling governmental interest -- served by the least restrictive means, and only after due process.<br /><br /> Stated differently, if the government wants to silence your speech or deny you the right to self-defense, it must meet a very high burden in a public courtroom. It must demonstrate to a judge and jury that its need to silence or disarm you is compelling, and its goals may not be attained by any lesser means. Americans need not demonstrate a compelling need to speak or bear arms; the government must demonstrate a compelling need to prevent us from doing so.<br /><br /> That is what lawyers call black letter law -- meaning it is well-established, followed throughout the land and rarely challenged. Until now.<br /><br /> Earlier this week in the Senate, the gun control crowd sought to give nameless and faceless federal bureaucrats the ability to strip Americans of their right to keep and bear arms by putting their names on a terror watchlist/no-fly list and prohibiting those on the list from buying guns. Yet none of these senators could state the criteria for putting a name on that list, and none could identify the people who prepare or keep the list.<br /><br /> That's because these are well-guarded government secrets -- secrets that have no place in American life.<br /><br /> If a government bureaucrat can put your name on a secret list on the bureaucrat's own whim or even using secret standards and, as a result, you have lost a fundamental liberty, then the feds have transformed a natural right into a governmental gift. If the feds can create a no-fly list in secret and "no fly" comes to mean "no buy," then we have no rights but what the government will permit us to do.<br /><br /> As if to underscore his ignorance of American values, one of the senators even stated that due process is killing us. He must have forgotten his oath to uphold the Constitution, which guarantees that the government may not take life, liberty or property without due process.<br /><br /> Due process -- the absolute right to know the law and to force the government to prove a violation of it to a jury before it can take life, liberty or property -- is the essence of the rights of free people. It is utterly scandalous -- and probably disqualifying from office -- that a senator could bemoan its existence.<br /><br /> Can you see how low we have sunk? The gun control crowd doesn't care about personal liberty in a free society; it just cares about control. It wants us all to be pliant and reliant on a government that it controls; never mind that it is utterly incapable of protecting us from crazies who will resort to mass death for their own deranged purposes.<br /><br /> If the government secretly can put an American's name on a secret list and, as a result, his liberty is lost, then there are no freedoms -- just government-granted privileges. And if it can do this to the natural rights to travel and self-defense, can other fundamental rights be far behind?</p>Judge Andrew P. Napolltano2016-06-23T07:00:00ZJudge Napolitano: In Defense of Self-DefenseJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitano:-In-Defense-of-Self-Defense/492401325337290364.html2016-06-16T07:00:00Z2016-06-16T07:00:00Z<p>Most of the mass killings by gun in the United States in recent years -- Columbine, Virginia Tech, Aurora, Newtown, Charleston, San Bernardino and now Orlando -- took place in venues where local or state law prohibited carrying guns, even by those lawfully licensed to do so. The government cheerfully calls these venues "gun-free zones." They should be called killing zones.<br /><br /> As unspeakable and horrific as is the recent slaughter in Orlando, it has become just another example of the tragic consequences of government's interfering with the exercise of fundamental liberties. After a while, these events cease to shock; but they should not cease to cause us to re-examine what the government has done to us.<br /><br /> We know from reason, human nature and history that the right to defend yourself is a natural instinct that is an extension of the right to self-preservation, which is itself derived from the right to live. Life is the great gift from the Creator, and we have a duty to exercise our freedoms to preserve life until its natural expiration. But the lives we strive to preserve should not be those actively engaged in killing innocent life.<br /><br /> The Framers recognized this when they ratified the Second Amendment, which the Supreme Court recently held was written to codify -- and thus prevent the government from infringing on -- the pre-political right to own and use modern-day weapons for self-defense or to repel tyrants.<br /><br /> The term "pre-political" derives from the language of the Second Amendment, which protects "the right of the people to keep and bear Arms." The constitutional reference of "the" right to keep and bear arms makes clear that the Framers recognized that the right pre-existed the government because it stems from our humanity. That's why pre-political rights are known as fundamental or natural rights.<br /><br /> Because the right to use modern weaponry for the defense of life, liberty and property is natural, we should not need a government permission slip before exercising it, any more than we need one to exercise other natural rights, such as speech, press, assembly, travel and privacy.<br /><br /> Yet since the Progressive era 100 years ago -- ushered in by Theodore Roosevelt and Woodrow Wilson and enabled by nearly every president since -- the government has taken the position that it can care for us better than we can care for ourselves. So it has severely curtailed our rights and left us reliant on the government itself for protection.<br /><br /> The modern-day massacres are proof beyond a doubt that the government cannot protect us.<br /><br /> In the Orlando tragedy, the man who killed 49 and wounded 53 used a handgun and a rifle. The handgun accepted magazines containing 17 bullets, and the rifle accepted magazines containing 30 bullets. The killer, using both weapons, fired more than 250 times last Sunday morning. That means he reloaded his weapons about a dozen times. Each time he reloaded, he stopped shooting, as it is impossible for any person to shoot and reload simultaneously.<br /><br /> We know from forensics that the killer was a poor shot. We can deduce from that knowledge that he was a slow reloader. One learns to shoot first and reload later. It is likely that it took between three and seven seconds each time he reloaded the handgun and longer with the rifle. In those time periods, any trained person carrying a handgun in that Orlando nightclub could have wounded or killed him -- and stopped the slaughter.<br /><br /> Don't expect to hear that argument from the gun control crowd in the government. It is the same crowd that has given us the killing zones. It is the same crowd that does not trust you to protect yourself. It is the same crowd that ignores the reality that in the post-World War II era, there is not one recorded example in the U.S. of a person in a restaurant or bar getting drunk and shooting his lawfully carried handgun.<br /><br /> Hillary Clinton called the rifle the Orlando killer carried a "weapon of war." It is not. It is the same rifle that her Secret Service detail carries. Many of her acolytes have called it an assault rifle. It is not. It fires one round for each trigger pull. True assault rifles -- not those that the politicians have renamed assault rifles because they have a collapsible stock and a bayonet holder (I know this sounds ridiculous, but it is true) -- fire numerous rounds per trigger pull. They have been outlawed on U.S. soil since 1934.<br /><br /> What do we have here?<br /><br /> We have a government here that is heedless of its obligation to protect our freedoms. We have a government that, in its lust to have us reliant upon it, has created areas in the U.S. where innocent folks living their lives in freedom are made defenseless prey to monsters -- as vulnerable as fish in a barrel. And we have mass killings of defenseless innocents -- over and over and over again.<br /><br /> How dumb are these politicians who want to remove the right to self-defense? There are thousands of crazies in the U.S. who are filled with hate -- whether motivated by politics, self-loathing, religion or fear. If they want to kill, they will find a way to do so. The only way to stop them is by superior firepower. <br /><br />Disarming their law-abiding victims not only violates the natural law and the Constitution but also is contrary to all reason.<br /><br /> All these mass killings have the same ending: The killer stops only when he is killed. But that requires someone else with a gun to be there. Shouldn't that be sooner rather than later?</p>Judge Andrew P. Napolltano2016-06-16T07:00:00ZWake Up, America!Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Wake-Up-America!/-988744786599911917.html2016-06-09T07:00:00Z2016-06-09T07:00:00Z<p>While Hillary Clinton and Bernie Sanders are battling in their final round in the Democratic primaries and Donald Trump is arguing that Clinton should be in prison for failing to safeguard state secrets while she was secretary of state, the same FBI that is diligently investigating her is quietly and perniciously seeking to cut more holes in the Fourth Amendment to the Constitution.<br /><br /> That amendment -- which requires the government to obtain a search warrant issued by a judge based upon some evidence of criminal wrongdoing, called probable cause, before the government can search persons, houses, papers or effects -- is the linchpin of the right to privacy, famously referred to by Justice Louis Brandeis as the right to be let alone.<br /><br /> The Fourth Amendment has a painful yet unambiguous history. The essence of that history is the well-documented and nearly universal Colonial revulsion to the British use of general warrants.<br /><br /> General warrants, which were usually issued in secret in London, permitted British soldiers and agents in America to search wherever they wished and seize whatever they found. General warrants were not based upon any individualized suspicion, much less any probable cause. Their stated purpose was the need to enforce the Stamp Act, a totalitarian measure that cost more to enforce than it generated in revenue.<br /><br /> The Stamp Act required all colonists to purchase and affix stamps to all legal, financial, political, personal and public documents. It was billed as a revenue-gathering measure, but it truly was used as an excuse to humiliate the colonists by permitting soldiers and agents to enter their homes ostensibly looking for the stamps. They were really looking for evidence of revolutionary ideas and plans against the king.<br /><br /> After Americans won the Revolution and wrote the Constitution, they did so with the determination never to permit the new government here to do to Americans what the pre-Revolutionary British government had done to the colonists. Their chosen instrument of that prevention was the Fourth Amendment.<br /><br /> But the feds have been wearing away at the right to privacy for generations. The Right to Financial Privacy Act (which has nothing to do with protecting privacy) permits federal agents to obtain certain bank records with search warrants issued by other federal agents -- as opposed to judges -- as long as they are looking for mobsters or drug dealers. <br /><br />The Patriot Act (which has nothing to do with patriotism) enables FBI agents to issue search warrants to other FBI agents for certain business records -- including doctors' and lawyers' offices, car and jewelry dealers, and the post office -- as long as they are looking for threats to national security. And the Electronic Communications Privacy Act (which interferes with the privacy of almost all electronic communications) permits FBI agents to access certain metadata (the who, where and when of emails, but not their contents), as long as one FBI agent issues the warrant to another and as long as the recipient uses it for national security purposes.<br /><br /> Now the FBI wants access to everyone's internet browser history, as long as its agents are looking for spies or terrorists; and again, it proposes that rather than present probable cause to a judge and seek a warrant as the Fourth Amendment requires, one FBI agent be authorized to issue a search warrant to another.<br /><br /> The federal government's antipathy to the Fourth Amendment is palpable and well-known -- notwithstanding that everyone who works for the feds has taken an oath to uphold the Constitution, not evade or avoid it. Last week, FBI Director James Comey effectively told the Senate committee that is writing this damnable new legislation that complying with the Fourth Amendment is a pain in the neck and his agents could operate more efficiently without it.<br /><br /> Wake up, America. The Fourth Amendment is supposed to be a pain in the neck for the government.<br /><br /> The Fourth Amendment was expressly written to protect our individual right to privacy from the voracious and insatiable appetite of government to assault it. It was also written to ensure that government can seek evidence against bad guys, but it was meant to force the government to target them based on real evidence, not to let it sweep them up in a suspicionless net along with the innocent.<br /><br /> When Edward Snowden revealed the nature and extent of domestic spying on everyone in America three years ago, he revealed a secret that somehow 60,000 federal agents and contractors were able to keep. <br /><br />That secret was a novel and perverse interpretation of certain federal statutes so as to use them to justify spying on innocents.<br /><br /> But what we have here with this FBI request to access our browsing history -- which reveals deeply personal, political, medical, legal and intimate data about us -- is coming about openly through our elected representatives. It is not only the FBI that secretly wants this but also members of Congress who are on the verge of openly approving it.<br /><br /> And don't expect your internet service provider to tell you that the FBI has come calling, as this legislation would prohibit the service provider from telling you that your records have been accessed. This provision violates the First Amendment to the Constitution, which states that "Congress shall make no law ... abridging the freedom of speech."<br /><br /> Wake up, America. How many congressional assaults on the Constitution will we tolerate?<br /><br /> Since the government obviously does not take its obligation to uphold the Constitution seriously, why bother with requiring one FBI agent to authorize another? Why not let any FBI agent search wherever he or she wants, break down any door, seize any records and invade anyone's privacy, lest compliance with the Constitution be a pain in the neck.<br /><br /> Wake up, America. The Constitution has become a pain in the neck to our personal liberties, because as a safeguard of them, it obviously no longer works.</p>Judge Andrew P. Napolltano2016-06-09T07:00:00ZHillary on the RopesJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hillary-on-the-Ropes/53058889980107146.html2016-06-02T07:00:00Z2016-06-02T07:00:00Z<p>Late last week, the inspector general of the State Department completed a yearlong investigation into the use by Hillary Clinton of a private email server for all of her official government email as secretary of state. <br /><br />The investigation was launched when information technology officials at the State Department under Secretary of State John Kerry learned that Clinton paid an aide to migrate her public and secret State Department email streams away from their secured government venues and onto her own, non-secure server, which was stored in her home.<br /><br /> The migration of the secret email stream most likely constituted the crime of espionage -- the failure to secure and preserve the secrecy of confidential, secret or top-secret materials.<br /><br /> The inspector general interviewed Clinton's three immediate predecessors -- Madeleine Albright, Colin Powell and Condoleezza Rice -- and their former aides about their email practices. He learned that none of them used emails as extensively as Clinton, none used a private server and, though Powell and Rice occasionally replied to government emails using private accounts, none used a private account when dealing with state secrets.<br /><br /> Clinton and her former aides declined to cooperate with the inspector general, notwithstanding her oft-stated claim that she "can't wait" to meet with officials and clear the air about her emails.<br /><br /> The inspector general's report is damning to Clinton. It refutes every defense she has offered to the allegation that she mishandled state secrets. It revealed an email that hadn't been publicly made known showing Clinton's state of mind. And it paints a picture of a self-isolated secretary of state stubbornly refusing to comply with federal law for venal reasons; she simply did not want to be held accountable for her official behavior.<br /><br /> The report rejects Clinton's argument that her use of a private server "was allowed." The report makes clear that it was not allowed, nor did she seek permission to use it. She did not inform the FBI, which had tutored her on the lawful handling of state secrets, and she did not inform her own State Department IT folks.<br /><br /> The report also makes clear that had she sought permission to use her own server as the instrument through which all of her email traffic passed, such a request would have been flatly denied.<br /><br /> In addition, the report rejects her argument -- already debunked by the director of the FBI -- that the FBI is merely conducting a security review of the State Department's email storage and usage policies rather than a criminal investigation of her. The FBI does not conduct security reviews. The inspector general does.<br /><br /> This report is the result of that review, and Clinton flunked it, as it reveals that she refused to comply with the same State Department storage and transparency regulations she was enforcing against others.<br /><br /> Here is what is new publicly: When her private server was down and her BlackBerry immobilized for days at a time, she refused to use a government-issued BlackBerry because of her fear of the Freedom of Information Act. She preferred to go dark, or back to the 19th-century technology of having documents read aloud to her.<br /><br /> This report continues the cascade of legal misery that has befallen her in the past eight months. The State Department she once headed has rejected all of her arguments. Two federal judges have ordered her aides to testify about a conspiracy in her office to evade federal laws. She now awaits an interrogation by impatient FBI agents, which will take place soon after the New Jersey and California primaries next week.<br /><br /> Her legal status can only be described as grave or worse than grave.<br /><br /> We know that Clinton's own camp finally recognizes just how dangerous this email controversy has become for her. Over the Memorial Day weekend, John Podesta, the chairman of Clinton's campaign, sent an email to her most important donors. In it, he recognizes the need to arm the donors with talking points to address Clinton's rapidly deteriorating support with Democratic primary voters.<br /><br /> The Podesta email suggests attempting to minimize Clinton's use of her private server by comparing it to Powell's occasional use of his personal email account. This is a risky and faulty comparison. None of Powell's emails from his private account -- only two or three dozen -- contained matters that were confidential, secret or top-secret.<br /><br /> Clinton diverted all of her email traffic to her private server -- some 66,000 emails, about 2,200 of which contained state secrets. Moreover, Powell never used his own server, nor is he presently seeking to become the chief federal law enforcement officer in the land.<br /><br /> The inspector general who wrote the report was nominated by President Barack Obama and confirmed by the Senate in 2013, after Clinton left office. He did a commendable job -- one so thorough and enlightening that it has highlighted the important role that inspectors general play in government today.<br /><br /> Today every department in the executive branch has, by law, an inspector general in place who has the authority to investigate the department -- keeping officials' feet to the fire by exposing failure to comply with federal law.<br /><br /> If you are curious as to why the inspector general of the State Department during Clinton's years as secretary did not discover all of Clinton's lawbreaking while she was doing it, the answer will alarm but probably not surprise you.<br /><br /> There was no inspector general at the State Department during Clinton's tenure as secretary -- a state of affairs unique in modern history; and she knew that. How much more knowledge of her manipulations will the Justice Department tolerate before enforcing the law?</p>Judge Andrew P. Napolltano2016-06-02T07:00:00ZThe Contagion of Government LyingJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Contagion-of-Government-Lying/155047119848027230.html2016-05-26T07:00:00Z2016-05-26T07:00:00Z<p><em>"Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." -- Justice Louis Brandeis (1856-1941)</em> <br /><br /> Last week, this column chronicled the startling admissions of lying by White House senior adviser Ben Rhodes. Rhodes readily acknowledged to The New York Times that he lied to the public and to members of Congress during the negotiations that produced the recent Iranian nuclear deal so as to temper the "irrational" fear that some senators and representatives had of the mullahs who run the government in Iran.<br /><br /> He was asked -- not subpoenaed -- to testify before the House Oversight and Government Reform Committee about his lying, and he refused to show up, claiming his lies were protected by executive privilege. Because he spoke publicly about this, he has no privilege, yet nothing further happened. The committee gave up the ghost.<br /><br /> Also last week, in a federal court in Brownsville, Texas, the government was caught lying again -- this time by a federal judge. Here is the back story.<br /><br /> In 2012, President Barack Obama issued numerous executive orders directing the departments of Justice and Homeland Security to enforce a version of immigration law that the president himself had scripted after Congress declined to pass it.<br /><br /> The president crafted a path to permanent residence in the United States for undocumented immigrants who are the parents of children who were born here or are otherwise residents lawfully.<br /><br /> The president's plan would add between 4 million and 5 million people as lawful residents. That would add to the financial burdens of the states where these folks reside, because they are required by federal law to provide a social safety net -- health care, education, safety, welfare -- to all legal residents.<br /><br /> Hence, 26 states sued the federal government, arguing in effect that the president exceeded his constitutional powers when he issued his executive orders and that the immediate effect of their enforcement would be massive, unplanned, unfunded financial burdens on the states.<br /><br /> A federal judge agreed with the states and enjoined the president from enforcing his orders. During the course of the oral arguments in the case, the judge asked the lawyers from the Department of Justice who were representing the president whether the programs his executive orders established had yet begun. <br /><br />The lawyers replied that they had not.<br /><br /> On three more occasions, one orally in the same public courtroom and twice in written submissions to the court, the DOJ lawyers insisted that the president's programs had not yet begun. In reliance upon those assertions, the states asked only for an injunction going forward, not for an injunction on any applications being processed by the feds, because they were told that none existed.<br /><br /> The government lawyers lied.<br /><br /> Last week, we learned that the Department of Homeland Security has surreptitiously accepted applications from more than 100,000 undocumented immigrants for permanent residence under the terms of President Obama's unconstitutional executive orders.<br /><br /> The orders may be characterized as unconstitutional because the same federal judge to whom the DOJ lawyers lied, as well as a panel of the U.S. Court of Appeals for the 5th Circuit to which the DOJ appealed the injunction against the president, found them so. Those findings await a determination by the Supreme Court, which is expected by the end of next month.<br /><br /> The problem of lawyers lying to judges is extremely serious. Our system of litigation -- lawyers present facts and argue about laws, and judges rely on the truthfulness of what the lawyers have told them -- is built on trust. Because lawyers know the facts in their cases more intimately than judges do, judges rely on lawyers to tell them the truth.<br /><br /> At first, these DOJ lawyers lied. Then they lied about their lying. Then they reluctantly acknowledged that they had momentary lapses in understanding, an argument that the court rejected because of the repeated nature of their lying. The lawyers said the programs had not begun, when in fact they had -- to a large degree.<br /><br /> The judge's response in the case was curious. He ordered the DOJ lawyers to take ethics classes. I would have done differently. Lying to the court is so severe a violation of the ethical rules, so disruptive of the moral order, that its significance is diminished by the so-called cure of ethics classes.<br /><br /> I would have barred all lawyers who lied to me from ever appearing in my courtroom, and I would have removed them from the case. I would also have referred what I knew about them to ethics prosecutors in the states and federal districts where they are admitted.<br /><br /> Lawyers have an obligation of candor to the judges before whom they appear. That duty is no less serious when the lawyers work for the government than when they work for private clients.<br /><br /> Because the government prosecutes people who lie to it and its liars almost never can be prosecuted, government lying is grave. It is equivalent to government lawbreaking because when people to whom the government lies -- judges or litigants or members of Congress or the public -- rely on those lies, they often do so to their detriment. They lose a right or an opportunity that often cannot be recaptured.<br /><br /> I have often asked rhetorically whether the government works for us or we work for the government. The answer to this inquiry is obvious. It is only a fiction that the government works for us.<br /><br /> Yet fear of the consequences of government lying should terrify anyone who believes in the rule of law and fair play. Those consequences can be as contagious as government lawbreaking.</p>Judge Andrew P. Napolltano2016-05-26T07:00:00ZWho Answers for Government Lies?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Who-Answers-for-Government-Lies/4334779600650987.html2016-05-19T07:00:00Z2016-05-19T07:00:00Z<p>Here is a quick pop quiz. What happens if we lie to the government? What happens if the government lies to us? Does it matter who does the lying?<br /><br /> Last year, the Obama administration negotiated an agreement with the government of Iran permitting Iran to obtain certain materials for the construction of nuclear facilities. It also permitted the release of tens of billions of dollars in Iranian assets that had been held in U.S. banks and that the courts had frozen, and it lifted trade sanctions. In exchange, certain inspections of Iranian nuclear facilities can occur under certain circumstances.<br /><br /> During the course of the negotiations, many critics made many allegations about whether the Obama administration was telling the truth to Congress and to the American people.<br /><br /> Was there a secret side deal? The administration said no. Were we really negotiating with moderates in the Iranian government, as opposed to the hard-liners depicted in the American media? The administration said yes. Can U.N. or U.S. inspectors examine Iranian nuclear facilities without notice and at any time? The administration said yes.<br /><br /> It appears that this deal is an executive agreement between President Barack Obama and whatever faction he believes is running the government of Iran. That means that it will expire if not renewed at noon on Jan. 20, 2017, when the president's term ends.<br /><br /> It is not a treaty, because it was not ratified by a two-thirds vote of the Senate, which the Constitution requires for treaties. Yet the Obama administration cut a deal with the Republican congressional leadership, unknown to the Constitution and unheard of in the modern era. That deal provided that the agreement would be valid unless two-thirds of those voting in both houses of Congress objected. They didn't.<br /><br /> Then last week, the president's deputy national security adviser for strategic communications, Ben Rhodes, who managed the negotiations with Iran, told The New York Times that he lied when he spoke to Congress and the press about the very issues critics were complaining about. He defended his lies as necessary to dull irrational congressional fears of the Iranian government.<br /><br /> I am not addressing the merits of the deal, though I think that the more Iran is reaccepted into the culture of civilized nations the more economic freedom will come about for Iranians. And where there is economic freedom, personal liberties cannot be far behind.<br /><br /> I am addressing the issue of lying. Rhodes' interview set off a firestorm of criticism and "I told you so" critiques in Capitol Hill, and the House Oversight and Government Reform Committee summoned him to explain his behavior. It wanted to know whether he told the truth to Congress and the public during the negotiations or he told the truth to The New York Times last week.<br /><br /> He apparently dreads answering that question, so he refused to appear and testify. One wonders how serious this congressional committee is, because it merely requested Rhodes' appearance; it did not subpoena him. A congressional subpoena has the force of law and requires either compliance or interference by a federal court. Rhodes' stated reason for not testifying is a claim of privilege.<br /><br /> What is a privilege? It is the ability under the law to hide the truth in order to preserve open communications. It is a judgment by lawmakers and judges that in certain narrowly defined circumstances, freedom of communication is a greater good than exposing the truth.<br /><br /> Hence the attorney/client and priest/penitent and physician/patient privileges have been written into the law so that people can freely tell their lawyers, priests and doctors what they need to tell them without fear that they will repeat what they have heard.<br /><br /> Executive privilege is the ability of the president and his aides to withhold from anyone testimony and documents that reflect military, diplomatic or sensitive national security secrets. This is the privilege that Rhodes has claimed.<br /><br /> Yet the defect in Rhodes' claim of privilege here is that he has waived it by speaking about the Iranian negotiations to The New York Times. Waiver -- the knowing and intentional giving up of a privilege or a right -- defeats the claim of privilege.<br /><br /> Thus, by speaking to the Times, Rhodes has admitted that the subject of his conversation -- the Iranian negotiations -- is not privileged. One cannot selectively assert executive privilege. Items are either privileged or not, and a privilege, once voluntarily lifted, cannot thereafter successfully be asserted.<br /><br /> The House Oversight and Government Reform Committee should subpoena Rhodes, as well as the Times reporter to whom he spoke, to determine where the truth lies.<br /><br /> It is a crime to lie to the government when communicating to it in an official manner. Just ask Martha Stewart. One cannot lawfully lie under oath or when signing a document one is sending to the government or when answering questions from government agents. Just ask Roger Clemens. Stated differently, if Rhodes told the FBI either what he told Congress or what he told The New York Times -- whichever version was untrue -- he would be exposed to indictment.<br /><br /> Ben Rhodes is one of the president's closest advisers. They often work together on a several-times-a-day basis. Could he have lied about this Iranian deal without the president's knowing it?<br /><br /> Does anyone care any longer that the government lies to the American people with impunity and prosecutes people when it thinks they have lied to it? Does the government work for us, or do we work for the government?</p>Judge Andrew P. Napolltano2016-05-19T07:00:00ZA Perfect StormJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/A-Perfect-Storm/436725440516587722.html2016-05-12T07:00:00Z2016-05-12T07:00:00Z<p>The bad legal news for Hillary Clinton continued to cascade upon her presidential hopes during the past week in what has amounted to a perfect storm of legal misery. Here is what happened.<br /><br /> Last week, Mrs. Clinton's five closest advisors when she was Secretary of State, four of whom remain close to her and have significant positions in her presidential campaign, were interrogated by the FBI. These interrogations were voluntary, not under oath, and done in the presence of the same legal team which represented all five aides.<br /><br /> The atmosphere was confrontational, as the purpose of the interrogations is to enable federal prosecutors and investigators to determine whether these five are targets or witnesses. Stated differently, the feds need to decide if they should charge any of these folks as part of a plan to commit espionage, or if they will be witnesses on behalf of the government should there be such a prosecution; or witnesses for Mrs. Clinton.<br /><br /> In the same week, a federal judge ordered the same five persons to give videotaped testimony in a civil lawsuit against the State Department which once employed them in order to determine if there was a "conspiracy" -- that's the word used by the judge -- in Mrs. Clinton's office to evade federal transparency laws. Stated differently, the purpose of these interrogations is to seek evidence of an agreement to avoid the Freedom of Information Act requirements of storage and transparency of records, and whether such an agreement, if it existed, was also an agreement to commit espionage -- the removal of state secrets from a secure place to a non-secure place.<br /><br /> Also earlier this week, the State Department revealed that it cannot find the emails of Bryan Pagliano for the four years that he was employed there. Who is Bryan Pagliano? He is the former information technology expert, employed by the State Department to problem shoot Mrs. Clinton's entail issues.<br /><br /> Pagliano was also personally employed by Mrs. Clinton. She paid him $5,000 to migrate her regular State Department email account and her secret State Department email account from their secure State Department servers to her personal, secret, non-secure server in her home in Chappaqua, New York. That was undoubtedly a criminal act. Pagliano either received a promise of non-prosecution or an actual order of immunity from a federal judge. He is now the government's chief witness against Mrs. Clinton.<br /><br /> It is almost inconceivable that all of his emails have been lost. Surely this will intrigue the FBI, which has reportedly been able to retrieve the emails Mrs. Clinton attempted to wipe from her server.<br /><br /> While all of this has been going on, intelligence community sources have reported about a below the radar screen, yet largely known debate in the Kremlin between the Russian Foreign Ministry and the Russian Intelligence Services. They are trying to come to a meeting of the minds to determine whether the Russian government should release some 20,000 of Mrs. Clinton's emails that it obtained either by hacking her directly or by hacking into the email of her confidante, Sid Blumenthal.<br /><br /> As if all this wasn't enough bad news for Mrs. Clinton in one week, the FBI learned last week from the convicted international hacker, who calls himself Guccifer, that he knows how the Russians came to possess Mrs. Clinton's emails; and it is because she stored, received and sent them from her personal, secret, non-secure server.<br /><br /> Mrs. Clinton has not been confronted publicly and asked for an explanation of her thoughts about the confluence of these events, but she has been asked if the FBI has reached out to her. It may seem counter-intuitive, but in white collar criminal cases, the FBI gives the targets of its investigations an opportunity to come in and explain why the target should not be indicted.<br /><br /> This is treacherous ground for any target, even a smart lawyer like Mrs. Clinton. She does not know what the feds know about her. She faces a damned-if-she-does and damned-if-she-doesn't choice here.<br /><br /> Any lie and any materially misleading statement -- and she is prone to both -- made to the FBI can form the basis for an independent criminal charge against her. This is the environment that trapped Martha Stewart. Hence the standard practice among experienced counsel is to decline interviews by the folks investigating their clients.<br /><br /> But Mrs. Clinton is no ordinary client. She is running for president. She lies frequently. We know this because, when asked if the FBI has reached out to her for an interview, she told reporters that neither she nor her campaign had heard from the FBI; but she couldn't wait to talk to the agents.<br /><br /> That is a mouthful, and the FBI knows it. First, the FBI does not come calling upon her campaign or even upon her. The Department of Justice prosecutors will call upon her lawyers -- and that has already been done, and Mrs. Clinton knows it. So her statements about the FBI not calling her or the campaign were profoundly misleading, and the FBI knows that.<br /><br /> Mrs. Clinton's folks are preparing for the worst. They have leaked nonsense from "U.S. officials" that the feds have found no intent to commit espionage on the part of Mrs. Clinton. Too bad these officials -- political appointees, no doubt -- skipped or failed Criminal Law 101. The government need not prove intent for either espionage or for lying to federal agents.<br /><br /> And it prosecutes both crimes very vigorously.</p>Judge Andrew P. Napolltano2016-05-12T07:00:00ZHillary's Secret WeaponJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hillarys-Secret-Weapon/540749477604259335.html2016-05-05T07:00:00Z2016-05-05T07:00:00Z<p>Last weekend, Hillary Clinton dispatched her husband, former President Bill Clinton, to offer a defense of her alleged espionage. <br /><br />The espionage allegations against her are that in order to escape public and Obama administration scrutiny, she had all of her emails as secretary of state diverted from a secure government server to a non-secure server in her home in Chappaqua, New York, and, in so doing, failed to protect state secrets in at least 2,200 instances during her four-year tenure.<br /><br /> The essence of her husband's defense is that the secrets were not secrets when she saw them and the investigation of her is all "a game."<br /><br /> We know that the FBI is getting closer to Hillary Clinton, because Bill Clinton had not addressed her email issues publicly before last weekend. The defense he offered belies the facts and the law.<br /><br /> He argued that prosecuting his wife over her emails is akin to prosecuting someone for driving a car in a 50-mile-per-hour zone at 40 mph because the police have arbitrarily and without notice changed the speed limit to 35 mph.<br /><br /> The implication in his argument is that Mrs. Clinton's emails were retroactively classified as confidential, secret or top-secret after she received or sent them and therefore she had no notice of their sensitivity.<br /><br /> His argument is unavailing for two reasons. The first is that it is untrue. Emails are confidential, secret or top-secret at the time they are created, whether marked or not.<br /><br /> The second reason is that Mrs. Clinton signed an oath on her first full day as secretary of state -- after she received a two-hour tutorial from two FBI agents on the proper care and lawful handling of state secrets. <br /><br />In that oath, she acknowledged that she had an obligation to recognize and protect state secrets on the basis of the sensitive nature of the information contained in them -- whether they bore classified warnings or markings or not.<br /><br /> State secrets are materials that, if revealed, could harm the national security of the United States.<br /><br /> Bill Clinton's speed zone example, if true, would be a profound violation of due process, the foundation of which is notice. In a free society, for a prosecution to be successful, the government must show that the defendant had notice of the behavior expected of her. Hence, changing the speed limit without notice would be a profound violation of due process and fatal to a prosecution for speeding.<br /><br /> His example is not even remotely analogous to Mrs. Clinton's behavior while secretary of state.<br /><br /> Why did he address this last Saturday?<br /><br /> He probably did so for two reasons. The first is that people in Hillary Clinton's inner circle from her time as secretary of state have been offered interviews by the FBI. They all hired the same lawyer, and with that lawyer, they are in the process of answering FBI questions. Bill Clinton -- for whom the FBI once worked -- knows that the investigation will soon be at his wife's doorstep, and he wanted to get her version out to Democratic primary voters.<br /><br /> The second reason for Mr. Clinton's broadside relates to an obscure but profound admission by the Department of Justice. Here is the back story.<br /><br /> One of the 39 Freedom of Information Act lawsuits brought in connection with Mrs. Clinton's email scandal was filed recently by Jason Leopold, a reporter for Vice News. He seeks copies of the emails Clinton tried unsuccessfully to wipe clean from her server, as well as copies of communications between the DOJ and Mrs. Clinton.<br /><br /> The DOJ moved to dismiss his lawsuit, and in support of its motion, it filed a secret affidavit with the court, signed by an FBI agent familiar with the bureau's investigation of Mrs. Clinton. In its brief filed the day before Mr. Clinton made his silly speeding prosecution analogy, the DOJ -- which also once worked for him -- characterized the secret affidavit as a summary of the investigation of Mrs. Clinton. The DOJ argued that compliance with Leopold's FOIA request would jeopardize that investigation by exposing parts of it prematurely.<br /><br /> In the same brief, the DOJ referred to the investigation of Mrs. Clinton as a law enforcement proceeding.<br /> That was the first public acknowledgment by the DOJ that it is investigating criminal behavior -- a law enforcement proceeding -- and it directly contradicts Mrs. Clinton's oft-repeated assertions that the FBI investigation is merely a routine review of the State Department's classification procedures.<br /><br /> Many in the legal and intelligence communities have discounted her assertions because reviewing classification procedures of the State Department is not a function of the FBI, but now we have the government's own words that its investigation of Mrs. Clinton's email handling is one implicating law enforcement. Since that late Friday filing, Mrs. Clinton has ceased referring publicly to the FBI probe as an evaluation of the State Department's security procedures.<br /><br /> Perhaps she should tell her husband what was on that server before she tries to use him as a not-so-secret weapon.<br /><br /> Perhaps she now recognizes how hard-pressed she will be to claim to the FBI or to a jury that she did not know that satellite photos of a North Korean nuclear facility or transcripts from wiretaps of Yemeni intelligence agents' cellphone calls or the itinerary of the late U.S. Ambassador to Libya Chris Stevens in the days before his murder or true names of American undercover intelligence agents -- all of which were in her emails -- were state secrets.<br /><br /> Perhaps she knows now that this is not a game.</p>Judge Andrew P. Napolltano2016-05-05T07:00:00ZFruit of the Poisonous TreeJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Fruit-of-the-Poisonous-Tree/337853474088078027.html2016-04-28T07:00:00Z2016-04-28T07:00:00Z<p>Would all of our lives be safer if the government could break down all the doors it wishes, listen to all the conversations it could find and read whatever emails and text messages it could acquire? Perhaps. But who would want to live in such a society?<br /><br /> To prevent that from happening here, the Framers ratified the Fourth Amendment, which is the linchpin of privacy and was famously called by Justice Louis Brandeis "the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men." He wrote those words in his dissent in the first wiretapping case to reach the Supreme Court, Olmstead v. United States, in 1928.<br /><br /> Roy Olmstead had been convicted for bootlegging on the basis of words he used in overheard telephone conversations. Because he had used a phone at his place of work that the government had tapped without breaking and entering his workplace, the high court ruled -- despite the fact that the government had not obtained a warrant -- that he had no right to privacy. Brandeis dissented.<br /><br /> Over time, the Brandeis dissent became the law. The Fourth Amendment, which protects the privacy of all in our "persons, houses, papers, and effects," was interpreted to cover telephone conversations and eventually emails and text messages. So today, if the government wants information contained in those communications, it needs to obtain a search warrant, which the Fourth Amendment states can only be given by a judge -- and only upon a showing of probable cause of evidence of a crime contained in the communications it seeks.<br /><br /> If the government does not obtain a search warrant and listens to phone conversations or reads emails or text messages nevertheless and attempts to use what it heard or read to acquire other evidence or directly in the prosecution of a defendant, that is unlawful. That type of information is known as the fruit of the poisonous tree.<br /><br /> Evidence procured that is the fruit of the poisonous tree has been inadmissible in federal criminal prosecutions in the United States for the past 100 years and in state criminal prosecutions for the past 50 years.<br /><br /> Until now.<br /><br /> Now comes the super-secret court established by the Foreign Intelligence Surveillance Act, reaffirmed by Congress last year under the so-called USA Freedom Act. Beware the names of federal statutes, as they often produce results that are the opposite of what their names imply; and this is one of them.<br /><br /> Congress has unconstitutionally authorized the FISA court to issue search warrants on the basis of governmental need -- a standard that is no standard at all because the government can always claim that it needs what it wants. The FISA court does not require a showing of probable cause for its warrants, because it accepts the myth that the government is listening to or reading words by foreign people for foreign intelligence purposes only, not for prosecutorial purposes.<br /><br /> Never mind that Congress cannot change the plain meaning of the Constitution. Never mind that the Fourth Amendment protects all people in the United States, American or foreign, from all parts of the government for all purposes, not just criminal prosecutions.<br /><br /> Yet the FISA court still grants general warrants -- look where you wish and seize what you find -- exposing our innermost thoughts to the prying eyes of the intelligence community in direct contravention of the Fourth Amendment.<br /><br /> Enter the USA Freedom Act. One of its selling points to Congress was that it would permit the FISA court to appoint a lawyer to challenge hypothetically some of its behavior. The court recently made such an appointment, and the lawyer appointed challenged the policy of the National Security Agency, the federal government's domestic spying agency, of sharing data it acquires via the unconstitutional FISA warrants with the FBI. She argued that the data sharing goes far beyond the stated purpose of the FISA warrants, which is to gather foreign intelligence data from foreign people, not evidence of domestic crimes of anyone whose emails might be swept up by those warrants.<br /><br /> The challenge revealed publicly what many of us have condemned for years: The NSA actually makes its repository of raw data from emails and text messages available for the FBI to scour at will, without the FBI's obtaining a warrant issued by a judge pursuant to the Fourth Amendment.<br /><br /> In an opinion issued in November but kept secret until last week, the FISA court rejected the hypothetical challenge of its own appointee and ruled that the NSA could continue to share what it wants with the FBI.<br /><br /> There are several problems with this ruling. The first is the hypothetical nature of the challenge. Federal courts do not exist in a vacuum. They do not render advisory opinions. They can only hear real cases and real controversies involving real plaintiffs and real defendants, not hypothetical ones as was the case here.<br /><br /> The whole apparatus of hypothetical challenge and hypothetical ruling is constitutionally meaningless. It was the moral and legal equivalent of a law school moot court oral argument. Yet federal and soon state law enforcement will interpret it as giving cover to the NSA/FBI practice of data sharing, which is clearly unconstitutional because it is the use of fruit from a poisonous tree.<br /><br /> FISA and the USA Freedom Act were enacted under the premise -- the pretense -- that the data collected under them would be used for foreign intelligence purposes only so that attacks could be thwarted and methods could be discovered. Yet the use by the FBI of extraconstitutionally obtained intelligence data for ordinary criminal prosecutions defies the stated purposes of the statutes and contradicts the Fourth Amendment.<br /><br /> If this is keeping us safe, who or what will safeguard our freedoms? Who will keep us safe from those who have sworn to uphold the Constitution yet defy it?</p>Judge Andrew P. Napolltano2016-04-28T07:00:00ZThe President, the Court and ImmigrationJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-President-the-Court-and-Immigration/-5504311260176147.html2016-04-21T07:00:00Z2016-04-21T07:00:00Z<p>In 2014, President Barack Obama signed 12 executive orders directing various agencies in the departments of State, Justice and Homeland Security to refrain from deporting some 4 million adult immigrants illegally present in the United States if they are the parents of children born here or legally present here and if they hold a job, obtain a high-school diploma or its equivalent, pay taxes and stay out of prison.<br /><br /> Unfortunately for the president, the conditions he established for avoiding deportation had been rejected by Congress.<br /><br /> In response to the executive orders, 26 states and the House of Representatives sued the president and the recipients of the orders, seeking to prevent them from being enforced. The states and the House argued that the president effectively rewrote the immigration laws and changed the standards for the deportation of unlawfully present adult immigrants.<br /><br /> The states also argued that because federal law requires them to offer the same safety net of social services for those illegally present as they do for those lawfully present, the financial burden that the enforcement of those orders would put upon them would be far beyond their budgetary limits. Moreover, they argued, enforcement of the president's orders would effectively constitute a presidential command to the states to spend their own tax dollars against their wishes, and the president lacks the power to do that.<br /><br /> In reply, the president argued that the literal enforcement of the law creates an impossible conundrum for him. He does not want to deport the parents of American children, as that destroys families and impairs the welfare of children; and he cannot deport children who were born here, as they are American citizens. Hence his novel resolution.<br /><br /> The case was filed in Texas, where a federal district court judge agreed with the states and signed an order that prohibited the feds from enforcing the president's orders, pending a full trial. The feds appealed.<br /><br /> The U.S. Court of Appeals for the 5th Circuit in New Orleans upheld the injunction against the president. In so doing, it agreed with the states that the financial burden on them that would come from the enforcement of these executive orders would be unconstitutional. It also agreed with the House of Representatives that the president exceeded his authority under the Constitution and effectively rewrote the laws.<br /><br /> This week, the Supreme Court heard the feds' appeal. Because the seat formerly occupied by the late Justice Antonin Scalia for 30 years is still vacant, the court has just eight justices -- for the most part, four conservatives and four liberals. A tie vote in the court, which appears likely in this case, will not set any precedent, but it will retain the injunction against the president. The most recent time this happened was 1952, when the court enjoined President Harry Truman from seizing steel mills during the Korean conflict.<br /><br /> Though the issue here is immigration, the constitutional values underlying the case are more far-reaching. Since the era of Woodrow Wilson -- accelerated under Franklin D. Roosevelt, enhanced under Lyndon B. Johnson and brought over the top under George W. Bush -- Congress has ceded some of its powers to the president. It has enabled him to borrow unlimited amounts of money and to spend as he sees fit. It has looked the other way when presidents have started wars, arrested Americans without charge or trial and even killed Americans.<br /><br /> Can Congress voluntarily give some of its powers to the president, either by legislation or by impotent acquiescence when the president takes them?<br /><br /> In a word, no.<br /><br /> The purpose of the division of powers -- Congress writes the laws, the president enforces the laws and the courts interpret them and decide what they mean -- is to preserve personal liberty by preventing the accumulation of too much power in one branch of government.<br /><br /> The 26 states and the House told the Supreme Court this week that the president is enforcing the laws not as Congress wrote them but as he wishes them to have been written, because he actually directed officials of the executive branch to enforce the versions of the laws that he rewrote instead of the laws on the books.<br /><br /> That arguably violates his oath of office, in which he agreed that he would "faithfully" enforce all federal laws. We know from his notes that James Madison, when he drafted the presidential oath, insisted that the word "faithfully" be inserted so as to impress upon presidents their obligation to enforce laws even if they disagree with them.<br /><br /> During oral argument in the court this week, there was a bizarre exchange over terminology that the president used in his orders. In a weird series of questions, Chief Justice John Roberts Jr. asked whether the president's executive orders could be salvaged constitutionally by excising or changing a few words.<br /><br /> This was improper because it treated an executive order as if it were a statute. It is not the job of the court to find ways to salvage executive orders as it is to salvage statutes, because the Constitution has given "all legislative Powers" to Congress and none to the president.<br /><br /> Statutes are presumed to be constitutional. Executive orders that contradict statutes are presumed to be unconstitutional, and the court has no business trying to save them.<br /><br /> All presidents from time to time have exercised discretion upon individuals when it comes to enforcing laws that pose hardships. But none has done so for 4 million people, and none has written substitute laws of his own making. Until now.</p>Judge Andrew P. Napolltano2016-04-21T07:00:00ZObama Damns Hillary With Faint PraiseJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Obama-Damns-Hillary-With-Faint-Praise/77478127412946763.html2016-04-14T07:00:00Z2016-04-14T07:00:00Z<p>President Barack Obama's recent remarks to my Fox News colleague Chris Wallace about Hillary Clinton's email issues were either Machiavellian or dumb. It is difficult to tell from them whether he wants the mountain of evidence of her criminal behavior presented to a federal grand jury or he wants her to succeed him in the White House.<br /><br /> He cannot have both.<br /><br /> His efforts to minimize his former secretary of state's diversion of emails from government-secured servers to her own non-secure home server by calling it "careless" may actually harm her in the eyes of the public or even serve as a dog whistle to the FBI. That's because carelessness is a species of negligence, and espionage, which is the failure to safeguard state secrets by removing them from their proper place of custody, is the rare federal crime that can be proved by negligence -- to be precise, gross negligence.<br /><br /> Gross negligence is the failure to perform a high legal duty with the great probability of an improper result -- for example, driving a car 90 miles per hour in New York's Times Square. The high legal duty Clinton had was to safeguard state secrets; the improper result is the exposure of those secrets contained in her emails.<br /><br /> What did she do that was criminal, and who was harmed by her behavior?<br /><br /> Clinton knowingly diverted all of her governmental emails from secure government servers to her own non-secure server in her New York residence. Among the 60,000 emails she diverted were 2,200 that contained state secrets. Because the essence of espionage is the removal of secrets to non-secure venues, the crime is complete upon removal. So Obama's statement in the Wallace interview that Clinton caused no harm is irrelevant. In espionage cases, the government need not prove that the defendant caused any harm.<br /><br /> Obama's further effort in the Wallace interview to minimize the classification of secrets into the statutory categories of "confidential," "secret" and "top secret" by snarkily commenting that "there's classified and then there's classified" is not what one would expect from someone who has sworn to take care that all federal laws are enforced.<br /><br /> Obama has interpreted that duty so as to permit his Department of Justice to prosecute for espionage both a sailor when he took a selfie inside a nuclear submarine and sent it to his girlfriend and a Marine lieutenant who correctly warned his superiors about an al-Qaida operative masquerading as an Afghan cop in an American encampment but mistakenly used his Gmail account to send the emergency warning.<br /><br /> The evidence of Clinton's failure to safeguard state secrets is overwhelming because of the regularity of its occurrence. The evidence is well-grounded, as some of the secrets were too grave for the FBI to review and all came from her own server. And the evidence is sufficient to indict and to convict because it was obtained legally and shows a four-year pattern of regular, consistent, systematic violation of the laws requiring safeguarding.<br /><br /> Obama's suggestion that some secrets were not really secret is also irrelevant, because Clinton, like the president, swore to recognize secrets and to keep them secret, no matter her opinion of them.<br /><br /> The FBI knows this and is taking it far more seriously than the president or Clinton.<br /><br /> Just last week, the team investigating Clinton sought and received the extradition to the U.S. of a man who was imprisoned in Romania for computer hacking. One of those he hacked is Clinton's confidant Sid Blumenthal, to whom she sent many emails containing state secrets. What will the hacker tell the feds he saw?<br /><br /> Clinton's surrogates began taking her legal plight seriously in the past few weeks by arguing that her behavior was no different from that of other former high-ranking executive branch officials who occasionally and accidentally took top-secret documents home or discussed top-secret information in non-secure emails and that the consequences for them were tepid or nonexistent.<br /><br /> Yet there is no comparison between these occasional lapses and the planned and paid-for four-year diversion of secrets that Clinton orchestrated. Moreover, there is no instance of unprosecuted behavior that her supporters can cite that involves the sheer volume and regularity of the failure to safeguard that we see here.<br /><br /> Though the government need not prove intent, there is substantial evidence of Clinton's intent to commit espionage from three sources. One is Clinton's email instructing an aide to remove the "secret" designation from a document and send it to her from one non-secure fax machine to another. The second is the Blumenthal hacking incidents, which occurred during her tenure as secretary of state and which did not stop her from emailing him from her home server. The third is a federal rule that permits the inference of intent from a pattern of bad behavior, of which there is ample evidence in this case.<br /><br /> On the same weekend that the president was damning Clinton with faint praise and cynically offering what he must have known were irrelevant legal defenses, Clinton continued her pattern of persistent public laughing about and dismissing the significance of the FBI investigation of her.<br /><br /> That attitude -- which is recorded and documented by the FBI -- must have caused many of those investigating her to conclude that she understands the predicament she is in but is minimizing it. Or she may be a congenital liar who is lying to herself. Either way, they await with eager anticipation their interrogation of her, should she foolishly submit to one.</p>Judge Andrew P. Napolltano2016-04-14T07:00:00ZWhat if the Minimum Wage Increase Is a Fraud?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-if-the-Minimum-Wage-Increase-Is-a-Fraud/607262691238238604.html2016-04-07T07:00:00Z2016-04-07T07:00:00Z<p>What if the latest craze among the big-government crowd in both major political parties is to use the power of government to force employers to pay some of their employees more than their services are worth to the employers?<br /><br /> What if this represents an intrusion by government into the employer-employee relationship? What if this consists of the government's effectively saying that it knows the financial worth of employees' services better than the employers and the employees do?<br /><br /> What if the minimum wage, now on the verge of being raised to $15 per hour everywhere in the land, is really the government's using threats of ruin and force to transfer wealth? What if the $15-per-hour figure is based on a political compromise rather than on free market forces or economic realities?<br /><br /> What if these wealth transfers will have profound unintended economic consequences and will negatively affect everyone?<br /><br /> What if one of the politically intended consequences is that the employees whose salaries will rise will show gratitude not to their employers, who will be paying them more than they earn, by working better but to the politicians who will have forced the employers to pay them more by voting for those politicians?<br /><br /> What if the right of an employee to sell labor by going to work and the right of an employer to purchase that labor by paying a salary are part of the natural right to exchange goods and services, which the Constitution was written to protect? What if during America's most prosperous periods, that right was protected by the courts?<br /><br /> What if there are clauses in the Constitution that protect that right but the modern courts have ignored them? What if the Constitution prohibits the government from interfering with freely entered-into contracts but the government does so anyway? What if the courts have approved this?<br /><br /> What if the Constitution prohibits the government from taking property from people without charging them with wrongdoing and proving the charge to a jury but the government does so anyway? What if the courts have declined to interfere with all this theft?<br /><br /> What if it is none of the government's business how an employer and an employee decide on salary? What if the employer and the employee know far more about the worth of the employee's services and the needs of the employer than the politicians in the government do?<br /><br /> What if the government has fundamental misunderstandings of the way businesses earn money, create wealth and pay salaries? What if the government's mindset is stuck on the governmental economic model?<br /><br /> What if that model has no competition, guaranteed revenue and no creation of wealth?<br /><br /> What if that governmental mindset is one of control and central planning rather than appealing to the needs of consumers by providing goods and services better, faster and more cheaply than the competition?<br /><br /> What if the government has no need to be better, faster and cheaper because taxpayers are forced to pay it for services they often don't use and the government has no competition?<br /><br /> What if forcing employers to pay employees more than their services are worth results in higher prices for the goods and services the employers produce? What if the effect of the minimum wage rise is to transfer wealth not from employers to employees but from consumers to employees? What if the rising prices of goods and services, caused by the forced increase in wages, put some of those goods and services beyond the reach of some folks who rely upon them?<br /><br /> What if the folks who can no longer afford some goods and services on which they have come to rely are the very same people whom the politicians have boasted they are helping by the increase in the minimum wage? What if the politicians who have done this do not know what they are talking about? What if they believe they can use minimum wage increases to bribe the poor for votes -- just as they bribe the wealthy with bailouts and the middle class with tax cuts?<br /><br /> What if there are other unintended consequences to the governmental imposition of a minimum wage? <br /><br />What if, rather than pay employees more than they are worth, employers stop employing some of them? <br /><br />What if this results in higher unemployment? What if the rise in the minimum wage has the unintended consequence of harming the folks it is supposed to help?<br /><br /> What if the poor are better off being gainfully employed and earning less than $15 an hour, with an opportunity for advancement, than not working, earning nothing and relying on welfare? What if that welfare burden adds to already overtaxed state budgets?<br /><br /> What if states raise taxes to care for the newly unemployed? What if the newly unemployed lose the self-esteem they once enjoyed when they were gainfully employed?<br /><br /> What if all this came about not because of market forces, such as supply and demand, and not because people worked harder and produced more but because of lawless, greedy politicians -- heedless of basic economics -- who think they can write any law, regulate any behavior and tax any event without adverse consequences?<br /><br /> What if the politicians who caused this did so just to win the votes of those they promised to help? What if these politicians only helped themselves? What if the minimum wage increase is a fraud? What do we do about it?</p>Judge Andrew P. Napolltano2016-04-07T07:00:00ZThe Clinton Investigation Enters a Dangerous PhaseJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Clinton-Investigation-Enters-a-Dangerous-Phase/-528715197489190472.html2016-03-31T16:28:00Z2016-03-31T16:28:00Z<p>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.<br /><br /> 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.<br /><br /> 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.<br /><br /> 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.<br /><br /> Here is what he told the feds.<br /><br /> Pagliano has explained to federal prosecutors the who, what, when, how and why he migrated an open State Department email stream and a secret State Department email stream from government computers to Clinton's secret server in her home in Chappaqua, New York. He has told them that Clinton paid him $5,000 to commit that likely criminal activity.<br /><br /> He has also told some of the 147 FBI agents assigned to this case that Clinton herself was repeatedly told by her own State Department information technology experts and their colleagues at the National Security Agency that her persistent use of her off-the-shelf BlackBerry was neither an effective nor an acceptable means of receiving, transmitting or safeguarding state secrets. Little did they know how reckless she was with government secrets, as none was apparently then aware of her use of her non-secure secret server in Chappaqua for all of her email uses.<br /><br /> We know that the acquisition and corroboration phase of the investigation has been completed because the prosecutors have begun to ask Clinton's top aides during her time as secretary of state to come in for interviews. This is a delicate and dangerous phase for the aides, all of whom have engaged counsel to represent them.<br /><br /> Here are the dangers.<br /><br /> The Department of Justice will not reveal to the aides or their lawyers what it knows about the case or what evidence of criminal wrongdoing, if any, it has acquired on each of them. Hence, if they submit to an FBI interview, they will go in "blind." By going in blind, the aides run the risk of getting caught in a "perjury trap." Though not under oath, they could be trapped into lying by astute prosecutors and aggressive FBI agents, as it is a crime -- the equivalent of perjury -- to lie to them or materially mislead them.<br /><br /> For this reason, most white-collar criminal defense lawyers will not permit their clients to be interviewed by any prosecutors or FBI agents. Martha Stewart's lawyers failed to give her that advice, and she went to prison for one lie told in one conversation with one FBI agent.<br /><br /> After interviewing any Clinton aides who choose to be interviewed, the DOJ personnel on the case will move their investigation into its final phase, in which they will ask Clinton herself whether she wishes to speak with them. The prosecutors will basically tell her lawyers that they have evidence of the criminal behavior of their client and that before they present it to a grand jury, they want to afford Clinton an opportunity blindly to challenge it.<br /><br /> This will be a moment she must devoutly wish would pass from her, as she will face a damned-if-you-do, damned-if-you-don't dilemma.<br /><br /> Here is her dilemma.<br /><br /> If she were to talk to federal prosecutors and FBI agents, they would catch her in many inconsistencies, as she has spoken with great deception in public about this case. She has, for example, stated many times that she used the private server so she could have one mobile device for all of her emails. The FBI knows she had four mobile devices. She has also falsely claimed publicly and under oath that she neither sent nor received anything "marked classified." The FBI knows that nothing is marked classified, and its agents also know that her unprotected secret server transmitted some of the nation's gravest secrets.<br /><br /> The prosecutors and agents cannot be happy about her public lies and her repeated demeaning attitude about their investigation, and they would have an understandable animus toward her if she were to meet with them.<br /><br /> If she were to decline to be interviewed -- a prudent legal but treacherous political decision -- the feds would leak her rejection of their invitation, and political turmoil would break loose because one of her most imprudent and often repeated public statements in this case has been that she can't wait to talk to the FBI. That's a lie, and the FBI knows it.<br /><br /> Some Democrats who now understand the gravity of the case against Clinton have taken to arguing lately that the feds should establish a different and higher bar -- a novel and unknown requirement for a greater quantum of evidence and proof of a heavier degree of harm -- before Clinton can be prosecuted. They have suggested this merely because she is the likely Democratic presidential nominee.<br /><br /> The public will never stand for that. America has a bedrock commitment to the rule of law. The rule of law means that no one is beneath the law's protections or above its requirements. The DOJ is not in the business of rewriting the law, but the Democrats should get in the business of rethinking Clinton's status as their presumptive presidential nominee, lest a summer catastrophe come their way.</p>Judge Andrew P. Napolltano2016-03-31T16:28:00ZHope for the DeadJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hope-for-the-Dead/-542732797045362150.html2016-03-24T18:54:00Z2016-03-24T18:54:00Z<p>What is the connection between personal freedom and rising from the dead?<br /><br /> When America was in its infancy and struggling to find a culture and frustrated at governance from Great Britain, the word most frequently uttered in speeches and pamphlets and editorials was not "safety" or "taxes" or "peace"; it was "freedom." Two acts of Parliament broke the bonds with the mother country irreparably.<br /><br /> The first was the Stamp Act, which was enforced by British soldiers who used general search warrants issued by a secret court in London to rummage through the personal possessions of any colonists they chose, ostensibly looking to see whether they had purchased the government's stamps.<br /><br /> A general search warrant, as the Foreign Intelligence Surveillance Act court issues in America today, did not specifically describe the person or place to be searched -- which our Constitution now requires. Rather, these warrants were authority for the bearer to search wherever he pleased and seize whatever he wanted -- and it remains so today despite what the Constitution says.<br /><br /> The second intolerable act in the Colonial era was the imposition of a tax to pay for the Church of England, which all adult male property-owning colonists were forced to pay, no matter their religious beliefs.<br /><br /> The Stamp Act assaulted the right to be left alone in the home, and the Church of England tax assaulted the freedom to retain one's earnings and to choose to support one's own means of worship. These two laws caused many colonists to realize they needed to secede from Britain and form their own country, in which freedom would be protected by the government, not assaulted by it.<br /><br /> Today the loss of freedom comes in many forms.<br /><br /> Sometimes it is direct and profound, as when Congress acts like a general legislature that can right any wrong, regulate any activity and tax any event; and the courts permit it to do so. Sometimes it is subtler -- for example, when the government prints money to pay its bills and, as a result, all the money and assets we already have lose much of their value.<br /><br /> Sometimes the government steals freedom without our knowing it, such as when the National Security Agency reads our email and text messages and listens to our phone calls without a proper search warrant.<br /><br /> Freedom is the ability of every person to exercise personal free will without a government permission slip. <br /><br />Free will is a characteristic we share in common with God. He created us in His image and likeness. As He is perfectly free, so are we.<br /><br /> When the government takes away our free will, the government steals a gift from God; it violates the natural law; it prevents us from having and utilizing the means to seek the truth. The exercise of free will to seek the truth is a natural right that all humans possess, and the government may only morally interfere with that exercise when one has been convicted of using fraud or force to interfere with the exercise of someone else's natural rights.<br /><br /> We know from events 2,000 years ago, which Christians commemorate and celebrate this week, that freedom is the essential means to discover and unite with the truth. To Christians, the personification, the incarnation and the perfect manifestation of truth is Jesus -- who is the Christ, the Son of God and the Son of the Blessed Virgin Mary.<br /><br /> On the first Holy Thursday, Jesus attended a traditional Jewish Passover Seder. Catholics believe that at His last supper, Jesus performed two miracles so that we could stay united to Him. He transformed ordinary bread and wine into His own body, blood, soul and divinity, and He empowered His disciples and their successors to do the same.<br /><br /> On the first Good Friday, the government executed Jesus because it was convinced that by claiming to be the Son of God, He might foment a revolution against it. He did foment a revolution, but it was in the hearts of men and women. The Roman government had not heard of a revolution of the heart, so it condemned Him to death by crucifixion.<br /><br /> Jesus had the freedom to reject this horrific event, but He exercised His free will so that we might know the truth. The truth is that He would rise from the dead.<br /><br /> On Easter, three days after He died, that manifestation was completed when He did rise from the dead. By doing that, He demonstrated to us that while living, we can liberate our souls from the slavery of sin and our free will from the oppression of the government; and after death, we can rise to be with Him.<br /><br /> Easter -- which manifests our own immortality -- is the linchpin of human existence. With it, life is worth living, no matter its costs or pains. Without it, life is meaningless, no matter its fleeting joys or triumphs. <br /><br />Easter has a meaning that is both incomprehensible and simple. It is incomprehensible that a human being had the freedom to rise from the dead. It is simple because that human being was and is God.<br /><br /> Jesus is the hypostatic union -- not half God and half man and not just a godly good man but truly and fully God and, at the same time, truly and fully man. When the Roman government killed the man Jesus, it killed God. When the man Jesus rose from His tomb, God rose from the dead.<br /><br /> What does Easter mean? Easter means that there's hope for the dead. If there's hope for the dead, there's hope for the living. But like the colonists who fought the oppression of the king, we the living can only achieve our hopes if we have freedom. And that requires a government that protects freedom, not one that assaults it.<br /><br /> Happy Easter.</p>Judge Andrew P. Napolltano2016-03-24T18:54:00ZThe Heckler's VetoJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Hecklers-Veto/789184601866292457.html2016-03-17T16:37:00Z2016-03-17T16:37:00Z<p>On Feb. 7, 1946, Arthur Terminiello, a Roman Catholic priest who was a fierce opponent of communism and believed that President Harry Truman was too comfortable with it, gave an incendiary speech in a Chicago hall that his sponsors had rented.<br /><br /> The hall held about 800 people, but nearly 2,400 showed up. Father Terminiello's opponents outnumbered his supporters by a 2-1 ratio. The atmosphere in the hall was electric, with almost everyone present taking sides for or against this priest -- all under the watchful eyes of Chicago police.<br /><br /> The speech delighted the priest's supporters and enraged his detractors. When it became apparent that violence might break out, the Chicago police approached Terminiello while he was speaking and asked him to stop and leave the building.<br /><br /> He refused to leave and resumed his speech. The police prediction soon came to pass. The fiery priest ignited the hatred of his adversaries, many of whom seemed to have come to that venue to silence him. The shouters hurled chairs, rushed the stage and attempted to attack him.<br /><br /> The police safely escorted Terminiello out of the hall and then, in the presence of the many rioters who by now had spilled out onto a public street, arrested him for inciting a riot. The charge was defined in Illinois in the mid-1940s so as to criminalize any behavior that intentionally arouses the public to anger or brings about public unrest.<br /><br /> The police did not arrest any of the rioters who smashed windows, destroyed the stage and assaulted the priest. They saw him arrested for his words that they hated.<br /><br /> Terminiello was tried and convicted. After his conviction had been upheld by the Illinois Supreme Court, he appealed to the U.S. Supreme Court, which reversed his conviction. In so doing, the high court saved the First Amendment from authoritarian impulses that sought to narrow its scope, and it ushered in the modern judicial understanding that has informed the present-day parameters of the freedom of speech.<br /><br /> The ruling generally barred the punishment of speakers who are expressing political opinions and held that the First Amendment needs breathing room; and breathing room contemplates that some people will hate what they hear and articulate that hatred.<br /><br /> The court warned the police against permitting audiences to silence speakers -- what lawyers and judges call "the heckler's veto." Thus, the police today cannot throw up their hands and permit a speaker to be silenced as they did to Father Terminiello. They have an affirmative obligation to take all reasonable steps to protect the speaker's right to speak, the audience's right to hear and the protesters' right to protest.<br /><br /> Fast-forward to last Saturday, also in Chicago, when Donald Trump canceled a rally and said he did so because he feared that protesters would disrupt it and some folks might be injured. Was this an example of the heckler's veto?<br /><br /> The legal issues here are complex and subtle, involving property rights and free speech. As a lessee of a government-owned building for his rally venue, Trump could not prevent any person from entering or remaining because of the person's political views.<br /><br /> However, he could have asked the police to employ reasonable force to remove those whose behavior made it impossible for him to use the venue for the principal purpose for which he leased it. Since the First Amendment requires breathing room, the police must be extremely tolerant of protesters and may remove only those whose behavior physically prevents the use for which the venue was leased.<br /><br /> Stated differently, protest of political speech is itself protected speech, but protest cannot be so forceful or dominant that it vetoes the speaker.<br /><br /> What about the allegations that Trump himself is responsible for the violence at some of his rallies? If Trump publicly demands violence and there is no time or ability for any speech to neutralize his demands and the demanded violence takes place, his speech is unprotected -- and he can be prosecuted for incitement to riot. This is the modern rule that holds that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut or neutralize it.<br /><br /> When there is no time between the demand for violence and the responsive reactive violence, the speaker is liable for the violence he demanded. But if there is time for more speech to counsel against the violence, even if no neutralizing speech is actually uttered, the speaker cannot be prosecuted. And before any prosecution for speech may commence, the court must eliminate every possible lawful interpretation of the speaker's words.<br /><br /> All these rules further the whole purpose of the First Amendment. It is to recognize, codify and protect the natural human right to form thought and to express the thoughts, and to encourage open, wide, robust, challenging speech about the government, uttered without a permission slip, free from government interference and without personal hesitation.<br /><br /> In the case of the canceled Trump rally last weekend, many fingers have been pointed. The Chicago police claim they never advised Trump to cancel. The Secret Service claims the same. Trump says he was the victim of ideologically driven fanatics who wanted to silence him, just as their predecessors did to Father Terminiello. If there is ever litigation over this, a jury will decide the facts.<br /><br /> But the law is clear. The First Amendment tolerates the maximum possible public discourse, disagreement and confrontations; and it commands the government to protect the values it embodies.</p>Judge Andrew P. Napolltano2016-03-17T16:37:00ZWhat if the FBI Is Onto Hillary Clinton?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-if-the-FBI-Is-Onto-Hillary-Clinton/-1416501235514333.html2016-03-10T08:00:00Z2016-03-10T08:00:00Z<p class="p1"><span class="s1">What if Hillary Clinton is in legal hot water and she knows it but won't admit it? What if she has decided to go on the offensive and make her case that she did nothing unlawful with her emails that contained state secrets?</span></p>
<p class="p1"><span class="s1">What if the essence of her defense is that other secretaries of state used non-secure email devices and thus it was lawful for her to do so, as well as the point that none of her emails was "marked classified" at the time she sent or received them? What if these defenses do not hold up to even cursory examination?</span></p>
<p class="p1"><span class="s1">What if the other secretaries of state to whom she refers are Colin Powell and Condoleezza Rice? What if neither of them diverted all of their emails to a private server? What if neither of them sent or received state secrets -- secrets that under the law of the land are marked "confidential," "secret" or "top secret," not "classified" -- using a non-secure email account?</span></p>
<p class="p1"><span class="s1">What if neither of them hired an information technology expert and paid him to divert both a standard State Department email stream and a secret State Department email stream to a private server in one of their homes?</span></p>
<p class="p1"><span class="s1">What if neither Powell nor Rice is currently running for president? What if neither Powell nor Rice has had his or her behavior as secretary of state referred to the FBI for a criminal investigation by the inspector general of the State Department?</span></p>
<p class="p1"><span class="s1">What if the law of the land is that a document or email contains state secrets by virtue of the information or data in the document or email and not by virtue of any warning label? What if the legal definition of a "state secret" in the U.S. is "information the revelation of which could cause harm to the security of the United States"?</span></p>
<p class="p1"><span class="s1">What if it is the law of the land that people in the government to whom state secrets are entrusted are required to recognize the secrets when they see them and protect them from intentional or inadvertent revelation?</span></p>
<p class="p1"><span class="s1">What if it is the law of the land that everyone in the government to whom state secrets are entrusted receives a multi-hour tutorial from the FBI on how to protect state secrets? What if the successful completion of that tutorial is a legal prerequisite to the receipt of a national security clearance and thus the receipt of state secrets?</span></p>
<p class="p1"><span class="s1">What if that tutorial reminds the people to whom secrets are being reposed that it is their legal obligation to recognize and accept and understand the law before they can receive any state secrets? What if, in order to confirm that understanding, all people who receive the tutorial are required to sign an oath at the end of the tutorial recognizing, accepting and understanding the law and agreeing to be bound by it? What if Clinton signed just such an oath?</span></p>
<p class="p1"><span class="s1">What if Clinton had no intention of complying with the oath she signed at the time she signed it? What if we know that because we know she hired the information technologist to divert her emails the same week she received the FBI tutorial? What if she never told the FBI that she planned to divert all her emails -- including those that would contain state secrets -- to a private non-secure email server in her home?</span></p>
<p class="p1"><span class="s1">What if it is the law of the land that the failure to secure state secrets is a felony, known as espionage? What if it is the law of the land that espionage can be committed by a person who intends to expose state secrets or by a person who doesn't care if she exposes state secrets? What if the FBI explained to Clinton in her first day as secretary of state that the grossly negligent exposure of state secrets constitutes espionage?</span></p>
<p class="p1"><span class="s1">What if before Clinton was secretary of state, she was a U.S. senator from New York for eight years? What if during that time, she was a member of the Senate Armed Services Committee? What if during her time in the Senate, she was exposed to hundreds of military-related state secrets?</span></p>
<p class="p1"><span class="s1">What if Clinton is smart enough and shrewd enough and experienced enough to recognize a state secret when she sees one?</span></p>
<p class="p1"><span class="s1">What if the FBI has seen emails in which Clinton ordered subordinates deliberately to avoid State Department secure channels of communications and to send state secrets to her through channels she knew were not secure? What if Clinton passed on state secrets to others who had no security clearances? What if she did so knowing she was sending state secrets from her non-secure server to other non-secure servers?</span></p>
<p class="p1"><span class="s1">What if Clinton sent or received more than 2,000 emails that contained state secrets? What if she authored more than 100 of them herself? What if some of the 2,000 emails were so secret that the FBI agents investigating her lack the security clearances to view those emails?</span></p>
<p class="p1"><span class="s1">What if Clinton did all this so that she could keep her behavior as secretary of state secret and away from all officials in the State Department outside her inner circle, away from the president and away from the American people? What if she orchestrated and carried out a conspiracy to violate the Espionage Act?</span></p>
<p class="p1"><span class="s1">What if the FBI is onto her? What if the Democrats are not?</span></p>Judge Andrew P. Napolltano2016-03-10T08:00:00ZWhat If There Is No Difference?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-If-There-Is-No-Difference/-931534200853781486.html2016-02-11T08:00:00Z2016-02-11T08:00:00Z<p>What if all the remaining presidential candidates really want the same things? What if they all offer essentially the same ideas couched in different words? What if these primary races have become beauty pageants largely based on personality and advertising? <br /><br /> What if our system of governance is so deep into the fabric of big government in the second decade of the 21st century that all the presidential candidates really believe that most voters actually want the government to care for them?<br /><br /> What if all major candidates in both major political parties promise a federal government that can right any wrong, regulate any behavior, tax any event, solve any problem and borrow unlimited amounts of money? <br /><br /> What if the federal government is broke? What if it is politically committed to spending more money than it collects in revenue? What if all the candidates believe in borrowing money today and again borrowing money next year to pay off today's debts? What if rolling over federal debt never pays off or even pays down the principal?<br /><br /> What if none of the candidates cares about increasing the inflationary pressures and tax burdens on generations of Americans as yet unborn? What if they all want to spend hundreds of billions of dollars a year more than is collected in revenue? What if they all refuse to address the issue of how to pay back responsibly all the borrowed money from the past 100 years? <br /><br /> What if today we are the victims of this borrowing and spending mentality begun by President Woodrow Wilson and followed by nearly all of his successors up to President Obama? What if all the candidates in the presidential primaries plan to continue this self-destructive process?<br /><br /> What if the modern federal government has never paid back a loan in full without using borrowed money, and none of the candidates running for president cares about that, and all have indicated that they would continue to do the same? What if, as of today, nearly 20 cents of every dollar collected in revenue must legally be paid to lenders to the federal government as interest on their loans? What if American military leaders have argued that the government's debt is a greater threat to national security than is ISIS? <br /><br /> What if, when these candidates talk about curing cancer or eradicating the heroin epidemic or providing clean water, they are doing so to tug at your heartstrings? What if they are all mimicking President Obama's politically successful demonstrations of empathy? What if these issues -- genuine problems in contemporary America -- are not federal problems because they do not spring from areas of governance delegated by the Constitution to the federal government? What if health, safety, welfare and morality are the core of the states' responsibilities and not the federal government's? <br /><br /> What if all these candidates don't care about the Constitution and its guarantees of personal freedom, its checks and balances, and its division of governmental powers, even though, before entering office, they will be required to take a solemn oath to preserve, protect and defend the Constitution?<br /><br /> What if the candidates all want to rearrange borders of countries in the Middle East using the American military? What if they all think they can use the blood of young Americans to force democratic governmental structures upon foreign peoples whose cultures have rejected repeatedly the concepts of majority rule, due process and natural rights over the course of a thousand years of religious civil wars? What if the candidates all fail to see that the more innocents we kill abroad, the more we use force to tell others how to live, the more harm comes to us -- to our people, to our culture and to our freedoms?<br /><br /> What if all the candidates for president favor the government using torture, detaining persons without trial, continuous surveillance of all the telephone calls, emails, and text messages of all persons in America -- even though these behaviors are profoundly unconstitutional, morally un-American, uniquely destructive of personal liberty in a free society and fail to enhance public safety?<br /><br /> What if all these candidates -- in differing degrees -- reject the concept of limited government? What if they all want to bribe the rich with bailouts and the middle class with tax breaks and the poor with welfare? What if these candidates and their supporters and their attitudes about the role of government in our lives have reduced government at this sad time in our history to a game whereby everyone tries to live at someone else's expense?<br /><br /> What if none of the candidates recognizes that government is an artificial creation based on force and ought to be exercised minimally? What if none of them understands that prosperity comes from the free choices of investors, workers and consumers, and not from the decisions of the federal government's central planners? <br /><br /> What if none of these current candidates acknowledges that individuals are sovereign, our rights are inalienable, our property belongs to us, our souls are immortal, and that the government works for us -- not the other way around?<br /><br /> What ever happened to the right to be left alone? Where is a candidate who will defend it? What are lovers of liberty to do?</p>Judge Andrew P. Napolltano2016-02-11T08:00:00ZTwo Smoking GunsJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Two-Smoking-Guns/149867540696493778.html2016-01-14T08:00:00Z2016-01-14T08:00:00Z<p>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.<br /><br /> 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.<br /><br /> 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.<br /><br /> 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.<br /><br /> In the cases of others, those threats have been carried out. The Obama Department of Justice prosecuted a young sailor for espionage for sending a selfie to his girlfriend, because in the background of the photo was a view of a sonar screen on a submarine. It prosecuted a heroic Marine for espionage for warning his superiors of the presence of an al-Qaida operative in police garb inside an American encampment in Afghanistan, because he used a Gmail account to send the warning.<br /><br /> It also prosecuted Gen. David Petraeus for espionage for keeping secret and top-secret documents in an unlocked drawer in his desk inside his guarded home. It alleged that he shared those secrets with a friend who also had a security clearance, but it dropped those charges.<br /><br /> The obligation of those to whom state secrets have been entrusted to safeguard them is a rare area in which federal criminal prosecutions can be based on the defendant's negligence. Stated differently, to prosecute Clinton for espionage, the government need not prove that she intended to expose the secrets.<br /><br /> The evidence of Clinton's negligence is overwhelming. The FBI now has more than 1,300 protected emails that she received on her insecure server and sent to others -- some to their insecure servers. These emails contained confidential, secret or top-secret information, the negligent exposure of which is a criminal act.<br /><br /> One of the top-secret emails she received and forwarded contained a photo taken from an American satellite of the North Korean nuclear facility that detonated a device just last week. Because Clinton failed to safeguard that email, she exposed to hackers and thus to the North Koreans the time, place and manner of American surveillance of them. This type of data is in the highest category of protected secrets.<br /><br /> Last weekend, the State Department released two smoking guns -- each an email from Clinton to a State Department subordinate. One instructed a subordinate who was having difficulty getting a document to Clinton that she had not seen by using a secure State Department fax machine to use an insecure fax machine. The other instructed another subordinate to remove the "confidential" or "secret" designation from a document Clinton had not seen before sending it to her. These two emails show a pattern of behavior utterly heedless of the profound responsibilities of the secretary of state, repugnant to her sworn agreement to safeguard state secrets, and criminal at their essence.<br /><br /> Also this past weekend, my Fox News colleagues Katherine Herridge and Pamela Browne learned from government sources that the FBI is investigating whether Clinton made any decisions as secretary of state to benefit her family foundation or her husband's speaking engagements. If so, this would be profound public corruption.<br /><br /> This investigation was probably provoked by several teams of independent researchers -- some of whom are financial experts and have published their work -- who have been investigating the Clinton Foundation for a few years. They have amassed a treasure-trove of documents demonstrating fraud and irregularities in fundraising and expenditures, and they have shown a pattern of favorable State Department treatment of foreign entities coinciding with donations by those entities to the Clinton Foundation and their engaging former President Bill Clinton to give speeches.<br /><br /> There are now more than 100 FBI agents investigating Hillary Clinton. Her denial that she is at the core of their work is political claptrap with no connection to reality. It is inconceivable that the FBI would send such vast resources in the present dangerous era on a wild-goose chase.<br /><br /> It is the consensus of many of us who monitor government behavior that the FBI will recommend indictment. That recommendation will go to Attorney General Loretta Lynch, who, given Clinton's former status in the government and current status in the Democratic Party, will no doubt consult the White House.<br /><br /> If a federal grand jury were to indict Clinton for espionage or corruption, that would be fatal to her political career.<br /><br /> If the FBI recommends indictment and the attorney general declines to do so, expect Saturday Night Massacre-like leaks of draft indictments, whistleblower revelations and litigation, and FBI resignations, led by the fiercely independent and intellectually honest FBI Director James Comey himself.<br /><br /> That would be fatal to Clinton's political career, as well.</p>Judge Andrew P. Napolltano2016-01-14T08:00:00ZThe Constitution, the President and GunsJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Constitution-the-President-and-Guns/-609303930194063386.html2016-01-07T08:00:00Z2016-01-07T08:00:00Z<p>"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<br /><br /> 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 right to keep and bear arms as a pre-political right.<br /><br /> 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.<br /><br /> 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.<br /><br /> 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.<br /><br /> 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.<br /><br /> Earlier this week, President Barack Obama announced that he will sign executive orders that expand the size and scope of federal monitoring of the acquisition and use of guns -- traditionally a matter left to the states -- and he will interpret the laws in novel ways, establish rules and impose obligations that Congress rejected, and prosecute those who defy his new system.<br /><br /> The president has very little room to issue executive orders on guns because the congressional legislation in this area is so extensive, detailed and clear. In addition to ordering your doctor to report to the Department of Homeland Security any mention you may make to the doctor of guns in your home, the president has decreed on his own and against the articulated will of Congress the obligation of all people who transfer any gun to any other person to obtain a federal gun dealer license. This is among the most cumbersome and burdensome licenses to obtain.<br /><br /> He has also decreed that any licensee who fails to perform a background check on the person to whom the licensee has transferred a gun shall be guilty of a felony. Give a BB gun to your nephew on his 16th birthday without a federal license and you can go to prison.<br /><br /> Can the president do that? In a word: No.<br /><br /> Under our system of government, only Congress can write federal laws and establish crimes. The president is on particularly thin constitutional ice here because his allies in Congress have proposed this very procedure as an amendment to existing law, and Congress has expressly rejected those proposals.<br /><br /> The president is without authority to negate the congressional will, and any attempt to do so will be invalidated by the courts. As well, by defining what an occasional seller is, beyond the congressional definition or the plain meaning of the words, the president is essentially interpreting the law, a job reserved for the courts.<br /><br /> By requiring physicians to report conversations with their patients about guns to the DHS, the president will be encouraging them to invade the physician-patient privilege; and I suspect that most doctors will ignore him.<br /><br /> Under the Constitution, fundamental liberties (speech, a free press, worship, self-defense, travel and privacy, to name a few) are accorded the highest protection from governmental intrusion. One can only lose a fundamental right by intentionally giving it up or via due process (a jury trial resulting in a conviction for criminal behavior). The president -- whose support for the right to keep and bear arms is limited to the military, the police and his own heavily armed body guards -- is happy to begin a slippery slope down into the dark hole of totalitarianism, whereby he or a future president can negate liberties if he hates or fears the exercising of them.<br /><br /> We still have a Constitution in America. Under the Constitution, Congress writes the laws, the president enforces them, and the courts interpret them. The president can no more write his own laws or impose his own interpretations upon pre-existing laws than Congress or the courts can command the military.<br /> As troubling as this turn of events is, it is not surprising. The president is a progressive, and the ideology of progressivism is anathema to self-help or individualism. He really believes that the government can care for us better than we can care for ourselves.<br /><br /> Yet he ignores recent history. Any attempt to make it more difficult for people to keep and bear arms not only violates the fundamental liberty of those people but also jeopardizes the safety of us all. Add to this the progressive tendency to use government to establish no-gun zones and you have the recipe for disaster we have recently witnessed. All of the recent mass killings in America -- from Columbine to San Bernardino -- have occurred in no-gun zones, where crazies and terror-minded murderers can shoot with abandon.<br /><br /> That is, until someone arrives with a gun and shoots back. Then the killer flees or is injured or dies -- and the killing stops.</p>Judge Andrew P. Napolltano2016-01-07T08:00:00ZOffice Pool 2016Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Office-Pool-2016/6271052015383995.html2015-12-31T08:00:00Z2015-12-31T08:00:00Z<p>1) The Republican nominee for president in 2016 will be<br /><br />a. Donald Trump by unanimous acclamation of the Republican National Convention.<br />b. Ted Cruz by unanimous acclamation of the convention.<br />c. Mitt Romney after a contested, bitter, brokered convention.<br />d. none of the above.<br /><br /> 2) The Democratic nominee for president in 2016 will be<br /><br />a. Hillary Clinton.<br />b. Bernie Sanders.<br />c. Al Gore after a contested, bitter, brokered Democratic National Convention.<br />d. not Hillary Clinton, because she will be indicted by a federal grand jury for various crimes.<br /><br /> 3) The voters will elect in a landslide<br /><br />a. whoever promises to give them the biggest piece of the federal pie.<br />b. whoever scares them the most.<br />c. whoever comes across as most faithful to the Constitution.<br />d. a sleeper candidate not yet on the scene.<br /><br /> 4) The 2016 Republican platform will promise<br /><br />a. to eradicate the Islamic State group by using ground troops and fighting an all-out war.<br />b. to replace Obamacare with a lighter, easier version of it.<br />c. to make abortion illegal, except for in cases of rape and incest.<br />d. to bring the troops home and let the Russians fight the Islamic State.<br /><br /> 5) The 2016 Democratic platform will promise<br /><br />a. a 2016 version of "a chicken in every pot and a car in every garage."<br />b. free health care for those who want it.<br />c. criminalizing hate speech.<br />d. all of the above.<br /><br /> 6) The Super Bowl will be won by<br /><br />a. the Carolina Panthers.<br />b. the New England Patriots, but only by cheating.<br />c. the New York Jets after the greatest comeback in NFL history.<br />d. none of the above.<br /><br /> 7) The World Series will be won by<br /><br />a. the New York Mets.<br />b. the San Francisco Giants.<br />c. the Boston Red Sox, but only after they acquire A-Rod from the Yankees.<br />d. none of the above.<br /><br /> 8) In 2016, climate change<br /><br />a. will be embraced by the Republican Party in a dramatic turnabout.<br />b. will be defined as an article of faith by Pope Francis.<br />c. will be exposed as a fraud.<br />d. will leave the public marketplace of ideas.<br /><br /> 9) The Supreme Court<br /><br />a. will invalidate all spying without a warrant based on individualized suspicion.<br />b. will invalidate race as a factor to be taken into account by government-owned schools.<br />c. will continue to expand First Amendment rights.<br />d. will finally invalidate Obamacare.<br /><br /> 10) Congress will<br /><br />a. continue to finance the federal government by borrowing money.<br />b. will let President Barack Obama declare war.<br />c. will impeach President Obama for refusing to enforce federal law.<br />d. do none of the above.<br /><br /> 11) Pope Francis will<br /><br />a. permit divorced and remarried Roman Catholics to receive the Blessed Sacrament.<br />b. forgive everyone's sins during the 2016 Year of Mercy.<br />c. remove the requirement for a miracle as a condition for declaring someone to be a saint.<br />d. resign and become a simple parish priest in Buenos Aires, Argentina.<br /><br /> 12) The Hollywood industry will<br /><br />a. offer movies directly to consumers.<br />b. suffer its most crippling actor strike in its history.<br />c. continue its leftward view of human existence.<br />d. leave California because of the drought.<br /><br /> 13) The highest taxes in the United States will be in<br /><br />a. New Jersey, where they are now.<br />b. New York City because Mayor Bill de Blasio will tax the rich at 50 percent of income.<br />c. in California.<br />d. none of the above.<br /><br /> 14) One year from today<br /><br />a. Hillary Clinton will be in prison.<br />b. Donald Trump will be selling pencils.<br />c. Chris Christie will have been in the Olympics.<br />d. the president-elect will be someone who did not participate in any 2015 presidential debates.<br /><br /> 15) One year from today<br /><br />a. the government will be able to take any property from you that it wants.<br />b. the Environmental Protection Agency will be able to regulate your use of a lawn mower and a rake.<br />c. the National Security Agency will still be able to capture your keystrokes on your computer in real time.<br />d. none of the above will be true.<br /><br /> 16) In 2016, President Obama will announce<br /><br />a. that he will become the president of the University of Chicago.<br />b. that he has lost his license to practice law.<br />c. that he and Michelle Obama will soon divorce.<br />d. that he was not born in the United States.<br /><br /> 17) In 2016<br /><br />a. Fox News Channel will surpass the broadcast networks in audience share.<br />b. Bill O'Reilly will run for public office and lose.<br />c. A-Rod will get sexual reassignment surgery.<br />d. Madonna will enter a convent.<br /><br /> 18) By the end of 2016<br /><br />a. the Islamic State will be dead and gone.<br />b. the Islamic State will have signed a peace treaty with the West.<br />c. Vladimir Putin will be out of office.<br />d. none of the above will have happened.<br /><br /> 19) One year from today<br /><br />a. gasoline will cost less than $1 a gallon.<br />b. a Big Mac will cost $10.<br />c. half the newspapers presently in the country will be out of business.<br />d. Apple will be producing an iPhone that it claims can contact dead relatives.<br /><br /> 20) Ultimately<br /><br />a. it is better to have loved and lost than never to have loved at all.<br />b. that government is best which governs least.<br />c. taxation is theft.<br />d. all of the above are true.<br /><br /> My choices: 1d, 2d, 3b, 4a, 5b, 6c, 7d, 8b, 9a, 10a, 11a, 12a, 13a, 14a, 15d, 16c, 17a, 18d, 19c, 20d.</p>Judge Andrew P. Napolltano2015-12-31T08:00:00ZAmerica at ChristmasJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/America-at-Christmas/747949637253719320.html2015-12-24T08:00:00Z2015-12-24T08:00:00Z<p>As if to promise a Christmas present, Congress has just finished approving the finances of the federal government for the next few months. Santa Claus would have done a better job. During early 2016, Congress will pay the government's bills by borrowing money from individual and institutional lenders. Those folks will lend the feds all the money the feds need because the law requires the feds to pay them back.<br /><br /> The "pay them back" ideology is a very curious one. It is true that the full faith and credit of the federal government guarantees the payment of the government's debts. Without that lawfully binding guarantee, who would lend money to an institution that carries a debt of $18.8 trillion? So the investors who have lent money to the feds know that their debts will be repaid in a timely manner.<br /><br /> Because the federal government spends $1.5 trillion more annually than it collects in taxes and other revenue and because its payments of interest alone on the money it has borrowed will soon be about $1 trillion a year, it can only repay its debts by borrowing more money.<br /><br /> Since 1911, the federal government has not repaid a debt from tax revenue. It has always borrowed more money to pay its lenders. This is known to economists as rolling over the debt.<br /><br /> President Woodrow Wilson -- who gave us a racially segregated military and federal civilian workforce, brought us into the horrific and useless World War I, arrested Americans for singing German beer hall songs in public, campaigned for the federal income tax by promising it would never exceed 3 percent of income, helped to create the cash-printing Federal Reserve, laid the groundwork for Prohibition, and kept Jim Crow going -- borrowed $30 billion to pay for World War I. That money was borrowed from investors and from the Federal Reserve, which in those days literally printed the cash that it lent.<br /><br /> The $30 billion that Wilson borrowed was repaid by the feds with borrowed dollars. And the folks who lent the feds those dollars were in turn repaid with borrowed dollars. That inflationary cycle has been repeated countless times since all this borrowing from Peter to pay Paul became the financing method of choice for the feds.<br /><br /> As a result of this, the federal government still owes the $30 billion that Wilson borrowed, but it owes it -- obviously -- to different lenders from those who originally financed the Great War. It has paid more than $15 billion in interest payments on that $30 billion.<br /><br /> Who could run a household or a business the way the feds have run the government in the past 100 years?<br /> As we approach a presidential election year, the federal financing-by-borrowing scheme is seen as a standard operating procedure by all the Democratic candidates and by all the Republicans, as well, except for Sen. Rand Paul. He and he alone among the major candidates would have the feds live within their means and stop the vicious circle that Wilson began.<br /><br /> He understands that government has limits. Those limits are written down in the Constitution. He recognizes, as his competitors do not, that the government simply cannot morally or constitutionally right any wrong, regulate any behavior, borrow any amount, or tax any event as long as it can politically get away with it. When it does, we end up with war and debt.<br /><br /> Whenever you hear a presidential candidate proclaiming that the first job of the president is to keep America safe, challenge that absurdity. Invite that candidate to read the Constitution, which lays out the jobs of the president -- the principal of which is to keep us free and safe. If a president keeps us safe but unfree, he is simply not doing his job. Only Sen. Paul has made that argument.<br /><br /> The world today is a sad place, and those who love freedom sometimes feel we are shoveling against the tide. But for just a moment, at this time of year, we should pause and remember an event that occurred about 2,000 years ago in the Middle East.<br /><br /> The world then was a far worse place, yet a light seared through the darkness. A baby was born in a cave. The Word was made flesh and dwelt among us. The baby came into the world so that we might have life and live it abundantly. The baby came into the world so that we would be set free from our own sins, free from the temptations of the world and free from the governments that seek to control us.<br /><br /> The baby was the Son of God and the Prince of Peace and the savior of the world. This week we celebrate His birthday.</p>Judge Andrew P. Napolltano2015-12-24T08:00:00ZMore Hillary ChroniclesJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/More-Hillary-Chronicles/-350142422764237164.html2015-12-17T08:00:00Z2015-12-17T08:00:00Z<p>While the country has been fixated on Donald Trump's tormenting his Republican primary opponents and deeply concerned about the government's efforts to identify any confederates in the San Bernardino, California killings, a team of federal prosecutors and FBI agents continues to examine Hillary Clinton's tenure as secretary of state in order to determine whether she committed any crimes and, if so, whether there is sufficient evidence to prove her guilt beyond a reasonable doubt.<br /><br /> What began as an innocent Freedom of Information Act request by Judicial Watch, a D.C.-based public advocacy group promoting transparency in the executive branch, has now become a full criminal investigation, with Clinton as the likely target.<br /><br /> The basic facts are well-known, but the revealed nuances are important, as well. When the State Department responded to the Judicial Watch FOIA request by telling Judicial Watch that it had no emails from Clinton, Judicial Watch filed a lawsuit. When the State Department made the same representation to the court -- as incredible as it seemed at the time -- the judge accepted that representation, and the case was dismissed.<br /><br /> Then The New York Times revealed that Clinton used a private email server instead of the government's server for all of her work-related and personal emails during her four years as secretary of state. After that, the Judicial Watch FOIA case was reinstated, and then the judge in the case demanded of State that it produce Clinton's emails.<br /><br /> When Judicial Watch expressed frustration to the judge about the pace at which it was getting emails, the judge ordered Clinton, "under penalty of perjury," to certify that she had surrendered all her governmental emails to the State Department.<br /><br /> Eventually, Clinton did certify to the court that she did surrender all of her governmental emails to the State Department. She did so by sending paper copies of selected emails, because she had wiped clean her server. She acknowledged that she decided which emails were personal and which were selected as governmental and returned the governmental ones to the State Department. She has denied steadfastly and consistently that she ever sent or received any materials marked "classified" while secretary of state using her private server.<br /><br /> All of her behavior has triggered the FBI investigation because she may have committed serious federal crimes. For example, it is a crime to steal federal property. What did she steal? By diverting to her own venue the digital metadata that accompany all emails -- metadata that, when attached to the work-related emails of a government employee, belong to the government -- she stole that data. The metadata do not appear on her paper copies -- hence the argument that she stole and destroyed the government-owned metadata.<br /><br /> This is particularly troublesome for her present political ambitions because of a federal statute that disqualifies from public office all who have stolen federal property. (She is probably already barred from public office -- though this was not prominently raised when she entered the U.S. Senate or the Department of State -- because of the china, silverware and furniture that she and her husband took from the White House in January 2001.)<br /><br /> Clinton may also have committed espionage by failing to secure the government secrets entrusted to her. She did that by diverting those secrets to an unprotected, nongovernmental venue -- her own server -- and again by emailing those secrets to other unprotected and nongovernmental venues. The reason she can deny sending or receiving anything marked "classified" is that protected government secrets are not marked "classified."<br /><br /> So her statement, though technically true, is highly misleading. The governmental designations of protected secrets are "confidential," "secret" and "top secret" -- not "classified." State Department investigators have found 999 emails sent or received by Clinton in at least one of those three categories of protected secrets.<br /><br /> Back when Clinton became secretary of state, on her first day in office, she had an hourlong FBI briefing on the proper and lawfully required care of government secrets. She signed a statement, under penalty of perjury, acknowledging that she knew the law and that it is the content of emails, not any stamped markings, that makes them secret.<br /><br /> Earlier this week, my Fox News colleagues confirmed the certain presence of top-secret materials among the 999 emails. Intelligence from foreign sources or about foreign governments is always top-secret, whether designated as such or not. And she knows that.<br /><br /> As well, she may have committed perjury in the FOIA case. When the House Select Committee on Benghazi, in its investigation of her role in the deaths of the U.S. ambassador to Libya and three other Americans, gathered emails, it found emails she did not surrender to the State Department.<br /><br /> Last week, the State Department released emails that give the FBI more areas to investigate. These emails may show a pattern of official behavior by Clinton designed to benefit the financial interests of her family's foundation, her husband and her son-in-law. Moreover, the FBI knows of a treasure-trove of documents that may demonstrate that the Clinton Foundation skirted the law and illegally raised and spent contributions.<br /><br /> Two months ago, a group of FBI agents sat around a conference table and reviewed the evidence gathered thus far. Each agent was given the opportunity to make or detract from the case for moving forward. At the end of the meeting, it was the consensus of the group to pursue a criminal investigation.<br /><br /> And Clinton is the likely target.</p>Judge Andrew P. Napolltano2015-12-17T08:00:00ZA Needle in a HaystackJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/A-Needle-in-a-Haystack/489637194914539932.html2015-12-10T08:00:00Z2015-12-10T08:00:00Z<p>If you were looking for a needle in a haystack, simple logic would tell you that the smaller the haystack the likelier you are to find the needle. Except for the government.<br /><br /> Since Edward Snowden revealed the federal government's unlawful and unconstitutional use of federal statutes to justify spying on all in America all the time, including the members of Congress who unwittingly wrote and passed the statutes, I have been arguing that the Fourth Amendment prohibits all domestic spying, except that which has been authorized by a search warrant issued by a judge. The same amendment also requires that warrants be issued only based on a serious level of individualized suspicion backed up by evidence -- called probable cause -- and the warrants must specifically identify the place and person to be spied upon.<br /><br /> Because these requirements are in the Constitution, which is the supreme law of the land, Congress and the president and the courts are bound by them. There is no emergency or public safety or wartime exception to them. These requirements cannot be changed by legislation; only a constitutional amendment, ratified by the legislatures of 37 states, can do so.<br /><br /> All of this is what lawyers and judges call black letter law -- meaning it is well-understood, has not been seriously challenged and is nearly universally accepted. Except by the government.<br /><br /> The government -- which thinks it can right any wrong, tax any event, regulate any behavior and interfere with any right -- also thinks it can keep us safe from the terrorists among us by cutting constitutional corners, which it has done many times since 9/11. Among the constitutional corners it has cut is unleashing its 60,000 domestic spies upon us with orders to disregard the constitutional requirements for spying on Americans and gather all the data about us that they can by listening to phone calls and reading emails, as well as gathering the banking information, credit card information, utility bills, postal mail and medical records of everyone in America, without regard to individualized suspicion.<br /><br /> The government's behavior is premised upon the false belief that it can morally and constitutionally interfere with our natural right to privacy without due process and upon the absurd belief that surrendering personal liberty somehow keeps us safe.<br /><br /> As we know from the tragedy last week in San Bernardino, California, the government's strategy and practices failed to keep us safe. The governmental failure at San Bernardino was the confluence of a state government with antipathy and animosity toward the natural right of self-defense and a federal government attempting to devour far more data than it can handle.<br /><br /> The San Bernardino killings -- like those in Newtown, Connecticut; at Virginia Tech; in Roseburg, Oregon; and in Paris -- occurred on or near government property where lawful guns were banned. These no-gun zones are the most dangerous places on the planet when a person armed to the teeth and determined to kill enters upon them.<br /><br /> In the no-gun zone in San Bernardino where the killings occurred, even off-duty or retired law enforcement personnel, trained and continually qualified in the use of firearms, and private people lawfully authorized to carry handguns are required to check their guns at the door.<br /><br /> Can the civilian use of guns keep us safe? Of course it can. The police simply cannot be everywhere. Anything that diminishes the shooting-fish-in-a-barrel environment of no-gun zones is an improvement over the carnage we have witnessed in them. Think about it. In every mass killing -- every one of them -- when someone with a gun arrives determined to stop the killing, it stops; the killer flees or is disabled or is killed or dies by suicide.<br /><br /> No-gun zones are not only unconstitutional legislative limitations on the natural right of people to use modern-day means for self-defense but also an invitation to disaster. And they are established by local municipalities with the consent of state governments.<br /><br /> The federal failure is born of an antipathy to constitutional norms and a reluctance to engage in meaningful human intelligence on the ground. Instead of gathering all they can about everyone, the feds should concentrate on those about whom there is some reasonable belief to warrant some investigation. The feds should know the neighborhoods where the suspicious live and work as well as they know their own computer screens.<br /><br /> Even the National Security Agency itself has admitted to data overload. In 2013, the director of the NSA at the time, Gen. Keith Alexander, was asked how many plots his spies had unearthed in their then-seven years of spying on everyone in the U.S., and he replied under oath, "About 54." Then he corrected himself and amended his answer to one or two. When asked to identify them, he declined.<br /><br /> Why weren't a recently married couple with Middle Eastern backgrounds -- one of whom had been born here, the other of whom had immigrated here and achieved permanent legal residence only through marriage, both of whom recently had been stockpiling huge amounts of military-style weaponry and ammunition, both of whom had just received more than half their combined annual income in a single wire transfer to their joint bank account, both of whom had been practicing the use of their hardware at a gun range, one of whom had been known to hate Jewish people and had suddenly left his local mosque -- generally known to the all-seeing and all-hearing NSA?<br /><br /> Because the NSA has abandoned traditional techniques of on-the-ground, in-your-face human intelligence in favor of sitting in front of computer screens. And that has produced a haystack of data so gigantic in size that by the time the needle of terror plotting has been found, it is often too late.</p>Judge Andrew P. Napolltano2015-12-10T08:00:00ZThe Spies Who Ruin UsJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Spies-Who-Ruin-Us/554149452973262579.html2015-12-03T08:00:00Z2015-12-03T08:00:00Z<p>In an effort to draw attention away from the intelligence failures that permitted the attacks of 9/11 and create the impression that it was doing something -- anything -- to avoid a repeat, the federal government tampered seriously with freedoms expressly guaranteed in the Constitution. Its principal target was the right to privacy, which is protected in the Fourth Amendment.<br /><br /> At President George W. Bush's urging, Congress passed the Patriot Act in October 2001. This 315-page statute passed the House of Representatives with no debate, and there was very limited debate in the Senate. I have asked many members of Congress over the years whether they read this bill before they voted upon it, and I have yet to find a member who did. In the House, that would have been impossible; the bill was made available to representatives only 15 minutes prior to their vote.<br /><br /> This law permits FBI agents to write their own search warrants for business records, and it has been used to induce the Foreign Intelligence Surveillance Court to issue warrants on a made-up basis to read emails and listen to telephone calls in real time. The members of Congress who voted for it were largely unaware of the liberties they were sacrificing.<br /><br /> The personal liberties that Congress surrendered have been a necessary bulwark against tyranny -- the constitutional requirement of warrants as a precondition to searching homes and records, with warrants based on probable cause and specifically describing the place to be searched and the person or thing to be seized.<br /><br /> When Edward Snowden revealed the nature and extent of the domestic spying that the government unleashed upon us post-9/11 and made us all aware of its use of the Patriot Act to do so, the authors of the Patriot Act expressed outrage and anger.<br /><br /> What was the government doing?<br /><br /> The government was secretly gathering data on all of us and using warrants that were not based on probable cause and that did not specifically describe the place to be searched or the person or thing to be seized. <br /><br />When members of Congress realized that they, too, were being spied upon, the outrage grew. That outrage and anger metastasized into a new law enacted earlier this year, called the USA Freedom Act, which took effect this week. That law, its supporters have argued, will tame the National Security Agency into constitutional compliance and keep its 60,000 agents and contractors out of our private affairs. In fact, it is now worse.<br /><br /> The new law permitted the expiration of Section 215 of the Patriot Act -- the section used by the NSA to justify its collection of undifferentiated bulk data about everyone. But it also requires the telecoms and Internet service providers to retain their records for five years, and it gives the NSA instant access to those records whenever it needs them.<br /><br /> How can the NSA get instant access to your emails and phone calls?<br /><br /> Quite easily. Both the Patriot Act and the USA Freedom Act unconstitutionally do away with the probable cause requirement for warrants. Those two laws permit the Foreign Intelligence Surveillance Court to issue warrants based on the standard of "governmental needs" rather than probable cause. This is a profoundly unconstitutional standard, and one that has resulted in spying on all people all the time.<br /><br /> In reality, "governmental needs" is no standard whatsoever, as the government will always claim that it needs what it wants. "Governmental needs" is the hateful standard that was used by the British government when it secretly obtained warrants to enter the homes of the colonists. This provoked the Revolution and produced the Fourth Amendment.<br /><br /> Though Section 215 of the Patriot Act has expired, the NSA's other authorities to spy have not. The propaganda that NSA computers have been shut down is false. Its computers are still in the telecom and Internet service providers' facilities and are operated by NSA agents remotely.<br /><br /> Nevertheless, Section 702 of the Foreign Intelligence Surveillance Act and an October 2001 executive order by President Bush are still valid, and both bypass the Constitution and continue to permit mass collection of bulk data. Section 702 permits warrantless surveillance on Americans who speak with foreigners, and the NSA has persuaded the FISA court to issue warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses everyone in the United States.<br /><br /> The Bush executive order was given to all military intelligence agencies -- of which the NSA is but one. It instructed the military to intercept the telephone calls of anyone in America it wishes, without seeking any warrants.<br /><br /> Does all this unconstitutional spying -- whether pursuant to the Patriot Act, the USA Freedom Act or an old presidential executive order -- keep us safe? It certainly does not keep our liberties safe. It produces too much material for the government to evaluate. The recent Paris killers communicated with one another using ordinary cellphones and emails. Yet the French government, whose legal authority to spy is broader than our government's, missed them. And the NSA, which spies on the French government, missed them.<br /><br /> The Fourth Amendment has numerous virtues, but foremost among them is a double-sided coin. One side is the requirement of individualized probable cause. When followed, that prevents the government from using general warrants (search wherever you want, and seize whatever you find), the hallmark of totalitarian governments. By confining the government's authority to search only to those cases about which it has suspicion, the other side of that coin forces the government to focus on the bad guys.<br /><br /> When it does that, the government will be far likelier to stop them than when it gathers all it can about everyone.</p>Judge Andrew P. Napolltano2015-12-03T08:00:00ZWhat to Be Thankful For?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-to-Be-Thankful-For/939546001855959212.html2015-11-26T08:00:00Z2015-11-26T08:00:00Z<p>What if the government's goal is to perpetuate itself? What if the real levers of governmental power are pulled by agents and diplomats and bureaucrats behind the scenes? What if they stay in power no matter who is elected president or which political party controls Congress?<br /><br /> What if the frequent public displays of adversity between the Republicans and the Democrats are just a facade and a charade? What if both major political parties agree on the transcendental issues of our day?<br /> What if the leadership of both major political parties believes that our rights are not natural to our humanity but instead gifts from the government? What if those leaders believe that the government that gives gifts to the people can take those gifts back?<br /><br /> What if the leadership of both parties gives only lip service to Thomas Jefferson's words in the Declaration of Independence that all people "are endowed by their Creator with certain unalienable Rights, (and) among these are Life, Liberty, and the Pursuit of Happiness" and that the purpose of government is to protect these rights? What if the leadership of both parties dismisses these ideas as just Jefferson's outdated musings? What if Jefferson's arguments have been enacted into the federal laws that all in government have sworn to uphold?<br /><br /> What if the leadership of the parties believes that the constitutional requirement of due process somehow permits mothers to kill the babies in their wombs out of fear or convenience? What if the leaders of both parties believe that the president should be able to kill whomever he wants out of fear because due process is an inconvenience?<br /><br /> What if President Barack Obama has killed Americans and claimed that he has done so legally, relying on the convenient arguments of his attorney general, who falsely told him his killings are consistent with due process? What if the Constitution requires due process whenever the government wants someone's life, liberty or property, whether convenient or not? What if due process means a fair jury trial, not an ordered killing?<br /><br /> What if the congressional leadership and most of the membership from both major political parties believe in perpetual war and perpetual debt? What if the history of American government in the past 100 years is proof of this nearly universal belief among the political class?<br /><br /> What if the political class in America believes that war is the health of the state? What if the leadership of that class wants war so as to induce the loyalty of the voters, open the pocketbooks of the taxpayers and cause compliance among the people? What if the political class uses war to enrich its benefactors? What if the government has been paying for war by increasing its debt?<br /><br /> What if the political class has been paying for prosperity by increasing the government's debt? What if that class has controlled the cash-creating computers at the Federal Reserve and the free cash the Fed creates is to bankers and traders what heroin is to addicts? What if the $18.6 trillion current federal government debt has largely been caused by borrowing to pay for war and false prosperity? What if 20 cents of every tax dollar collected by the feds today is spent on interest payments for the government's debt?<br /><br /> What if American taxpayers are still paying interest on debts incurred by Woodrow Wilson, FDR, JFK, LBJ, Ronald Reagan and every modern president?<br /><br /> What if the silent damage that the artificial creation of cash causes has been manifested not in price inflation but in equity and savings deflation? What if the manifestation of equity deflation is that too much of everything we own secures too much debt? What if the folks at the Fed who create the cash have kept interest rates so low that there is little incentive to save?<br /><br /> What if we all own a smaller percentage of what we think we own because the value of what we own has decreased as the debt on what we own has increased? What if the banks have borrowed the money that they lend? What if they can't pay it back? What if the stock market is soaring on borrowed money? What if mansions and shopping malls are popping up but they secure more debt than they are worth? What happens when the plug is pulled on this temporary artifice when those debts come due?<br /><br /> What if the government demands transparency from all of us but declines to be transparent to us? What if the government fosters the make-believe notion that it exists to serve us? What if the government denies that it works for us and thinks we work for it? What if it has access to all of our communications, bank accounts, health and legal records, and monthly utility and credit card bills? What if the government knows more about us than we know about it?<br /><br /> What if the government stays in power by bribery? What if it bribes the states with grants of cash, the rich with bailouts, the middle class with tax cuts and the poor with welfare? What if the courts have approved this bribery?<br /><br /> What if, on Thanksgiving Day, our gratitude is not to the government that assails our freedoms but to God, who gave us our freedoms? What if, on Thanksgiving Day, our gratitude is for life, liberty and the pursuit of happiness? What if we possess them despite the government?<br /><br /> What if, on Thanksgiving Day, we should be most grateful that we are free creatures made in God's image and likeness? What if we are free to reject the government?</p>Judge Andrew P. Napolltano2015-11-26T08:00:00ZParis and FreedomJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Paris-and-Freedom/-28711598623481991.html2015-11-18T08:00:00Z2015-11-18T08:00:00Z<p>The tragedy in Paris last Friday has regrettably been employed as a catalyst for renewed calls by governments in western Europe and even in the United States for more curtailment of personal liberties. Those who accept the trade of liberty for safety have argued in favor of less liberty. They want government to have more authority to intrude upon the daily lives of more innocent people. Their targets are the freedoms of speech and travel and the right to privacy. Their goal is public safety, but their thinking is flawed.<br /><br /> The clash between liberty and safety is as old as the republic itself. The United States was quite literally conceived in liberty. In the Declaration of Independence, Thomas Jefferson painstakingly listed the ills and evils of the British government's administration of the Colonies. There were no complaints about the absence of public safety; rather, Jefferson's "long train of abuses" cataloged the British government's interference with the colonists' personal liberties.<br /><br /> What has made the declaration so enduring and unique in world history is its unambiguous embrace of the natural law as its explanation of the origin of our rights. The British king thought he reigned by the will of God -- the so-called divine right of kings.<br /><br /> Jefferson, influenced by the British philosopher and political theorist John Locke, turned that belief on its head. He argued that our liberties are natural, even inalienable, because they stem from our humanity, which is a gift from God. How could the same God have given us natural, inalienable personal freedoms and also have given the king the natural right to interfere with those freedoms?<br /><br /> The declaration's answer is the profound rejection of the moral legitimacy of any government that lacks the consent of the governed, as well as its articulation of the Judeo-Christian ethic of valuing human life and its acceptance of the belief that humans possess inalienable rights "endowed by their Creator."<br /><br /> Notwithstanding the values of the Declaration of Independence, big government and petty tyranny reared their ugly heads almost at the start of the republic. In 1798, the same generation -- in some cases the same human beings -- that wrote in the First Amendment that "Congress shall make no law ... abridging the freedom of speech" also enacted the Alien and Sedition Acts, which punished speech critical of the government. Abraham Lincoln locked people up for speaking out against the Civil War. Woodrow Wilson locked people up for singing German beer hall songs during World War I. FDR locked people up just for being Japanese-Americans in World War II. All of this was later condemned by courts or Congresses -- and surely by enlightened public opinion.<br /><br /> It is in times of fear -- whether generated by outside forces or fomented by the government itself -- when we need to be most vigilant about our liberties. When people are afraid, it is human nature to accept the curtailment of liberties, whether it be with speech or travel or privacy, if they become convinced that the curtailment will somehow keep them safe.<br /><br /> But if Jefferson and all the history and tradition of American cultural and legal thought have been correct, these liberties are natural rights, integral to all rational people. I can sacrifice my liberties, but I cannot sacrifice yours. Personal liberty is subject only to due process, not majoritarianism. Stated differently, we can only morally and legally and constitutionally lose our personal liberties when our personal behavior has been adjudicated as criminal by a jury after a fair trial; we can't lose them by a majority vote of our neighbors or a majority vote of our representatives in government or a presidential executive order.<br /><br /> Moreover, the Paris killings, the Fort Hood massacre and the Boston Marathon killings are all examples of the counterintuitive argument that the loss of liberty does not bring about more safety. It does not. Rather, it gives folks the impression that the government is doing something -- anything -- to keep us safe. Because that impression is a false sense of security, it is dangerous; people tend to think they are secure when they are not. In fact, the government's reading everyone's emails and listening to everyone's telephone calls is making us less safe because a government intent on monitoring our every move suffers from data overload.<br /><br /> Because government is buried in too much data about too many folks, it loses sight of the moves of the bad guys. Add to this the historical phenomenon that liberty lost is rarely returned -- as a new generation accustomed to surveillance attains majority, surveillance seems the norm -- and you have a dangerous stew of tyranny. Just look at the Patriot Act, which permits federal agents to bypass the courts and write their own search warrants. It has had three sunsets since 2001, only to be re-enacted just prior to the onset of each -- and re-enacted for a longer period of time each time.<br /><br /> Since the Charlie Hebdo massacre in Paris in January, the police in France have been able legally to monitor anyone's communications or movements without a warrant and without even any suspicion. Today they can break down any door and arrest whomever they please, and this past weekend, the French Cabinet declared that authorities can confiscate all firearms in Paris. All that gives law enforcement a false sense of omnipotence over the monsters.<br /><br /> Only good old-fashioned undercover work -- face to face with evil, what the professionals call human intelligence on the ground -- can focus law enforcement on the bad guys. And an armed citizenry strikes terror into the hearts of would-be killers and even stops them before they complete their horrific tasks. But don't try telling that to the French government.</p>Judge Andrew P. Napolltano2015-11-18T08:00:00ZThe President and the Rule of LawJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-President-and-the-Rule-of-Law/-387217550212617790.html2015-11-12T08:00:00Z2015-11-12T08:00:00Z<p>Earlier this week, a federal appeals court in New Orleans upheld an injunction issued by a federal district court in Texas against the federal government, thereby preventing it from implementing President Barack Obama's executive orders on immigration. Critics had argued and two federal courts have now agreed that the orders effectively circumvented federal law and were essentially unconstitutional.<br /><br /> Though the injunction on its face restrains officials in the Department of Homeland Security, it is really a restraint on the president himself. Here is the back story.<br /><br /> President Obama has long wished to overhaul the nation's immigration laws to make it easier for people who are here illegally to remain here and to make it easier for them eventually to acquire the attributes of citizenship. He may have a bighearted moral motivation, or he may have a partisan political motivation. I don't know which it is, but his motivation has driven him to use extraconstitutional means to achieve his ends.<br /><br /> During his first term in office, he attempted to have federal laws changed -- quite properly at first -- by offering proposals to Congress, which it rejected. That rejection left in place a complex regulatory scheme that is partially administered by DHS and partially by the Department of Justice. It left about 11.3 million people unlawfully present in the United States.<br /><br /> The conscious decision of Congress not to change the law in the face of such a large number of undocumented people here left those people, adults and children, exposed to deportation. It also left them entitled to financial benefits paid for by the states in which they reside.<br /><br /> Deportation is a lengthy and expensive process. The courts have ruled that all people subject to deportation are entitled to a hearing, with counsel paid for by the government. If they lose, they are entitled to an appeal, with counsel paid for by the government. The government has teams of prosecutors, defense counsel and judges who address only deportations. The highest number of people the government has successfully deported in a year is about 250,000, which was done in 2013. If you add removals without trial (many are voluntary) and rejections at the border, the number swells to 438,000 a year.<br /><br /> While awaiting deportation, those people here unlawfully and not confined are entitled to the social safety net that states offer everyone else, as well as the direct benefits states make available to citizens, such as public schooling, access to hospital emergency rooms, and housing and personal living assistance.<br /><br /> Frustrated that Congress thwarted his will, President Obama -- resorting to his now infamous and probably regretted one-liner that he can govern by using a pen and a phone -- issued a series of executive orders in 2012 to various federal agencies, directing them to cease deportation of undocumented people if they complied with certain standards that the president wished of them. The standards, compliance with which would bar deportation, were essentially the same as those that the president had sought and Congress had rejected.<br /><br /> Can the president write his own laws or procedures?<br /><br /> In the litigation that came to a head early this week, 26 states, led by Texas, sued the federal government. In that lawsuit, the states argued that they would be made to endure unbearable financial burdens if the undocumented folks stayed where they are and if the states continued to make the same social safety net available to them as they make available to their lawful residents. Thus, the states argued, the president forced the states to spend money they hadn't budgeted or collected to support a legal scheme that Congress had not only never authorized but expressly rejected.<br /><br /> Can the president write his own laws and procedures?<br /><br /> The states also argued in their lawsuit that if the DHS and DOJ complied with the president's executive orders, those federal departments would be exceeding their authority under the statutes because the president was exceeding his authority. This is a president who has argued dozens of times in public that he is not a king and that he lacks the ability to recast the laws as he wishes they had been written.<br /><br /> Can the president write his own laws and procedures?<br /><br /> In a word: No. The president can issue executive orders to officials in the executive branch of government directing those officials to enforce the laws as the president wishes them to be enforced -- within the letter and spirit of those laws. But those executive orders cannot write new laws or revise old laws or ignore existing laws that the Congress clearly expects to be enforced. That is just what a federal district court judge ruled earlier this year and just what a federal appellate court ruled in affirming the district court earlier this week.<br /><br /> All people who embrace the rule of law -- whether they are for open borders or for an impenetrable border wall -- should embrace these rulings because they keep the president within the confines of the Constitution, which he has sworn to uphold.<br /><br /> Under our constitutional system of supposedly limited government, all legislative power is vested in Congress. The president enforces the laws; he doesn't write them. His oath of office commits him to preserve, protect and defend the Constitution, and it further commits him to enforce the federal laws "faithfully" -- meaning whether he personally agrees with them or not.<br /><br /> The clash between the president and the courts is as old as our republic itself. Courts are traditionally loath to interfere with the business of Congress or the president. Yet when the behavior of another branch of government defies core constitutional norms, it is the duty of the courts in a case properly before them to say what the Constitution means and to order compliance with it.</p>Judge Andrew P. Napolltano2015-11-12T08:00:00ZThe Mistress of DeceptionJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Mistress-of-Deception/861917231317306281.html2015-11-05T08:00:00Z2015-11-05T08:00:00Z<p>The self-inflicted wounds of Hillary Rodham Clinton just keep manifesting themselves. She has two serious issues that have arisen in the past week; one is political and the other is legal. Both have deception at their root.<br /><br /> Her political problem is one of credibility. We know from her emails that she informed her daughter Chelsea and the then-prime minister of Egypt within 12 hours of the murder of the U.S. ambassador to Libya, J. Christopher Stevens, that he had been killed in Benghazi by al-Qaida. We know from the public record that the Obama administration's narrative blamed the killings of the ambassador and his guards on an anonymous crowd's spontaneous reaction to an anti-Muhammad video.<br /><br /> Over this past weekend we learned that her own embassy staff in Tripoli told her senior staff in Washington the day after the killings that the video was not an issue, and very few Libyans had seen it. We also know from her emails that the CIA informed her within 24 hours of the ambassador's murder that it had been planned by al-Qaida 12 days before the actual killings.<br /><br /> Nevertheless, she persisted in blaming the video. When she received the bodies of Ambassador Stevens and his three bodyguards at Andrews Air Force base three days after their murders, she told the media and the families of the deceased assembled there that the four Americans had been killed by a spontaneous mob reacting to a cheap 15-minute anti-Muhammad video.<br /><br /> Clinton's sordid behavior throughout this unhappy affair reveals a cavalier attitude about the truth and a ready willingness to deceive the public for short-term political gain. This might not harm her political aspirations with her base in the Democratic Party; but it will be a serious political problem for her with independent voters, without whose support she simply cannot be elected.<br /><br /> Yet, her name might not appear on any ballot in 2016.<br /><br /> That's because, each time she addresses these issues -- her involvement in Benghazi and her emails -- her legal problems get worse. We already know that the FBI has been investigating her for espionage (the failure to secure state secrets), destruction of government property and obstruction of justice (wiping her computer server clean of governmental emails that were and are the property of the federal government), and perjury (lying to a federal judge about whether she returned all governmental emails to the State Department).<br /><br /> Now, she has added new potential perjury and misleading Congress issues because of her deceptive testimony to the House Benghazi committee. In 2011, when President Obama persuaded NATO to enact and enforce a no-fly zone over Libya, he sent American intelligence agents on the ground. Since they were not military and were not shooting at Libyan government forces, he could plausibly argue that he had not put "boots" on the ground. Clinton, however, decided that she could accelerate the departure of the Libyan strongman, Col. Moammar Gadhafi, by arming some of the Libyan rebel groups that were attempting to oppose him and thus helping them to shoot at government forces.<br /><br /> So, in violation of federal law and the U.N. arms embargo on Libya she authorized the shipment of American arms to Qatar, knowing they'd be passed off to Libyan rebels, some of whom were al-Qaida, a few of whom killed Ambassador Stevens using American-made weapons. When asked about this, she said she knew nothing of it. The emails underlying this are in the public domain. Clinton not only knew of the arms-to-Libyan-rebels deal, she authored and authorized it. She lied about this under oath.<br /><br /> After surveying the damage done to his regime and his family by NATO bombings, Col. Kaddafi made known his wish to negotiate a peaceful departure from Libya. When his wish was presented to Clinton, a source in the room with Clinton has revealed that she silently made the "off with his head" hand motion by moving her hand quickly across her neck. She could do that because she knew the rebels were well equipped with American arms with which to kill him. She didn't care that many of the rebels were al-Qaida or that arming them was a felony. She lied about this under oath.<br /><br /> My Fox News colleagues Catherine Herridge and Pamela Browne have scrutinized Clinton's testimony with respect to her friend and adviser Sidney Blumenthal. Recall that President Obama vetoed Clinton's wish to hire him as her State Department senior adviser. So she had the Clinton Foundation pay him a greater salary than the State Department would have, and he became her silent de facto advisor.<br /><br /> They emailed each other hundreds of times during her tenure. He provided intelligence to her, which he obtained from a security company on the ground in Libya in which he had a financial interest. He advised her on how to present herself to the media. He even advocated the parameters of the Libyan no-fly zone and she acted upon his recommendations. Yet she told the committee he was "just a friend." She was highly deceptive and criminally misleading about this under oath.<br /><br /> It is difficult to believe that the federal prosecutors and FBI agents investigating Clinton will not recommend that she be indicted. Inexplicably, she seems to have forgotten that they were monitoring what she said under oath to the Benghazi committee. By lying under oath, and by misleading Congress, she gave that team additional areas to investigate and on which to recommend indictments.<br /><br /> When those recommendations are made known, no ballot will bear her name.</p>Judge Andrew P. Napolltano2015-11-05T08:00:00ZQuestions for Hillary ClintonJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Questions-for-Hillary-Clinton/471770766714159116.html2015-10-22T07:00:00Z2015-10-22T07:00:00Z<p>At long last, Hillary Clinton testifies on the 2012 terrorist attacks in Benghazi, Libya, and her emails as secretary of state. Here are some suggested questions. Although these suggestions are based on the public record, we need to assume that the members of the House Benghazi Committee have seen far more than the public has. I have framed the questions in traditional cross-examination style, though I doubt that the politicians on the committee will have the self-discipline to adhere to it.<br /><br /> The theory of cross-examination -- particularly of a high-profile, intelligent, belligerent or ruthless witness -- is for the questioner to tell a story by asking questions that suggest answers that challenge the witness's version of events or impeach the witness's credibility. The questioner's version of events must be based on credible evidence. In a courtroom, the questioner's audience for his version of the events is the jury. In a congressional hearing, the audience is the American people.<br /><br /> I have publicly advised members of Congress that they should not ask any questions of Clinton; instead, they should have a prominent attorney who is her equal in intellect and knowledge of the law yet is a fierce, experienced cross-examiner do so. But the lure of TV cameras will probably cause the committee members to reject my advice. As well, some of the committee members are lawyers, and the committee's chairman, Rep. Trey Gowdy, is a former federal prosecutor.<br /><br /> Anyway, here goes...<br /><br /> Mrs. Clinton, when you first became secretary of state, you were briefed on the proper use of emails, right?<br /><br />And you were informed of your obligation to preserve all governmental records that came into your possession and not destroy any of them, right? And you also were briefed on the proper handling of classified materials, weren't you? In fact, Mrs. Clinton, you were presented with a written government oath that every federal employee who handles classified materials receives and must sign, correct? Isn't it also true, Mrs. Clinton, that you never signed that oath?<br /><br /> Didn't you pay a State Department employee -- not an outside vendor -- to install a private email server in your home in New York? And when you did that, you knew the practical effect of it would be to divert all your emails -- governmental and personal -- away from the government, right? And you used, did you not, that email system your employee in the State Department installed in your home as your exclusive email source during your tenure as secretary of state? And that email system was directly connected to the Internet, right?<br /> Isn't it true that you received and sent emails on your personal system that included satellite photos of foreign surveillance; intercepts of telephonic and email communications of foreign agents; travel plans of U.S. Ambassador to Libya Christopher Stevens, who was killed in the Benghazi attacks; and the true name of a CIA agent operating under deep cover in the Middle East?<br /><br /> Isn't it true that you were probably too busy to read all the emails you received before storing them or sending them on to others? Isn't it true that you treated all emails alike, whether they contained delicate or personal information or not?<br /><br /> Mrs. Clinton, haven't you stated a few dozen times that you never sent or received emails marked "classified"? Now, Mrs. Clinton, you were the country's chief diplomat for four years, right? Don't you know that nothing is marked "classified" -- that the national security markings are "confidential," "secret" and "top secret"?<br /><br /> Mrs. Clinton, isn't it true that you asked President Obama to let you hire your friend and colleague Sidney Blumenthal as a special assistant to you in the State Department? Isn't it true that the president declined your request? Didn't you then have your family's foundation hire Mr. Blumenthal, and didn't you then treat him as your assistant without telling the president?<br /><br /> Mrs. Clinton, didn't you communicate with Mr. Blumenthal about political and national security matters on a regular and consistent and often-daily basis? Didn't he provide you with confidential information from his own sources? Didn't you pass confidential information on to him?<br /><br /> Mrs. Clinton, you knew that the war you were waging against Moammar Gadhafi was causing great instability in Libya, right? And you knew that instability had led to the need for private security firms to protect Libyans and Americans in Libya, correct? And didn't you also know that your friend and confidant Mr. Blumenthal had a financial interest in one of those firms while he was advising you? You didn't see anything illegal about an employee of your family's foundation's receiving secret data from you while he was advising you and trying to get business for his security firm in Libya, did you?<br /><br /> Mrs. Clinton, isn't it true that you put the travel plans of Ambassador Stevens onto nongovernmental Internet venues? Isn't it true that at the time you did that, he asked you for more security in Libya and you did not provide it? Mrs. Clinton, isn't it true that to fight your secret war against the government of Gadhafi, you sent American arms into the hands of his opponents? And you did this without a congressional declaration of war, right?<br /><br /> Didn't you know that many of Gadhafi's opponents were al-Qaida operatives, who are America's sworn enemies? Weren't you reckless in getting arms to them? Didn't you realize that you were arming the very people against whom your ambassador was seeking more protection?<br /><br /> Mrs. Clinton, do you know it is a felony to provide arms to terrorist organizations? Do you know that Ambassador Stevens was murdered by al-Qaida operatives using American arms and American bullets?<br /> Mrs. Clinton, do you think anyone but the most hardened Democrats and your husband's old friends could trust you in public office?</p>Judge Andrew P. Napolltano2015-10-22T07:00:00ZWhy Is Hillary Clinton So Unhappy?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Why-Is-Hillary-Clinton-So-Unhappy/-671123226191931925.html2015-10-14T07:00:00Z2015-10-14T07:00:00Z<p>Why is Hillary Clinton so unhappy? According to her, when she and her husband left the White House, they were dead broke. Yet they left with a truckload of valuable furniture, dinnerware and flatware that was the property of the federal government, for which they were never prosecuted.</p>
<p>They also left with contracts for lectures and speeches worth between $20 million and $30 million in the ensuing years. And they have done quite well financially. According to The Washington Post, between the time Bill Clinton left office in 2001 and January 2013, when Hillary Clinton stepped down as secretary of state, Bill alone made $104.9 million for speeches, and Hillary's standard speaking fee is $200,000 a pop.</p>
<p>Why is Hillary so unhappy? We can start with the fact that she is her own worst enemy. No Republican dirty trickster could have put her into the legal and political mess into which she has put herself. Her surreptitious refusal to follow federal law and her congenital lying about it have caught up with her.</p>
<p>By using her own computer server instead of the government's in the four years of her tenure as secretary of state, she knowingly compromised the national security of the United States. She did this by receiving and sending at least 400 emails that contained information that under federal law was confidential, secret or top-secret, which is a felony.</p>
<p>The failure to preserve data of that nature is a federal crime, whether it is stamped with an official secret denomination, whether one has read it and perceived its secret nature, and whether it has fallen into enemy hands or not. Gen. David Petraeus was convicted of retaining the printed versions of secret and top-secret data in a desk drawer in his guarded home. It was alleged -- but not proved -- that he shared this data with one of his subordinates. Even though the subordinate had a security clearance, Petraeus was prosecuted.</p>
<p>In Hillary's case, the data have fallen into enemy hands, as one of the folks to whom she regularly sent her emails -- in utter and reckless disregard for the secrets they contained -- was her political adviser Sid Blumenthal, an employee of the Clinton Foundation at the time. Blumenthal's insecure server was hacked by Romanian intelligence agents, who were convicted and sentenced to prison.</p>
<p>Why is Hillary so unhappy? When the State Department was sued by public interest groups seeking copies of Hillary's emails -- lawsuits permitted and even encouraged by the Freedom of Information Act, a federal statute that presumes that documents and emails in federal custody are available for the public to see -- the State Department answered the litigation truthfully by telling a federal judge that it had none of Hillary's emails.</p>
<p>Then The New York Times blew the lid off this by revealing her exclusive use of her private server, and the same federal judge angrily ordered the State Department to get its hands on Hillary's emails. Then she revealed that she had erased 30,000 of the emails, which she said were personal. After that, she surrendered the printed versions of another 30,000 emails, which she characterized as governmental.</p>
<p>When the judge -- who had been appointed to the federal bench by Hillary's husband -- looked at what the State Department had turned over, it did not seem complete to him; crucial months were missing. So he ordered Hillary to swear under oath -- "under penalty of perjury," as he put it -- that she had surrendered all governmental emails in her possession. She did so swear in a document now made public.</p>
<p>Then the House Benghazi Committee subpoenaed Blumenthal's emails, and its investigators discovered governmental emails Hillary sent to him that she had not surrendered to the State Department, even though she had sworn that she had.</p>
<p>Why is Hillary so unhappy? She is unhappy because she realizes that she needs a criminal defense lawyer to deal with the FBI investigation of her while she is running for president. The FBI is looking to see whether she failed to protect national security secrets (espionage), whether she destroyed government emails (obstruction of justice) and whether she lied under oath about all this to a federal judge (perjury).</p>
<p>She is unhappy because she has repeatedly characterized her own behavior as "allowed at the time," which flies in the face of the law and is simply incredible. It was allowed only in the depths of her self-justifying, narcissistic mind.</p>
<p>She is unhappy because the FBI has discovered that it can retrieve the emails she thought she destroyed and that her server was directly connected to the Internet, making it and the secrets she stored and transferred on it vulnerable to attack. She is unhappy because she was hacked -- we do not know whether successfully or not -- by the Russians, the Chinese and even the Israelis.</p>
<p>She is unhappy because she got caught in a scheme of her own creation. I suspect she is about to become even less happy when evidence of why she did this comes to light. I suspect that evidence will soon be made known that will demonstrate conclusively that she and her aides were part of a criminal conspiracy to enrich the Clinton Foundation by unlawful means -- including moving levers of governmental power -- and thus enrich her and her husband. And she is unhappy because the FBI will soon be asked to investigate that.</p>
<p>She is unhappy because only Democratic die-hards believe her. She is unhappy because voters will not elect an unhappy person as president -- and she knows that.</p>Judge Andrew P. Napolltano2015-10-14T07:00:00ZThe Natural Right to Self-DefenseJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Natural-Right-to-Self-Defense/-256275823344777457.html2015-10-07T07:00:00Z2015-10-07T07:00:00Z<p>While the FBI continued to analyze the emails Hillary Clinton thought she deleted and her advisers pressed her to hire a Republican criminal defense attorney in Washington, a madman used a lawfully purchased handgun to kill a professor and eight students at a community college in Roseburg, Oregon. Looking to change the subject away from her emails, Clinton was quick to pounce.<br /><br /> She who has ripped into Republicans for seeking political gain from the four American deaths in Benghazi, Libya, now seeks her own political gain from the dozens of murdered children and young adults in Newtown, Connecticut, and Roseburg. On the heels of the latter and referring to both tragedies, she launched an emotional attack early this week on the two most recent Supreme Court decisions upholding the personal right to keep and bear arms. She offered to "fix" them should she be elected president.<br /><br /> Her so-called fix consists of a dead-on-arrival legislative proposal making gun manufacturers financially liable for the misuse of their products and an executive order determining the meaning of certain words used in federal statutes.<br /><br /> The liability-shifting proposal is akin to punishing General Motors whenever a drunken driver misuses his Chevy and injures someone. The courts would surely reject that.<br /><br /> The executive order proposal assaults the Constitution. Those in the gun sale business must conduct background checks via computer services offered by the FBI. The background checks look for reports of crimes of violence, domestic violence and mental illness. Private people who occasionally sell their hardware or give guns as gifts are exempt from conducting background checks. Clinton would create a presidentially written and mandated definition of occasional sales and gifts so as to require background checks for all gun transfers -- a requirement Congress rejected.<br /><br /> We are 13 months from Election Day 2016, and Clinton has already promised that she would rule by pen and phone rather than govern by consensus.<br /><br /> As a lawyer, Clinton should know that only the federal courts -- not the president -- can decide what statutory language means. Moreover, if she knew anything about FBI background checks, she would know that they are only as good as the database on which they rely. If a madman hides his mental illness, no database will reveal it.<br /><br /> Her attacks on the Supreme Court decisions were direct. She rejects their characterization of the right to keep and bear arms as a fundamental right -- meaning that it is akin to thought, speech, press, association, worship, travel, etc.<br /><br /> Yet if she were to become president, she would take an oath to uphold the Constitution; that means the Constitution as interpreted by the Supreme Court. The presidential oath of office would require that she execute her duties "faithfully" -- whether she agrees with the law or constitutional provision or not. She apparently has no intention of fulfilling the presidential oath of office.<br /><br /> We are 13 months from Election Day 2016, and Clinton has already promised that she would not enforce Supreme Court decisions with which she disagrees.<br /><br /> What did both the Newtown and the Roseburg tragedies have in common? Both murderers were madmen. Yet neither had a record of mental illness, so the background checks the anti-self-defense lobby loves would not have prevented either of these killers from buying a gun and using it to murder indiscriminately. If killers are prepared to murder innocent children, does Clinton really think they would obey the laws regulating gun ownership?<br /><br /> Both mass murders occurred in no-gun zones. A no-gun zone is the most dangerous place on the planet when a madman intent on killing enters. No-gun zones are arbitrarily designated on public property by local authorities, stripping law-abiding folks of their lawfully owned guns -- their natural right to self-defense -- and exposing them to terror and death.<br /><br /> The Constitution does not permit public no-gun zones any more than it does public no-free-speech zones. If the right to keep and bear arms is truly fundamental, the government cannot interfere with it based on geography. If the Army veteran/college student who stopped seven bullets with his body last week and saved the lives of his classmates (and survived!) had been permitted to carry a gun into the school building, the madman who murdered nine innocents would have been stopped long before police arrived -- long before he completed his killings.<br /><br /> The right to keep and bear arms has more than just the Second Amendment to protect it. By characterizing the right as fundamental and pre-political, the high court accepted the truism that this right is merely a modern extension of the ancient right to self-defense. And the right to defend oneself does not come from the government; it comes from our humanity. It is a natural right.<br /><br /> Who among us, when confronted with the terror of nearly certain annihilation, would concern himself with the niceties of the law? Life itself is at stake. The right to self-defense is a manifestation of the natural instinct for survival, borne in the hearts of all rational people.<br /><br /> But Hillary Clinton rejects that instinct because she prefers we become dependent upon the government -- as long as she is running it.<br /><br /> The police cannot stop mass killings, because they cannot be everywhere all the time. And madmen willing to kill do not fear being lawbreakers. Guns in the hands of the people give not only tyrants second thoughts but also madmen.<br /><br /> Even madmen fear an early death.</p>Judge Andrew P. Napolltano2015-10-07T07:00:00ZA Papacy of NoveltyJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/A-Papacy-of-Novelty/-842084022638651729.html2015-09-30T20:28:00Z2015-09-30T20:28:00Z<p>What if things are not always as they seem?<br /><br /> What if the enormously popular Pope Francis is popular precisely because he is less Catholic than his two immediate predecessors? What if his theory of his stewardship of Catholicism is to broaden the base of the Church by weakening her doctrine so as to attract more people by making it temporally easier to be Catholic?<br /><br /> What if the pope really believes that rather than resist modernism -- with its here today and gone tomorrow fancies -- the Church should give in to it and even become a part of it so as to appear to be relevant?<br /><br /> What if this is the very opposite of his responsibilities as the Vicar of Christ? What if he rejects his role as the personification of the preservation of Truth and believes he can ignore some truths?<br /><br /> What if the pope thinks, like the big government types in the federal government, that he can change any rule, alter any custom and embrace any heresy in order to advance his novel version of Catholicism? What if he has done so?<br /><br /> What if his radical revision of the process for nullifying Catholic marriages amounts to no more than granting Catholic divorces? What if his making easier reconciliation with the sacraments after participating in an abortion actually diminishes the gravity of killing babies in the womb and encourages more killing? What if he permits Catholics who have remarried outside the Church while still validly married to their original spouse to receive the sacraments?<br /><br /> What if the concept of liberation theology, condemned by Saint Pope John Paul II and Pope Benedict XVI, mixes Marxism and Catholicism -- which are essentially opposites -- and produces a weird result that mocks the Mass, rejects traditional teachings, distributes the Blessed Sacrament to non-believers, rejects the need for oracular confession and holds that all world history is but the continued exploitation of the poor by the rich? What if, before he publicly toured America, he privately welcomed at the Vatican the founder of this perversion of Christianity? What if he embraced and celebrated him?<br /><br /> What if one of the reasons his trip to America was so well received is because so many in the media embraced him? What if the media embrace him precisely because his version of Catholicism is not consistent with tradition? What if those in the media who embraced him are not Catholics? What if he seemed more concerned last week with the way we treat the Earth than with the way we treat each other?<br /><br /> What if his passion for the cause of the uber-environmentalists finds no place in Catholic dogma?<br /><br /> What if a bishop friend of mine reviewed all the pope's public talks last week -- at masses and elsewhere -- and found that the references to care for the Earth were full-throated, dramatic and clear? What if the same bishop found that the pope's references to abortion were muted, ambiguous and never even used the word?<br /><br /> What if the capitalism that informed the pope as a young man, the "business" he told Congress he favored, is really the fascism of Argentina in the 1950s and 1960s? What if that fascism -- private ownership and government control of economic activities -- is akin to the corporatism of today so favored by both American political parties?<br /><br /> What if that corporatism is really a two-way street? What if the corporations that are burdened by the government also benefit from it? What if the same government that grants welfare to the poor and tax breaks to the middle class also grants bailouts to select corporations? What if the pope understands this and embraces it and is attempting to further it by using the moral force of the papacy to support it?<br /><br /> What if, when the pope emphasized the Golden Rule when he addressed Congress, he was not talking about the moral obligation of individuals, but the duty of the government? What if the pope's muted message that we are our brothers' keepers was not addressed to us in the Judeo-Christian individualist sense, but to the government in an authoritarian sense?<br /><br /> What if the pope was arguing that the government has a moral obligation to be charitable with taxpayer dollars and dollars borrowed in the taxpayers' names? What if charity comes from the heart, not from the government? What if it is impossible to be charitable with other people's money? What if you can get to Heaven by giving of your wealth to the poor? What if there is no personal merit when the government takes your wealth and gives it away in your name?<br /><br /> What if the papacy of John Paul II, which helped liberate millions from the yoke of Communism, and the papacy of Benedict XVI, which produced personal piety and fidelity to traditional teachings amongst many now studying for the priesthood, have been rejected by Pope Francis in favor of novel experiments intended to attract those who reject traditional teachings?<br /><br /> What if this papacy of novelty is as unsuccessful as Vatican II and churches soon empty because the Church changes with the wind, embraces the cult of personality and is disinterested in the Truth?<br /><br /> What if Truth is immutable? What if novelty is the opposite of Truth?</p>Judge Andrew P. Napolltano2015-09-30T20:28:00ZIs the Pope a False Prophet?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Is-the-Pope-a-False-Prophet/930392543284479622.html2015-09-23T07:00:00Z2015-09-23T07:00:00Z<p>Is the Pope a False Prophet?</p>
<p>Congressman Thomas Massie, R-Ky., has invited me to the House of Representatives to watch Pope Francis address a joint session of Congress. This generous Methodist congressman has invited your traditionalist Roman Catholic columnist and cable TV guy to this grand event. I am going with joy because the pope is the Vicar of Christ on Earth, and his presence in Congress is historically unique. But within me is fear and trembling over what he might say.<br /><br /> The papacy is an office created personally by Our Lord. Its occupants are direct descendants of St. Peter. Its role and authorities have evolved over the centuries, but the core of its responsibilities has always been the preservation of traditional teachings about faith and morals and safeguarding the sacraments. While the papacy is a monarchy, the teaching authority in the Church is "the bishops under the pope." This means that a pope intent on change ought to consult with his fellow bishops.<br /><br /> Before the monumental Church changes of the 1960s and 1970s that trivialized the Mass and blurred the distinctions between the clergy and the laity, Popes John XXIII and Paul VI consulted their fellow bishops at Vatican II. The consultations were fractious and belligerent, but both popes got what they wanted: a watering down of liturgical practices and an easing of rules safeguarding the sacraments, so as to make the Church more appealing and accessible to former and to non-adherents.<br /><br /> The result was a disaster. Fewer Catholics went to Mass, confusion about former theological norms reigned, and a general tenor pervaded the faithful that the Church never really meant what it preached. Former Catholics continued to stay away, new Catholics barely showed up, and many traditional faithful became demoralized.<br /><br /> Popes John Paul II and Benedict XVI attempted to roll this back. They succeeded in part by emphasizing traditional orthodoxy and personal piety to youth. Today, Catholic seminaries throughout the world are filled with young men who are more faithful to traditional practices and beliefs than many of their professors are.<br /> Comes now Pope Francis to use moral relativism to take the Church in two dangerous directions. The first is an assault on the family, and the second is an assault on the free market -- two favorite political targets of the left.<br /><br /> In the past month, without consulting his fellow bishops, the pope has weakened the sacrament of matrimony by making annulments easier to obtain. The Church cannot grant divorces because Our Lord used his own words to declare valid marriages indissoluble. But it does grant annulments.<br /><br /> An annulment is a judicial finding that a valid marriage never existed. This generally requires a trial, at which the party seeking the annulment must prove the existence of the marital defect from the beginning.<br /><br /> Fair annulment trials are costly and time consuming, often taking years from the initial filing to the final appeal. Until now. Last week, Pope Francis arbitrarily ordered the entire process to be completed in 45 days or fewer. For contested matters, a fair trial in 45 days is impossible. So, to meet his deadline, more annulments will be granted administratively, not on the merits.<br /><br /> It gets worse.<br /><br /> The Church has taught for 400 years that abortion is murder. Because the victim of an abortion is always innocent, helpless and uniquely under the control of the mother, abortion removes the participants from access to the sacraments. Until now. Last week, Pope Francis, without consulting his fellow bishops, ordered that any priest may return those who have killed a baby in a womb to the communion of the faithful. He said he did this because he was moved by the anguished cries of mothers contemplating the murder of their babies.<br /><br /> I doubt he will defend these decisions before Congress. He will, instead, assault the free market, which he blames for poverty, pollution and the mass migrations into Europe away from worn-torn areas in the Middle East.<br /><br /> In his papal exhortation on capitalism, Pope Francis spectacularly failed to appreciate the benefits of capitalism to the health, wealth and safety of the poor. Instead, he has reworked the Peronism of his youth to advocate government-mandated redistribution of wealth and to condemn those who work hard, employ others and achieve wealth -- even when they give some of that wealth to the Church.<br /><br /> When he is in St. Patrick's Cathedral in New York City later this week, he should take note of the recent and beautiful $200 million facelift. It was paid in full by rich Catholic capitalists who employed hardworking artisans and laborers to do the work.<br /><br /> The pope probably also will tell Congress that the world is an inherently unhealthy place because of human work. He will embrace the highly questionable green science of those who want the government to tell us how to live, outside our homes and inside -- more Thomas Piketty than St. Thomas Aquinas.<br /><br /> The pope has seriously disappointed those who believe the Roman Catholic Church preserves and teaches the Truth. The Truth is Christ risen and unity with Him. It is not a debate about the minimum wage or air conditioning.<br /><br /> Pope Francis is popular on the world stage, and the crowds love him. But if he fails in his basic duties as the pope, if his concern is more for secular than sacred, if he aids the political agenda of the atheistic left, he is a false prophet leading his flock to a dangerous place, where there is more central planning and less personal liberty.</p>Judge Andrew P. Napolltano2015-09-23T07:00:00ZThe Hillary ChroniclesJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Hillary-Chronicles/405381255999137804.html2015-09-16T16:42:00Z2015-09-16T16:42:00Z<p>The bad news has continued to cascade onto the Hillary Clinton for President campaign, and none of it has anything to do with Clinton's opinions on issues. It all is about her fitness for office.</p>
<p>Since Labor Day, we have learned that the folks into whose hands Clinton reposed her computer server for safe keeping do not believe it has been wiped clean of all emails, as her lawyer told a federal judge it was. That means the 33,000 emails she thought she destroyed probably still could be recovered. What will they reveal?</p>
<p>And we learned earlier this week that of the emails released thus far -- those Clinton did not attempt to destroy -- there is a five-month gap for which no emails were produced. For a government official who sent or received about 15,000 emails a year, five months of silence is not believable. Two of those months followed the assassination of the U.S. ambassador to Libya in Benghazi. Where are her emails from that time period?</p>
<p>Why should you care about this?</p>
<p>It is now well established that when she was secretary of state, Clinton refused to use government computers or servers for any of her emails -- governmental and personal. She kept all of her emails from the government. That constitutes theft of government property, as it violates a federal law that mandates that the government owns the emails its employees generate in their work, and if an employee commingles her personal emails with the government's, the government owns those, as well.</p>
<p>Clinton said she did this because she believed it would be easier to do all emailing from one hand-held device, even though she eventually used four devices. Instead of accepting a secure government-issued BlackBerry, she had aides buy an off-the-shelf BlackBerry. We now know she was trying to conceal her Middle Eastern escapades -- secret wars and personal approvals of arms dealings to terrorists -- from the president, from FBI investigators, from State Department colleagues and from history.</p>
<p>But her most serious crime is her failure to safeguard national secrets. The secretary of state is the nation's chief diplomat. She deals with military, diplomatic and national security secrets every day. One of the reasons government employees are required by law to use a government-issued hand-held device and a government-owned and secured server for their official work is to safeguard the national security secrets that pass to and from them by securing their emails with government software and encryption.</p>
<p>Why should you care about this?</p>
<p>When she became secretary of state, Clinton told the president she wanted to hire her friend Sidney Blumenthal -- whom the press has nicknamed 'the prince of darkness' and 'grassy knoll' -- to work as her senior adviser. The president himself blocked the toxic Blumenthal from working for the State Department, whereupon Clinton had her husband's foundation hire him. She then proceeded to engage with him as if he were a senior adviser and to share top-secret emails with him. Blumenthal did not have any national security clearance, and it was a felony for Clinton to share government secrets with him.</p>
<p>Why should you care about this? </p>
<p>You should care about this because Clinton is running for president. Yet, she is uniquely unqualified for the presidency because she is the moral equivalent of a common crook.</p>
<p>Like a crook, she breaks the law, lies about why she broke the law, sees no wrongdoing in her ways and expects to get away with it. Though millions of Democrats have dreamed of her in the White House, and are apparently willing to overlook her crimes, her support is beginning to erode.</p>
<p>How can a person with the morals of a crook be the chief law enforcement officer in the land, the commander in chief of the military and the repository of more lawful power than any person on the planet? How can she be entrusted with national security secrets in the future when she has failed to safeguard them in the past?</p>
<p>Because Blumenthal lacked the government's encryption on his email devices and server, he was hacked by foreign agents. Because he was hacked, Clinton was hacked. Because she was hacked, some of the nation's military, diplomatic and national security secrets in a dangerous world are now in dangerous hands.</p>
<p>A sailor faces 20 years in federal prison for taking a selfie in front of a radar screen and sending it to his girlfriend, and a courageous Marine who used his Gmail account in an emergency to warn his superiors of the near proximity of an assassin faces 20 years for failing to keep the email about the assassin in a secure venue. Then-CIA Director David Petraeus kept secrets in an unlocked desk drawer in his home, which was guarded 24/7, and he pleaded guilty to failure to safeguard secrets.</p>
<p>Clinton's crimes are far worse, but is she any different legally? Can she get away with her crimes because of her last name? She seems to think so. Last week she apologized for making poor choices -- not crimes, but poor choices. And she has given no coherent legal justification for all this.</p>
<p>While all this is going on, Vice President Biden is dreaming about his boss's job because he and many Democrats have come to the realization that Hillary Clinton is utterly unworthy of their trust, and power in her hands might be used for unlawful purposes.</p>Judge Andrew P. Napolltano2015-09-16T16:42:00ZReligious Belief and the Rule of LawJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Religious-Belief-and-the-Rule-of-Law/-623704331292802442.html2015-09-10T20:34:00Z2015-09-10T20:34:00Z<p>Shortly before the Labor Day weekend, a federal judge in Kentucky ordered the Rowan County clerk incarcerated for violating his orders. Five days later, he released her.</p>
<p>The judge found that the clerk, Kim Davis, interfered with the ability of same-sex couples in her county to marry by refusing to issue them applications for marriage licenses. Davis argued that she was following her conscience, which is grounded in a well-known Christian antipathy to same-sex marriages, which, in turn, is protected by the Free Exercise Clause of the First Amendment. Here is the backstory.</p>
<p>Davis is the clerk of Rowan County, Ky. Among her duties as county clerk is the issuance of applications for marriage licenses. When she assumed office, she took an oath to administer her duties consistent with the U.S. Constitution. Her job with respect to licenses is ministerial: issuing documents to those who legally qualify for them and filing the documents when they are returned to her.</p>
<p>Kentucky law requires that applicants for marriage licenses be unmarried, residents of Kentucky and at least 18 years of age. As a county clerk, Davis cannot add to these requirements another requirement -- namely, that the applicants be of the opposite sex. She cannot do that because the Supreme Court has ruled that marriage is a fundamental liberty, the exercise of which is protected by the Constitution, and within that liberty is the right to choose a same-sex marriage mate, uninterfered with by the state.</p>
<p>By adding her own requirement and using the force of law to enforce that requirement, she is frustrating the ruling of the Supreme Court, interfering with the fundamental liberties of marriage applicants, and violating her oath to uphold the Constitution, the final interpreter of which is the Supreme Court.</p>
<p>After Davis refused to comply with two of his orders to issue applications to those who comply with Kentucky law and not to add her own requirement, a federal trial judge found that she was in a state of civil contempt, and he incarcerated her.</p>
<p>Civil contempt is not a crime. Hence she was not sentenced to a jail term. The purpose of her incarceration was not punishment; rather, it was coercion. The courts have limited resources with which to coerce reluctant litigants to comply with court orders, and incarceration is one of them.</p>
<p>The court properly interpreted its duties under the Constitution, but was wrong to incarcerate her.</p>
<p>Davis is running a county clerk's office, not a church and not a legislative body. Moreover, her imposition of her own religious requirement upon the license applicants violates the well-respected and long-held First Amendment value of separation of church and state. She is free to believe as she wishes and to practice her beliefs, is free to impose her beliefs on her children and family, and is free to attempt to persuade others of the salvific value of her beliefs. But she is not free to use the force of law to further her beliefs by denying legal rights to those unwilling to accept them.</p>
<p>Suppose her religion forbade interracial marriage (as some Mormon Churches do). Could she deny a marriage license application to an interracial couple? Or, suppose she was a traditionalist Roman Catholic, who believed that Catholics should only marry other Catholics. Could she deny a marriage license application to a Catholic planning to marry a non-Catholic? Or, suppose her religion condemned the private ownership and use of guns (as some Quakers do). Could she refuse to issue applications for gun permits? The answers are obvious.</p>
<p>If her personal religious views could trump her obligations under the law when she is in a ministerial and not a discretionary government job, and other government officials similarly situated could do the same, then we'd lack the rule of law in America, and we would live instead under the discretion of bureaucrats.</p>
<p>But she should not have been sent to jail. Judges must do all possible to resist the temptation to incarcerate defiant litigants, because incarceration should be the last resort. Judges should enforce their rulings using the least force necessary, not the most force available. And history teaches that for those who conscientiously defy the law -- particularly for religious-based reasons -- incarceration is often fruitless.</p>
<p>I would have removed her authority to issue marriage license applications and assigned it to others in the Kentucky state government, and directed them to issue the applications in accordance with the law. That would have kept Davis free and her conscience clear, and permitted those in Rowan County to get married to whom they choose.</p>
<p>What about the St. Thomas More argument: "I die the King's good servant, but God's first"? That is not relevant here. More was tried, convicted and executed for his personal refusal to accept a heretical doctrine: that the monstrous King Henry VIII was somehow the head of the Roman Catholic Church in England. Even More admitted that one must do all one can to avoid martyrdom, even leaving public office knowing that one's successor will do what one has refused.</p>
<p>The Free Exercise Clause guarantees individuals the lawful ability to practice their religion free from government interference. It does not permit those in government to use their offices to deny the rights of those who reject their beliefs. That is the lesson for Kim Davis.</p>Judge Andrew P. Napolltano2015-09-10T20:34:00ZWhat If Hillary Clinton Doesn't Care?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-If-Hillary-Clinton-Doesnt-Care/-479299517223888869.html2015-08-27T18:29:00Z2015-08-27T18:29:00Z<p>What if former U.S. Secretary of State Hillary Clinton has been pulling the wool over our eyes for years?</p>
<p>What if, while she was secretary of state, she ran two secret wars, one in Libya and one in Syria? What if there already were wars in each of those countries, so she used those wars as covers for her own?</p>
<p>What if President Obama gave permission for her to do this? What if the president lacks the legal authority to authorize anyone to fight secret wars? What if she obtained the consent of a dozen members of Congress from both houses and from both political parties? What if those few members of Congress who approved of her wars lacked the legal authority to authorize them?</p>
<p>What if her goal was to overthrow two dictators, one friendly to the U.S. and one not? What if the instruments of her war did not consist of American military troops, but rather State Department intelligence assets and American-made military-grade heavy weapons?</p>
<p>What if under federal law the secretary of state and the secretary of the Treasury are permitted on their own to issue licenses to American arms dealers to sell arms to the governments of foreign countries? What if Clinton secretly authorized the sale of American-made military-grade weapons to the government of Qatar? What if Qatar is a small Middle Eastern country, the government of which is beholden to and largely controlled by the Muslim Brotherhood?</p>
<p>What if the Muslim Brotherhood is a recognized terrorist organization? What if the U.S. has no lawful or military purpose for putting military hardware into the hands of a government that supports or is controlled by a terrorist organization?</p>
<p>What if the real purpose of sending military hardware to Qatar was for it to end up in the hands of rebels in Syria and Libya? What if it got there? What if some of those rebels are known al-Qaida operatives? What if some of those operatives who received the American military hardware used it to assault Americans and American interests?</p>
<p>What if among those assaulted was the U.S. ambassador to Libya? What if Ambassador Christopher Stevens was assassinated in Benghazi, Libya, by al-Qaida operatives who were using American-made military-grade hardware that Clinton knowingly sent to them?</p>
<p>What if the U.S. had no strategic interest in deposing the government of Libya? What if Congress never declared war on Libya? What if Col. Gadhafi, the then-dictator of Libya who was reprehensible, was nevertheless an American ally whose fights against known terrorist organizations had garnered him praise from President George W. Bush and British Prime Minister Tony Blair?</p>
<p>What if the U.S. had no strategic interest in deposing the dictator of Syria, President Assad? What if Congress never declared war on Syria? What if the government of Syria, though reprehensible, has been fighting a war against groups and militias, some of whom have been designated as terrorist organizations by the secretary of state? What if that secretary of state was Hillary Clinton?</p>
<p>What if Clinton had a political interest in deposing the governments of Libya and Syria? What if her goal in fighting these secret wars was to claim triumph for herself over Middle Eastern despots? What if it is a federal crime to fight a private war against a foreign government? What if it is a federal crime to provide material assistance to terrorist organizations? What if these are crimes no matter who consents or approves?</p>
<p>What if, when asked about this while testifying to the Senate Armed Services Committee, Clinton professed ignorance? What if it is a federal crime for a witness to lie to or mislead Congress?</p>
<p>What if the outcome of Clinton's war in Libya has been the destruction of the Gadhafi government and ensuing chaos? What if that chaos has brought terror and death to many thousands of innocents in Libya? What if Clinton has failed to achieve any noticeable result with her secret war in Syria?</p>
<p>What if she managed these wars on an email system that was not secured in a government venue? What if she did that to keep her thoughts and actions secret from the president and from the State Department in case she failed to win the wars? What if she used a BlackBerry she bought at Walmart instead of a secure and encrypted government-issued phone?</p>
<p>What if her management of these wars on the private email system exposed national security secrets to anyone who could hack into her server or her router? What if the server or the router had been kept in the bathroom of an apartment of an employee of a computer company in Denver, Colo., and not under lock and key and armed guard in her home in New York as she has represented?</p>
<p>What if Clinton just doesn't care whether she has broken any federal laws, illegally caused the deaths of thousands of innocents, and profoundly jeopardized and misled the American people?</p>
<p>What if the American people do care about all this? What will they do about it?</p>Judge Andrew P. Napolltano2015-08-27T18:29:00ZThe Deceptions of Hillary ClintonJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Deceptions-of-Hillary-Clinton/903210724757657298.html2015-08-20T21:16:00Z2015-08-20T21:16:00Z<p>While the scandal surrounding the emails sent and received by Hillary Clinton during her time as U.S. secretary of state continues to grow, Clinton has resorted to laughing it off. This past weekend she told an audience of Iowa Democrats that she loves her Snapchat account because the messages automatically disappear. No one in the audience laughed.</p>
<p>Clinton admits deleting 30,000 government emails from her time in office. She claims they were personal, and that because they were also on a personal server, she was free to destroy them. Yet, federal law defines emails used during the course of one's work for the federal government as the property of the federal government.</p>
<p>She could have designated which of the government's emails were personal and then asked the government to send them to her and delete them from government servers. Instead she did the reverse. She decided which of her emails were governmental and sent them on to the State Department. Under federal law, that is not a determination she may lawfully make.</p>
<p>Yet, the 55,000 emails she sent to the feds were printed emails. By doing so, she stole from the government the metadata it owns, which accompanies all digital emails but is missing on the paper copies, and she denied the government the opportunity to trace those emails.</p>
<p>When asked why she chose to divert government emails through her own server, Clinton stated she believed it would enable her to carry just one mobile device for both personal and governmental emails. She later admitted she carried four such devices.</p>
<p>Then the scandal got more serious, as Clinton's lawyers revealed that after she deleted the 30,000 emails, and printed the 55,000 she surrendered to the feds, she had the server that carried and stored them professionally wiped clean.</p>
<p>She had already denied routing classified materials through her server: "I did not email any classified material to anyone on my email. ... (I) <strong>did not send classified material.</strong>"</p>
<p>Then, the inspector general of the State Department and the inspector general of the intelligence community, each independent of the other, found four classified emails from among a random sample of 40.</p>
<p>Then the State Department inspector general concluded that one of the four was in fact top secret. Since it discussed satellite imagery of a foreign country and since it revealed intercepts of communications among foreign agents, it received additional legal protections that were intended to assure that it was only discussed in a secure location and never shared with a foreign government, not even an ally.</p>
<p>When Clinton was confronted with these facts, she changed her explanation from "I did not send classified material" to "I never sent or never received <strong>any email marked classified</strong>." Not only is she continually changing her story, but she is being deceptive again. Emails are not "marked classified." They are marked "top secret" or "secret" or "confidential." Her explanations remind one of her husband's word-splitting playbook.</p>
<p>Last weekend the State Department located 305 of her undeleted emails that likely are in the top secret or secret or classified categories.</p>
<p>What should be the consequence of her behavior with the nation's most sensitive secrets?</p>
<p>If Clinton is indicted for failure to secure classified information, she will no doubt argue that if one of the above markings was not on the email, she did not know it was top secret. If she does make that incredible argument -- how could satellite photos of a foreign country together with communications intercepts of foreign agents possibly not be top secret? -- she will be confronted with a judicial instruction to the jury trying her.</p>
<p>The judge will tell the jury that the secretary of state is presumed to know what is top secret and what is not. The only way she could rebut that presumption is to take the witness stand in her own defense and attempt to persuade the jury that she was so busy, she didn't notice the nature of the secrets with which she was dealing.</p>
<p>Not only would such an argument be incredible coming from a person of her intellect and government experience, but it begs the question. That's because by using only her own server, she knowingly diverted all classified emails sent to her away from the government's secure venue. That's the crime.</p>
<p>Will she be indicted?</p>
<p>Consider this. In the past month, the Department of Justice indicted a young sailor who took a selfie in front of a sonar screen on a nuclear submarine and emailed the selfie to his girlfriend. It also indicted a Marine who sent an urgent warning to his superiors on his Gmail account about a dangerous Afghani spy who eventually killed three fellow Marines inside an American encampment. The emailing Marine was indicted for failure to secure classified materials. Gen. David Petraeus stored top-secret materials in an unlocked desk drawer in the study of his secured and guarded Virginia home and was indicted for the same crimes. And a former CIA agent was just sentenced to three years in prison for destroying one top-secret email.</p>
<p>What will happen if the FBI recommends that Clinton be indicted and the White House stonewalls? Will FBI Director Jim Comey threaten to resign as he threatened to do when President George W. Bush wanted him to deviate from accepted professional standards? Will Clinton get a pass? Will the public accept that?</p>
<p> </p>Judge Andrew P. Napolltano2015-08-20T21:16:00ZChris Christie vs. Rand PaulJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Chris-Christie-vs.-Rand-Paul/-359306227634007390.html2015-08-13T18:07:00Z2015-08-13T18:07:00ZThe dust-up between New Jersey Gov. Chris Christie and Kentucky Sen. Rand Paul over presidential fidelity to the Constitution -- particularly the Fourth Amendment -- was the most illuminating two minutes of the Republican debate.<br /><br />It is a well-regarded historical truism that the Fourth Amendment was written by victims of government snooping, the 1770s version. The Framers wrote it to assure that the new federal government could never do to Americans what the king had done to the colonists.<br /><br />What did the king do? He dispatched British agents and soldiers into the colonists' homes and businesses ostensibly looking for proof of payment of the king's taxes and armed with general warrants issued by a secret court in London.<br /><br />A general warrant did not name the person or place that was the target of the warrant, nor did it require the government to show any suspicion or evidence in order to obtain it. The government merely told the secret court it needed the warrant -- the standard was "governmental need" -- and the court issued it. General warrants authorized the bearer to search wherever he wished and to seize whatever he found.<br /><br />The Fourth Amendment requires the government to present to a judge evidence of wrongdoing on the part of a specific target of the warrant, and it requires that the warrant specifically describe the place to be searched or the person or thing to be seized. The whole purpose of the Fourth Amendment is to protect the right to be left alone -- privacy -- by preventing general warrants.<br /><br />The evidence of wrongdoing that the government must present in order to persuade a judge to sign a warrant must constitute probable cause. Probable cause is a level of evidence sufficient to induce a neutral judge to conclude that it is more likely than not that the government will find what it is looking for in the place it wants to search, and that what it is looking for will be evidence of criminal behavior.<br /><br />But the government has given itself the power to cut constitutional corners. The Foreign Intelligence Surveillance Act, the Patriot Act and the Freedom Act totally disregard the Fourth Amendment by dispensing with the probable cause requirement and substituting instead -- incredibly -- the old British governmental need standard.<br /><br />Hence, under any of the above federal laws, none of which is constitutional, the NSA can read whatever emails, listen to whatever phone calls in real time, and capture whatever text messages, monthly bank statements, credit card bills, legal or medical records it wishes merely by telling a secret court in Washington, D.C., that it needs them.<br /><br />And the government gets this data by area codes or zip codes, or by telecom or computer server customer lists, not by naming a person or place about whom or which it is suspicious.<br /><br />These federal acts not only violate the Fourth Amendment, they not only bring back a system the Founders and the Framers hated, rejected and fought a war to be rid of, they not only are contrary to the letter and spirit of the Constitution, but they produce information overload by getting all the data they can about everyone. Stated differently, under the present search-them-all regime, the bad guys can get through because the feds have more data than they can analyze, thus diluting their ability to focus on the bad guys.<br /><br />Among the current presidential candidates, only Paul has expressed an understanding of this and has advocated for fidelity to the Constitution. He wants the government to follow the Fourth Amendment it has sworn to uphold. He is not against all spying, just against spying on all of us. He wants the feds to get a warrant based on probable cause before spying on anyone, because that's what the Constitution requires. The remaining presidential candidates -- the Republicans and Hillary Clinton -- prefer the unconstitutional governmental need standard, as does President Obama.<br /><br />But Christie advocated an approach more radical than the president's when he argued with Paul during the debate last week. He actually said that in order to acquire probable cause, the feds need to listen to everyone's phone calls and read everyone's emails first. He effectively argued that the feds need to break into a house first to see what evidence they can find there so as to present that evidence to a judge and get a search warrant to enter the house.<br /><br />Such a circuitous argument would have made Joe Stalin happy, but it flunks American Criminal Procedure 101. It is the job of law enforcement to acquire probable cause without violating the Fourth Amendment. The whole purpose of the probable cause standard is to force the government to focus on people it suspects of wrongdoing and leave the rest of us alone. Christie wants the feds to use a fish net. Paul argues that the Constitution requires the feds to use a fish hook.<br /><br />Christie rejects the plain meaning of the Constitution, as well as the arguments of the Framers, and he ignores the lessons of history. The idea that the government must break the law in order to enforce it or violate the Constitution in order to preserve it is the stuff of tyrannies, not free people.Judge Andrew P. Napolltano2015-08-13T18:07:00ZThe Slaughter of BabiesJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Slaughter-of-Babies/34289100254410941.html2015-08-06T23:07:00Z2015-08-06T23:07:00Z<span>The recent broadcast of videotapes taken of persons employed at Planned Parenthood -- the prolific and notorious abortion provider -- has brought the issue of abortion to the national consciousness again and front and center to the Republican presidential primary campaign. The tapes were made secretly by a pro-life group determined to show to the world the dark side of Planned Parenthood's use of federal funds.</span><br /><span><br />What the world saw was terrifying and damning. The tapes are difficult to watch, just as any discussion of human slaughter is difficult to watch. If you have seen these tapes, you witnessed physicians and others talking about the profits Planned Parenthood is making in the sale of baby body parts, even though such sales are criminal under federal law.</span><br /><span><br />The cavalier demeanor of those who profit from this slaughter is chilling, and the moral punch in the nose to the Democratic Party is excruciating. That's because Planned Parenthood is virtually a branch of the Democratic Party. It has a lock on the federal treasury to the tune of $500 million per year. It pays for or performs more than 325,000 abortions a year, which is about one-third of all abortions in America. It contributes heavily to the campaigns of Democratic office seekers. You can see the cycle.</span><br /><span><br />Even though federal law has prohibited the use of federal funds for abortions for nearly 18 years, money is fungible. The Planned Parenthood folks may be baby killers, but they are not dumb. They know how to dedicate federal funds for maternal health and free up maternal health funds for the slaughter of babies -- and make it all look legal.</span><br /><span><br />The reason these tapes are so upsetting to the Democrats, and to some Republicans as well, is that they have convinced themselves that the fetus in the womb is not a person. Yet, watching their abortionists graphically discuss the monetary value of body parts and the physical manipulation of fully formed babies so as to maximize the harvesting of their organs ironically humanizes the body parts and the babies from which the parts came, and is thus so upsetting to those who deny fetal personhood.</span><br /><span><br />But this is more than upsetting -- it seriously challenges the underlying commitment of</span><span> </span><span id="OBJ_PREFIX_DWT691_com_zimbra_date" class="Object">today</span><span>'s Democratic Party that the fetus is not a person. This is, of course, the central holding of the Supreme Court's 1973 decision in Roe v. Wade. Just as in Dred Scott v. Sandford, wherein the court held in 1857 that African-Americans were not persons, so did Roe v. Wade make that holding for fetuses.</span><br /><span><br />And the stated reason for the holding was the absence of consensus in 1973 among philosophers, physicians, theologians and scientists about when life begins. Yet, the duty of the court is to say what the Constitution means, not to count noses. Roe is the only Supreme Court decision in history grounded on the absence of discernible consensus among the populace.</span><br /><span><br />Is the fetus in the womb a person? Before answering this, consider the depravity to which we have sunk due to its legal non-personhood. The slaughter of babies, some where it is legal in their ninth month of gestation, the sale of their body parts, and the taxpayer financing of this have become so morose that even their staunchest supporters cannot confront these realities publicly for fear of losing political support.</span><br /><span><br />Is the fetus in the womb a person? Before answering this, consider the danger of a Supreme Court possessing the power to declare any human offspring to be a non-person. Two months ago, we witnessed the spectacle of the court finding four plain English words -- "established by the States" -- to be ambiguous and, 21 pages later, telling us that legally those words do not mean what they say. If the court can change the meaning of ordinary words, can it change the meaning of life?</span><br /><span><br />It has.</span><br /><span><br />Is the fetus in the womb a person? Of course it is. It has two fully human parents and the fully actualizable human genome to achieve post-natal existence. The single-cell zygote in the mother's womb came from her flesh and cannot be anything but a human person. For 600 years, the law has permitted the fetus in the womb to inherit property. How could that be if the fetus were not a human person? If you kill a pregnant woman and the fetus dies, you can be charged with the murder of two persons. If the reason for government in the first place is to protect rights, the government's prime obligation is to protect the rights of persons to live.</span><br /><span><br />The Democrats are not alone at fault here. In the first six years of the presidency of George W. Bush, when the Republicans controlled the White House and the Congress, numerous efforts were made to introduce a simple one-line statute: "The fetus in the womb shall be, for all constitutional and legal purposes, a person." Republican congressional leaders kept all such proposals from being voted upon.</span><br /><span><br />But seeing is believing. The tapes are the abortionists' nightmare, because in their wanton slaughter they have let slip the utter humanity of their victims. And the souls of the Holy Innocents who have been slaughtered before drawing their first breaths are no doubt praying for the conversion of the hearts and the salvation of the souls of those who killed them.</span>Judge Andrew P. Napolltano2015-08-06T23:07:00ZHillary Lies AgainJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hillary-Lies-Again/9695009675277801.html2015-07-30T18:55:00Z2015-07-30T18:55:00ZIn a column I wrote in early July, based on research by my colleagues and my own analysis of government documents and eyewitness statements, I argued that in 2011 and 2012 then-Secretary of State Hillary Clinton waged a secret war on the governments of Libya and Syria, with the approval of President Obama and the consent of congressional leadership from both parties and in both houses of Congress. <br /><br />I did err in that column with respect to an arms dealer named Marc Turi. I regret the error and apologize for it. I wrote that Turi sold arms to Qatar as part of Clinton's scheme to get them into the hands of rebels. A further review of the documents makes it clear that he applied to do so but was denied permission, and so he did not sell arms to Qatar. Other arms dealers did.<br /><br />I also erred when referring to Qatar as beholden to Washington. In fact, Qatar is in bed with the Muslim Brotherhood and is one of the biggest supporters of global jihad in the world -- and Clinton, who approved the sales of arms to Qatar expecting them to make their way to Syrian and Libyan rebels, as they did, knew that. She and her State Department caused American arms to come into the possession of known al-Qaida operatives, a few of whom assassinated U.S. Ambassador Chris Stevens.<br /><br />When Sen. Rand Paul, R-Ky., asked Clinton in January 2013 at a Senate Armed Services Committee hearing whether she knew of any weapons coming from the U.S. and going to rebels in the Middle East, she denied such knowledge. She either has a memory so faulty that she should not be entrusted with any governmental powers, or she knowingly lied.<br /><br />It gets worse.<br /><br />It now appears that Clinton was managing her war using emails that she diverted through a computer server owned by her husband's charitable foundation, even though some of her emails contained sensitive and classified materials. This was in direct violation of federal law, which requires all in government who possess classified or sensitive materials to secure them in a government-approved venue.<br /><br />The inspector general of the intelligence community and the inspector general of the State Department each have reviewed a limited sampling of her emails that were sent or received via the Clinton Foundation server, and both have concluded that materials contained in some of them were of such gravity that they were obliged under federal law to refer their findings to the FBI for further investigation.<br /><br />The FBI does not investigate for civil wrongdoing or ethical lapses. It investigates behavior that may be criminal or that may expose the nation's security to jeopardy. It then recommends either that indictments be sought or the matter be addressed through non-prosecutorial means. Given Clinton's unique present position -- as the president's first secretary of state and one who seeks to succeed him, as well as being the wife of one of his predecessors -- it is inconceivable that she could be prosecuted as Gen. David Petraeus was (for the crime of failing to secure classified materials) without the personal approval of the president himself.<br /><br />Let's be realistic and blunt: If the president wants Clinton prosecuted for failing to secure classified materials, then she will be, no matter the exculpatory evidence or any political fallout. If he does not want her prosecuted, then she won't be, no matter what the FBI finds or any political fallout.<br /><br />I have not seen the emails the inspectors general sent to the FBI, but I have seen the Clinton emails, which are now in the public domain. They show Clinton sending or receiving emails to and from her confidante Sid Blumenthal and one of her State Department colleagues using her husband's foundation's server, and not a secure government server. These emails address the location of French jets approaching Libya, the location of no-fly zones over Libya and the location of Stevens in Libya. It is inconceivable that an American secretary of state failed to protect and secure this information.<br /><br />But it is not inconceivable that she would lie about it.<br /><br />Federal statutes provide for three categories of classified information. "Top secret" is data that, if revealed, could likely cause grave damage to national security. "Secret" is data that, if revealed, could likely cause serious damage to national security. "Confidential" is data that, if revealed, could likely cause some damage to national security. Her own daily calendars, which she regularly emailed about, are considered confidential.<br /><br />Clinton has repeatedly denied ever sending or receiving data in any of these categories. She probably will argue that an email that fails to use the terminology of the statute cannot be deemed classified. Here the inspectors general have corrected her. It is the essence of the data in an email -- its potential for harm if revealed -- that makes its contents classified and the failure to protect it a crime -- not the use of a magic word or phrase in the subject line.<br /><br />She is no doubt lying again, just as she did to the Senate Armed Services Committee. Yet the question remains: Why did she use her husband's foundation's computer server instead of a government server, as the law requires? She did that so she could obscure what the server recorded and thus be made to appear different according to history from how she was in reality. Why did she lie about all this? Because she thinks she can get away with it.<br /><br />Will American voters let her?<br /><br />Judge Andrew P. Napolltano2015-07-30T18:55:00ZHillary's Secret WarJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Hillarys-Secret-War/391047183404941656.html2015-07-03T18:48:00Z2015-07-03T18:48:00Z<p>In the course of my work at Fox News, I am often asked by colleagues to review and explain documents and statutes. Recently, in conjunction with my colleagues Catherine Herridge, our chief intelligence correspondent, and Pamela Browne, our senior executive producer, I read the transcripts of an interview Browne did with a man named Marc Turi, and Herridge asked me to review emails to and from State Department and congressional officials during the years when Hillary Clinton was the secretary of state.</p>
<p>What I saw has persuaded me beyond a reasonable doubt and to a moral certainty that Clinton provided material assistance to terrorists and lied to Congress in a venue where the law required her to be truthful. Here is the backstory.</p>
<p>Turi is a lawfully licensed American arms dealer. In 2011, he applied to the Departments of State and Treasury for approvals to sell arms to the government of Qatar. Qatar is a small Middle Eastern country whose government is so entwined with the U.S. government that it almost always will do what American government officials ask of it.</p>
<p>In its efforts to keep arms from countries and groups that might harm Americans and American interests, Congress has authorized the Departments of State and Treasury to be arms gatekeepers. They can declare a country or group to be a terrorist organization, in which case selling or facilitating the sale of arms to them is a felony. They also can license dealers to sell.</p>
<p>Turi sold hundreds of millions of dollars' worth of arms to the government of Qatar, which then, at the request of American government officials, were sold, bartered or given to rebel groups in Libya and Syria. Some of the groups that received the arms were on the U.S. terror list. Thus, the same State and Treasury Departments that licensed the sales also prohibited them.</p>
<p>How could that be?</p>
<p>That's where Clinton's secret State Department and her secret war come in. Because Clinton used her husband's computer server for all of her email traffic while she was the secretary of state, a violation of three federal laws, few in the State Department outside her inner circle knew what she was up to.</p>
<p>Now we know.</p>
<p>She obtained permission from President Obama and consent from congressional leaders in both houses of Congress and in both parties to arm rebels in Syria and Libya in an effort to overthrow the governments of those countries.</p>
<p>Many of the rebels Clinton armed, using the weapons lawfully sold to Qatar by Turi and others, were terrorist groups who are our sworn enemies. There was no congressional declaration of war, no congressional vote, no congressional knowledge beyond fewer than a dozen members, and no federal statute that authorized this.</p>
<p>When Sen. Rand Paul, R-Ky., asked Clinton at a public hearing of the Senate Armed Services Committee on Jan. 23, 2013, whether she knew about American arms shipped to the Middle East, to Turkey or to any other country, she denied any knowledge. It is unclear whether she was under oath at the time, but that is legally irrelevant. The obligation to tell the truth, the whole truth and nothing but the truth to Congress pertains to all witnesses who testify before congressional committees, whether an oath has been administered or not. (Just ask Roger Clemens, who was twice prosecuted for misleading Congress about the contents of his urine while not under oath. He was acquitted.)</p>
<p>Here is her relevant testimony.</p>
<p><em><strong>Paul</strong>: My question is ... is the U.S. involved with any procuring of weapons, transfer of weapons ... buying, selling ... anyhow transferring weapons to Turkey ... out of Libya?</em></p>
<p><em><strong>Clinton</strong>: To Turkey? ... I will have to take that question for the record. Nobody's ever raised that with me. I, I...</em></p>
<p><em><strong>Paul</strong>: It's been in news reports that ships have been leaving from Libya and that they may have weapons ... and what I'd like to know is ... the (Benghazi) annex that was close by... Were they involved with procuring, buying, selling, obtaining weapons ... and were any of these weapons transferred to other countries ... any countries, Turkey included?</em></p>
<p><em><strong>Clinton</strong>: Senator, you will have to direct that question to the agency that ran the (Benghazi) annex. And I will see what information is available and ... ahhhh...</em></p>
<p><em><strong>Paul</strong>: You are saying you don't know...</em></p>
<p><em><strong>Clinton</strong>: I do not know. I don't have any information on that.</em></p>
<p>At the time that Clinton denied knowledge of the arms shipments, she and her State Department political designee Andrew Shapiro had authorized thousands of shipments of billions of dollars' worth of arms to U.S. enemies to fight her secret war. Among the casualties of her war were U.S. Ambassador to Libya Chris Stevens and three colleagues, who were assassinated at the American consulate in Benghazi, Libya, by rebels Clinton armed with American military hardware in violation of American law.</p>
<p>This secret war and the criminal behavior that animated it was the product of conspirators in the White House, the State Department, the Treasury Department, the Justice Department, the CIA and a tight-knit group of members of Congress. Their conspiracy has now unraveled. Where is the outrage among the balance of Congress?</p>
<p>Hillary Clinton lied to Congress, gave arms to terrorists and destroyed her emails. How much longer can she hide the truth? How much longer can her lawlessness go unchallenged and unprosecuted? Does she really think the American voters will overlook her criminal behavior and put her in the White House where she can pardon herself?</p>Judge Andrew P. Napolltano2015-07-03T18:48:00ZProtecting Hatred Preserves FreedomJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Protecting-Hatred-Preserves-Freedom/-601241224569485920.html2015-06-25T16:57:00Z2015-06-25T16:57:00ZThe tragedy of a mass murder in Charleston, S.C., last week, obviously motivated by racial hatred, has raised anew the issue of the lawfulness of the State expressing an opinion by flying a Confederate flag at the Statehouse, and the constitutionality of the use of the First Amendment to protect hate speech and hate groups. The State has no business expressing opinions on anything, and it is required to protect hate. Here is the law.<br /><br />Let's start with the proposition that hatred of persons is a profound disorder, and it is no doubt motivated by far deeper errors of thought and judgment than admiration for a flag. I recognize that to some in our society, the Confederate flag represents resistance to federal authority enforced by military aggression; while to others, it represents racial oppression under color of law bringing about the worst violations of the natural rights of born persons in American history -- namely slavery. To me, it represents both. Yet, the government has no business flying it.<br /><br />In a lawsuit brought against the State of Texas seeking to compel Texas to offer automobile license plates bearing the Confederate flag, the Supreme Court in dismissing the suit ruled just two weeks ago that the government enjoys the same freedom of speech as do persons. This is a novel and dangerous idea. It places government -- an artificial creature based on temporary consensus and a monopoly of force -- on the same plane as human beings, who are natural creatures with immortal souls endowed by our Creator with natural rights.<br /><br />Natural rights, foremost among which after life itself is freedom of expression, are gifts from God. They are not manmade and hence cannot be transferred to a manmade entity. They are as natural to us as are the fingers on our hands. We don't need a government permission slip in order to exercise them.<br /><br />In the case of speech, it is especially dangerous to accord the natural rights of persons to the government because the state can use its monopoly of force to silence, drown out or intimidate the speech of any persons it hates and fears. When the state speaks, its expressions have an aura of legitimacy and can be used for narrow, sectarian, even hateful purposes. But the whole purpose of the First Amendment is to keep the government out of the business of speech.<br /><br />If I were in the South Carolina legislature, I'd vote to remove the Confederate flag from the Statehouse because I'd silence all government speech except that which is universally accepted (like the American flag), utterly innocuous (like the library is closed on Sundays) or absolutely necessary for governance (like speed limits on state roads). Otherwise, who cares what the government thinks?<br /><br />The First Amendment to the Constitution also protects the rights of every person to embrace hatred. It guarantees all persons the freedom of thought, expression and association. Thought and association are guaranteed unconditionally. Imagine the dangers of the government telling us how to think.<br /><br />The rule on speech is that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to address it before the violence it suggests may come about. Stated differently, the First Amendment absolutely bars the government from interference with a person's thoughts or associations, and permits interference with a person's expressions only if necessary to prevent immediate lawless violence when there is no time for more expression to do so first.<br /><br />But the government may never, consistent with the First Amendment, interfere with expression because it despises or fears the views animating the expressions. This temptation is another danger of according the government the freedom of speech.<br /><br />Hatred, though invariably destructive to those it animates, is a protected mode of thought and expression and may form the basis for association. Groups may be formed based on hate, and the government may not interfere with them because it hates and fears their hatred. Some hate groups are merely a vessel for folklore and group comfort; some are willing to use violence to advance their nefarious beliefs.<br /><br />But the willingness alone to use violence is not criminal; it is only the actual use of violence that is. Thus, it is the manifestation of hatred as lawless violence that may be prosecuted, but the manifestation of hatred as a unifying idea is protected and may not be prosecuted.<br /><br />The remedy for hatred is reason. Hatred of persons is always unreasonable. It takes a characteristic of birth -- color, ethnicity, religion, for example -- and unreasonably ascribes mythological and unitary traits to it. Those ascribed traits usually appeal to the base fears and biases of the hater, feed his weaknesses, and provide him with a mental haven for his failings. Yet, reason and overwhelming opinion to the contrary can dilute hatred.<br /><br />Hatred sometimes provides a dark place of comfort for the weak, and it can be addictive. We must guard against its allurements. Lord Byron in "Don Juan" warned of hatred's irony:<br /><br /> Now hatred is by far<br /> The longest pleasure.<br /> Men love in haste, but they<br /> Detest at leisure.<br /><br />Yet, God, too, hates. He hates sin, and we, as well, must hate sin. Like the families of those murdered in Charleston, we must imitate our Creator: We must love the sinner and the hater.Judge Andrew P. Napolltano2015-06-25T16:57:00ZWhat If They Are Hiding the Truth?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-If-They-Are-Hiding-the-Truth/382791817058614141.html2015-06-18T21:42:00Z2015-06-18T21:42:00Z<p><span>What if President Obama secretly agreed with others in the government in 2011 to provide arms to rebels in Libya and Syria? What if the scheme called for American arms merchants to sell serious American military hardware to the government of Qatar, which would and did transfer it to rebel groups? What if the U.S. Department of State and the U.S. Department of the Treasury approved those sales?</span><br /><span><br />What if the approvals were kept secret because some of those rebel groups were characterized by the same Departments of State and Treasury as terrorist organizations? What if the ultimate recipients of those arms were the militants and monsters in al-Qaida and ISIS who have slain and tortured innocents?</span><br /><span> <br /></span><span>What if this scheme is defined in federal law as providing material assistance to terrorist organizations? What if that's a felony? What if that's the same felony for which the U.S Department of Justice has prosecuted dozens of persons merely for attempting? What if this scheme was not a mere attempt, but an actual arming of terrorists?</span><br /><span><br />What if this scheme was approved not only by the president, but also by Secretary of State Hillary Clinton? What if the idea of doing this was hers? What if congressional leaders in both houses of Congress and from both parties signed off on this? What if the remaining members of Congress and the American people were kept in the dark about this scheme? What if those who agreed to permit this scheme knew that the arms were destined for terrorist organizations and they were flirting with a criminal conspiracy to violate federal law?</span><br /><span><br />What if Clinton was asked by senators while under oath about the delivery of arms made by American manufacturers to ports in the Middle East and she denied knowing anything about it? What if she knew she had personally approved the deliveries but falsely claimed she had no knowledge?</span><br /><span><br />What if this arms-to-terrorists scheme began to unravel? What if the rebels were really bad guys? What if there are many rebel/terrorist groups with varying degrees of hatred for the United States? What if some of the groups that received American arms are so hateful of the U.S. that they will bite the hands that fed them?</span><br /><span><br />What if Clinton's job was to prevent American arms from slipping into the hands of terrorists? What if she secretly did the opposite of what her job required? What if she and the president and the other conspirators viewed themselves as being above the law? What if they thought the terrorist groups they were arming would overthrow the Gadhafi government in Libya and the Assad government in Syria? What if they believed those revolutions would be greeted with cheers in the West? What if they hoped the cheers would be for them?</span><br /><span><br />What if their goal of regime change succeeded in Libya, and yet the result was chaos? What if under Col. Gadhafi Libya had been a stable U.S. ally? What if</span><span> </span><span id="OBJ_PREFIX_DWT875_com_zimbra_date" class="Object">today</span><span> </span><span>there is no central government in Libya and it is ruled by gangs and tribes and militias?</span><br /><span><br />What if the American assistance to Syrian rebels became known to the Russians? What if that knowledge prompted Russian President Putin to help his ally, President Assad of Syria? What if the American and Russian introduction of heavy military hardware into the Syrian civil war has resulted in prolonged war and more deaths of innocents and destruction of property, not less?</span><br /><span><br />What if one of the terrorist groups that received American arms from this scheme attacked the American consulate in Benghazi, Libya, because it wanted more arms from the U.S. and it knew arms were stored there? What if that attack killed U.S. Ambassador to Libya Chris Stevens and three of his colleagues? What if this was a nightmare scenario for the conspirators? What if the conspirators now fear that the truth of their plot will become known?</span><br /><span><br />What if the tragedy at Benghazi was unwelcome but not unforeseen? What if the conspirators knew of the risks to innocent lives attendant upon breaking the law by giving arms to madmen? What if members of Congress who were kept in the dark about the arms-to-terrorists scheme were outraged over Benghazi? What if leaders of the House of Representatives, some of whom were conspirators, formed a committee to investigate how the murder of Stevens came about?</span><br /><span><br />What if some members of that committee already know that Stevens and the others were murdered with U.S. weapons illegally given to U.S. enemies secretly by U.S. government officials? What if the stated purpose of the committee -- to seek the truth about Benghazi -- is not the true purpose? What if the real purpose of that committee is to suppress the truth so that the president and Clinton and the other conspirators do not get indicted? What if the truth is the last thing the conspirators want to see come out?</span><br /><span><br />What do we do about lawless government by secrecy? What do we do about government officials who act as if they are above the law? What do we do if one of them lives in the White House and controls all federal prosecutions? What do we do if another of them is presently on her way there?</span></p>Judge Andrew P. Napolltano2015-06-18T21:42:00ZAllowing the Patriot Act to ExpireJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Allowing-the-Patriot-Act-to-Expire/-635456137729575858.html2015-06-11T07:00:00Z2015-06-11T07:00:00Z<p>Last week, Republicans and Democrats in Congress joined President Barack Obama in congratulating themselves for taming the National Security Agency's voracious appetite for spying. By permitting one section of the Patriot Act to expire and by replacing it with the USA Freedom Act, the federal government is taking credit for taming beasts of its own creation.</p>
<p>In reality, nothing substantial has changed.</p>
<p>Under the Patriot Act, the NSA had access to and possessed digital versions of the content of all telephone conversations, emails and text messages sent between and among all people in America since 2009. Under the USA Freedom Act, it has the same. The USA Freedom Act changes slightly the mechanisms for acquiring this bulk data, but it does not change the amount or nature of the data the NSA acquires.</p>
<p>Under the Patriot Act, the NSA installed its computers in every main switching station of every telecom carrier and Internet service provider in the U.S. It did this by getting Congress to immunize the carriers and providers from liability for permitting the feds to snoop on their customers and by getting the Department of Justice to prosecute the only CEO of a carrier who had the courage to send the feds packing.</p>
<p>In order to operate its computers at these facilities, the NSA placed its own computer analysts physically at those computers 24/7. It then went to the U.S. Foreign Intelligence Surveillance Court and asked for search warrants directing the telecoms and Internet service providers to make available to it all the identifying metadata -- the times, locations, durations, email addresses used and telephone numbers used -- for all callers and email users in a given ZIP code or area code or on a customer list.</p>
<p>The first document revealed by Edward Snowden two years ago was a FISA court search warrant directed to Verizon ordering it to make available to NSA agents the metadata of all its customers -- more than 113 million at the time. Once the court granted that search warrant and others like it, the NSA computers simply downloaded all that metadata and the digital recordings of content. Because the FISA court renewed every order it issued, this arrangement became permanent.</p>
<p>Under the USA Freedom Act, the NSA computers remain at the carriers' and service providers' switching offices, but the NSA computer analysts return to theirs; and from there they operate remotely the same computers they were operating directly in the Patriot Act days. The NSA will continue to ask the FISA court for search warrants permitting the download of metadata, and that court will still grant those search warrants permitting the downloading. And the NSA will continue to take both metadata and content.</p>
<p>The Supreme Court has ruled consistently that the government must obtain a search warrant in order to intercept any nonpublic communication. The Constitution requires probable cause as a precondition for a judge to issue a search warrant for any purpose, and the warrant must "particularly (describe) the place to be searched, and the persons or things to be seized." Because this is expressly set forth in the Constitution itself, Congress and the president are bound by it. They cannot change it. They cannot avoid or evade it.</p>
<p>Probable cause is evidence about a person or place sufficient to permit a judge to conclude that evidence of a crime will probably be found. Both the Patriot Act and the USA Freedom Act disregard the "probable cause" standard and substitute instead a "government need" standard. This is, of course, no standard at all, as the NSA has claimed under the Patriot Act -- and the FISA court bought the argument -- that it needs all telephone calls, all emails and all text messages of all people in America. Today it may legally obtain them by making the same claim under the USA Freedom Act.</p>
<p>When politicians tell you that the NSA needs a court order in order to listen to your phone calls or read your emails, they are talking about a FISA court order that is based on government need -- not a constitutional court order, which can only be based on probable cause. This is an insidious and unconstitutional bait and switch.</p>
<p>All this may start with the NSA, but it does not end there. Last week, we learned that the FBI is operating low-flying planes over 100 American cities to monitor folks on the streets and intercept their cellphone use -- without any search warrants. Earlier this week, we learned that the Drug Enforcement Administration has intercepted the telephone calls of more than 11,000 people in three years -- without any search warrants. We already know that local police have been using government surplus cell towers to intercept the cellphone signals of innocent automobile drivers for about a year -- without search warrants.</p>
<p>How dangerous this is. The Constitution is the supreme law of the land. It applies in good times and in bad, in war and in peace. It regulates the governed and the governors. Yet if the government that it regulates can change it by ordinary legislation, then it is not a constitution but a charade.</p>
<p>Suppose the Congress wants to redefine the freedom of speech or the free exercise of religion or the right to keep and bear arms, just as it did the standards for issuing search warrants. What is the value of a constitutional guarantee if the people into whose hands we repose the Constitution for safe keeping can change it as they see fit and negate the guarantee?</p>
<p>What do you call a negated constitutional guarantee? Government need.</p>
<p> </p>Judge Andrew P. Napolltano2015-06-11T07:00:00ZGive Me Liberty, or...Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Give-Me-Liberty-or.../232640306368709943.html2015-06-04T15:51:00Z2015-06-04T15:51:00ZIn 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.<br /><br />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.<br /><br />On <span id="OBJ_PREFIX_DWT67_com_zimbra_date" class="Object"><span id="OBJ_PREFIX_DWT68_com_zimbra_date" class="Object">June 1</span></span>, 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.<br /><br />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.<br /><br />The data amassed thereby is so vast that the government cannot sift through it quickly or effectively enough to stop such notorious events as the Boston Marathon bombings, the Ft. Hood massacre and the attempted massacre last month outside of Dallas. The Justice Department acknowledged this last month when it revealed that all this spying has not succeeded in stopping any terrorist plots and has not aided any federal prosecutions of terrorism.<br /> <br />Then why do it? Because the feds want to calm American nerves by giving the impression that they are doing something -- even though we know that they know that what they are doing fails to keep us safe. They are giving us a false impression. But they owe us the truth, not falsehoods designed to make themselves look like they are doing what they claim. Their spying has failed to enhance our safety.<br /><br />It also has failed to protect our freedoms. The Constitution requires probable cause as a precondition for all search warrants. That is a level of evidence about the place to be searched or the person or thing to be seized sufficient to induce a judge to conclude that a crime probably has been committed. Without this probable cause requirement, nothing would stop the government from searching and seizing whatever it wants. Yet that is where we are <span id="OBJ_PREFIX_DWT69_com_zimbra_date" class="Object"><span id="OBJ_PREFIX_DWT70_com_zimbra_date" class="Object">today</span></span>. The NSA's unconstitutional standard of "government need" reinstitutes the general warrants -- search where you wish and seize what you find -- which the Fourth Amendment was written to prohibit.<br /><br />Both the Patriot Act and the Freedom Act, the substitute law enacted by Congress, do away with the probable cause requirement. Both of those laws permit the FISA court to issue general warrants based on the government's needs, rather than probable cause. It is the government-need standard, which is no standard at all, that has resulted in spying on all persons all the time.<br /><br />When Section 215 of the Patriot Act expired, the NSA's legal (yet unconstitutional) authority to spy did not. The propaganda that its computers were shut down is false. Section 702 of the FISA law and President Bush's <span id="OBJ_PREFIX_DWT71_com_zimbra_date" class="Object"><span id="OBJ_PREFIX_DWT72_com_zimbra_date" class="Object">October 2001</span></span> executive order were and are still valid, and both have been interpreted to unleash the NSA.<br /><br />Section 702 permits warrantless surveillance of Americans who speak with foreigners, and the NSA has gotten FISA warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses all persons in the United States. Bush's executive order was given to all military intelligence agencies -- of which the NSA is but one. It instructed the military to intercept the calls and emails of whatever Americans it needs to listen in upon to enhance safety. That executive order still stands. This is why the hand wringing and false claims that the NSA computers went dark is untruthful. The computers violate our privacy and assault our liberty and fail to enhance our safety, but they are not dark.<br /><br />Last week, one of the pro-spying politicians was clever, even cute, when he issued the one-liner: "You can't enjoy civil liberties from a coffin." His statement was a craven articulation of failure. The government's job is to keep us free and safe. If it keeps us safe but not free, it has failed to do its job. <span id="OBJ_PREFIX_DWT73_com_zimbra_date" class="Object"><span id="OBJ_PREFIX_DWT74_com_zimbra_date" class="Object">Today</span></span> it does neither. I suggest to him Patrick Henry on this: "Give me liberty or give me death."<br /><br />Which one-liner better embodies American values, history and traditions?Judge Andrew P. Napolltano2015-06-04T15:51:00ZSaving the FourthJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Saving-the-Fourth/-785094361786739172.html2015-05-29T03:39:00Z2015-05-29T03:39:00Z<p><span>The Patriot Act has a bad pedigree and an evil history. In the fearful days immediately following 9/11, the Department of Justice quickly sent draft legislation to Congress that, if enacted, would have permitted federal agents to violate their oaths to uphold the Constitution by writing their own search warrants. The draft subsequently was revealed to have been written before 9/11, but that's another story.</span><br /><span><br />The House Judiciary Committee reviewed the legislation and revised it so that it would meet Fourth Amendment norms. The revised version permitted federal agents to write their own search warrants for business records, but the warrants could be challenged by the custodian of the records or by the person whose records were being sought. Because the records were in the hands of a third party, they were in no danger of destruction.</span><span> </span><br /><span><br />The Fourth Amendment was written largely to assure that the general warrants British soldiers used to search the colonists' homes would never be lawful in the United States. General warrants were issued by secret courts in London based on the government's needs, not on evidence of wrongdoing. They authorized the bearer to search wherever he wished and seize whatever he found.</span><br /><span><br />In order to protect the natural right to be left alone -- privacy -- the Framers enacted standards in the Fourth Amendment that required the government to produce evidence about the person whose records it wants -- called probable cause -- and present that evidence to a judge when it wants a search warrant. If granted, the Constitution requires that the warrant particularly describe the place to be searched or the person or thing to be seized.</span><br /><span><br />After the House Judiciary Committee took all this into account in its redrafting of the proposed Patriot Act, the House Republican leadership and the George W. Bush White House pulled a fast one. They switched the painstakingly negotiated version of the Patriot Act for the original version and posted the original version on the House intranet, and leadership scheduled a vote within the hour of posting.</span><br /><span><br />It is safe to say that no member of the House read the Patriot Act in that hour. It takes about 20 hours to read, as it is hundreds of pages in length, and it amends dozens of prior statutes that also must be read. Most House members clearly never knew what they were authorizing. The only negotiated-for provision that survived the switch was the sunset provision of section 215.</span><br /><span><br />Section 215 only authorizes the feds to write their own search warrants for business records and for surveillance of so-called lone-wolf terrorists no matter what telephone they may use. The Bush and Obama administrations secretly persuaded the secret Foreign Intelligence Surveillance Act (FISA) court that somehow section 215 also permitted the NSA to acquire bulk data from telephone and computer use based on the government's needs, not based on probable cause.</span><br /><span><br />Bulk data is undifferentiated as to persons. Rather, it is collected by zip code or area code or service provider customer base. Section 215 expires at the end of this week.</span><br /><span><br />The U.S. Court of Appeals for the Second Circuit, the second highest court in the land, declared the collection of bulk data under section 215 to be illegal. The court ruled that the language of section 215 does not authorize bulk data collection, and no section of the Patriot Act does. That court gave Congress until</span><span> </span><span id="OBJ_PREFIX_DWT2196_com_zimbra_date" class="Object">June 1</span><span> </span><span>to clarify the language. If Congress fails to do so by</span><span> </span><span id="OBJ_PREFIX_DWT2197_com_zimbra_date" class="Object">June 1</span><span>, the court will entertain applications to bar the NSA from collecting bulk data, and it indicated it would likely grant those applications.</span><br /><span><br />Last week, the House voted to revise section 215, and the Senate did not. Thus, it is likely to expire on</span><span> </span><span id="OBJ_PREFIX_DWT2200_com_zimbra_date" class="Object">Sunday</span><span> </span><span>night.</span><br /><span><br />President Obama, who falsely claims to be opposed to the collection of bulk data, can stop it with his signature, but he has not done so. He claims to favor the House version of surveillance, which has ridiculously been dubbed the Freedom Act.</span><br /><span><br />The Freedom Act would get the NSA's computer geeks physically out of the facilities of telecoms and computer servers, but would let them back in digitally with the FISA court's approval, and that approval is not conditioned on probable cause. Rather, it is to be granted whenever the NSA needs the data. In the 14 years of all this spying, the NSA has made more than 34,000 requests of the FISA court; only 12 have been denied.</span><br /><span><br />If section 215 expires next week, the feds will need individualized search warrants in order to listen to phone calls. They already have been getting individualized search warrants for the phone calls and emails of potential lone-wolf terrorists and for the business records of suspected terrorist groups and those whom they have successfully prosecuted for terrorist acts.</span><br /><span><br />If all of the above is not enough to induce anyone in Congress faithful to the Constitution to reject extending section 215, perhaps the findings of the inspector general of the Department of Justice itself will. Late last week, he released a report in which he found that<em> the bulk collection of data has not stopped a single act of terror or aided a single federal terrorism prosecut</em>ion since the Patriot Act became law on</span><span> </span><span id="OBJ_PREFIX_DWT2202_com_zimbra_date" class="Object">October 26, 2001</span><span>.</span><br /><span><br />The government's bulk collection of data must go. It assaults freedoms, and it fails to enhance our safety.</span></p>Judge Andrew P. Napolltano2015-05-29T03:39:00ZWhat If We Didn't Have a Constitution?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-If-We-Didnt-Have-a-Constitution/-615565026413191204.html2015-05-21T21:14:00Z2015-05-21T21:14:00Z<p>What if we didn't have a Constitution? What if the government were elected by custom and tradition, but not by law? </p>
<p>What if election procedures and official titles and government responsibilities merely followed those that preceded them, and not because any of this was compelled by law, but because that's what folks came to expect?</p>
<p>What if those elected to office, and those appointed to it, as well, took oaths to uphold the Constitution? What if those who took the oaths promised fidelity to the Constitution? What if the Constitution declares itself to be the supreme law of the land? What if the supreme law of the land means what it says?</p>
<p>What if all in government, from presidents to park rangers, from generals to janitors, from judges to jail guards, take substantially the same oath? What if very few who have taken their oaths take them seriously? What if very few who have taken their oaths have actually read the Constitution? What if very few who have taken their oaths understand the values the Constitution upholds?</p>
<p>What if even fewer understand the historical, moral and legal bases for those values? What if most who took those oaths did so expecting someone else in government to tell them what the Constitution means and how to deal with it?</p>
<p>What if the whole purpose of the Constitution is to limit the government, not to unleash it?</p>
<p>What if the plain language of the Constitution puts clear limits on what the government in America may lawfully do? What if those in government began cutting constitutional corners about 100 years ago and overlooked prohibitions and limitations in the Constitution because they enjoyed exercising power over others and because they thought they knew what was best for everyone?</p>
<p>What if those prohibitions and limitations -- some of which were in the corners that were cut -- were written into the Constitution intentionally to keep the government off the backs of the people?</p>
<p>What if personal liberty is the birthright of all persons? What if government is essentially the negation of that liberty?</p>
<p>What if the Constitution represents the value judgment of Americans that our rights are higher in value than the government's powers to interfere with them? What if those who wrote the Constitution believed that personal liberty is the default position and government power the exception? What if the Constitution means that our rights should be maximum and government minimum?</p>
<p>What if our rights are natural components of our humanity? What if that humanity is a gift from God? What if we were created in His image and likeness? What if the greatest likeness we have with Him and the greatest gift from Him is free will? What if we are perfectly free as He is perfectly free?</p>
<p>What if He created us with such free will that we are free to reject Him? What if we are so free that we are free to reject the government? What logic could underlie an argument that we are free to reject the Creator who made us but not free to reject the government we created?</p>
<p>What if a government that rejects its own Constitution were to be rejected by the people? What if the people have had enough of politicians and government leaders who promise safety and demand the surrender of liberty? What if liberty once surrendered is never returned? What if the liberty-for-safety trade is a facade that impairs both liberty and safety?</p>
<p>What if that trade makes government's job easier, but does not keep us safer? What if the Constitution was written to keep the government's job from becoming too easy? What if it is easier to listen to everyone's phone calls than only to those as to whom the government has probable cause to listen? What if the Constitution recognizes that liberty is personal and cannot be sacrificed by a majority vote of representatives, but only by individual consent?</p>
<p>What if the greatest right protected by the Constitution is the right to be left alone, the right to be oneself, the right to answer only to one's own free will? What if the Framers who wrote the Constitution so valued the right to privacy that they wrote very specific criteria into the Constitution to govern the government's ability to interfere with it? What if the government violated those criteria millions of times a day in the name of safety?</p>
<p>What if the violation of the right to privacy is a gateway to all other government violations of personal liberty? What if every government witch hunt never stops until it finds or creates a witch? What if every government inquisition never stops until it finds or creates a heretic? What if government does create modern-day witches and heretics and then arrests them and seeks credit for keeping us safe from them? What if they never posed any threat? What if we fall for this?</p>
<p>What if those who love power defeat those who love liberty in a government election? What if there is no one left to enforce the Constitution against those in power?</p>
<p>What if all this is happening right under our noses? What do we do about it?</p>Judge Andrew P. Napolltano2015-05-21T21:14:00ZRand and Ted on the FourthJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Rand-and-Ted-on-the-Fourth/42061054287881406.html2015-05-14T23:31:00Z2015-05-14T23:31:00Z<p>A decision last week about NSA spying by a panel of judges on the United States Court of Appeals in New York City sent shock waves through the government. The court ruled that a section of the Patriot Act that is due to expire at the end of this month and on which the government has relied as a basis for its bulk acquisition of telephone data in the past 14 years does not authorize that acquisition.</p>
<p>This may sound like legal mumbo jumbo, but it goes to the heart of the relationship between the people and their government in a free society. Here is the backstory and the latest.</p>
<p>The Patriot Act is the centerpiece of the federal government's false claims that by surrendering our personal liberties to it, it can somehow keep us safe. The liberty-for-safety offer has been around for millennia and was poignant at the time of the founding of the American republic.</p>
<p>The Framers addressed it in the Constitution itself, where they recognized the primacy of the right to privacy and insured against its violation by the government by intentionally forcing it to jump through some difficult hoops before it can capture our thoughts, words or private behavior.</p>
<p>Those hoops are the requirement of a search warrant issued by a judge and based on evidence -- called probable cause -- demonstrating that it is more likely than not that the government will find what it is looking for from the person or place it is targeting. Only then may a judge issue a warrant, which must specifically describe the place to be searched or specifically identify the person or thing to be seized.</p>
<p>None of this is new. It has been at the core of our system of government since the 1790s. It is embodied in the Fourth Amendment, which is at the heart of the Bill of Rights. It is quintessentially American.</p>
<p>The Patriot Act has purported to do away with the search warrant requirement by employing language so intentionally vague that the government can interpret it as it wishes. Add to this the secret venue for this interpretation -- the FISA court to which the Patriot Act directs that NSA applications for authority to spy on Americans are to be made -- and you have the totalitarian stew we have been force-fed since October 2001.</p>
<p>Because the FISA court meets in secret, Americans did not know that the feds were spying on all of us all the time and relying on their own unnatural reading of words in the Patriot Act to justify it until Edward Snowden spilled the beans on his former employer nearly two years ago.</p>
<p>The feds argued to the secret court that they were entitled to any phone call data they wanted -- usually sought by area code or zip code or the customer base of telecom service providers -- so long as they claimed to need it to search for communications about terror-related activities, and they claimed they needed EVERYONE'S records, and they claimed the Patriot Act authorized this.</p>
<p>The secret court bought those claims, and -- fast-forward to today -- the feds now have immediate access to our phone calls in real time. They can turn on our cellphones in our pockets and purses and use them as listening devices without us knowing it, and they have physical access to all telephone carriers' equipment whenever they wish, which today is 24/7.</p>
<p>Some members of Congress reject this. Foremost among the outraged in the Senate is Kentucky Sen. Rand Paul. It is none of the government's business, he argues, what we say on our phone calls. If the NSA wants to hear us, let them present probable cause to a judge identifying the person they want to hear and seek a search warrant. Paul's is a genuine outrage from the only voice among those running for president who is faithful to the Constitution.</p>
<p>Other senators, foremost among them Texas Sen. Ted Cruz, also running for president, are pretending outrage by offering a Band-Aid to replace the Patriot Act called the Freedom Act. The Freedom Act gets the NSA physically out of the telecoms' offices, but lets them come back in digitally whenever one of these secret FISA courts says so, and the standard for saying so is not probable cause as the Constitution requires. It is whatever the government wants and</p>
<p>The so-called Freedom Act would actually legitimize all spying all the time on all of us in ways that the Patriot Act fails to do. It is no protection of privacy; it is no protection of constitutional liberty. It unleashes American spies on innocent Americans in utter disregard of the Fourth Amendment.</p>
<p>Earlier this week, Paul announced that he feels so strongly about the right to be left alone, and takes so seriously his oath to uphold the Constitution, and believes so certainly that our phone calls are none of the government's business that he plans to filibuster all attempts to permit this to continue. For that alone, he is a hero to the Constitution. Perhaps his friend Cruz will return to his constitutional roots and join him.</p>
<p>How do we know that the Freedom Act is a Band-Aid only? Because the NSA supports it.</p>Judge Andrew P. Napolltano2015-05-14T23:31:00ZRestore the FourthJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Restore-the-Fourth/-815651036178818765.html2015-05-08T02:34:00Z2015-05-08T02:34:00Z<p><span>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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />The Fourth Amendment requires evidence -- called probable cause -- about a particular person, place or event to be presented to a judge and requires the judge to decide whether it is more likely than not that the government will find what it is looking for. The wording of the amendment could not be more precise, and in a Constitution known for vague language, this precision is instructive: All warrants must "particularly descr(ibe) the place to be searched, and the persons or things to be seized." The Fourth Amendment protects all persons' bodies, houses, papers and effects.</span><br /><span><br />Yet the Patriot Act purports to avoid these requirements by permitting secret FISA court judges to authorize NSA agents to execute general warrants; thus, without probable cause and without describing the place to be searched or the person or thing to be seized.</span><br /><span><br />The purpose of the Fourth Amendment is to prohibit government fishing expeditions, common to totalitarian countries. The theory of the Fourth Amendment is that a restrained government -- restrained by an instrument the government cannot change, like the Constitution -- is essential if people are to be free. The natural right protected by the Fourth Amendment is the right to be left alone.</span><br /><span><br />Enter Restore the Fourth.</span><br /><span><br />Restore the Fourth is a movement gaining steam now because the section of the Patriot Act that is so constitutionally offensive expires on</span><span> </span><span id="OBJ_PREFIX_DWT723_com_zimbra_date" class="Object">May 31</span><span>. President Obama wants it extended so his spies can continue their bulk collection of data. The Republican leadership in the Senate agrees with the president and accepts the myth that less freedom equals more security. The Republican leadership in the House has proposed a Band-Aid that would require the telecoms and computer service providers to sit on bulk data until the feds come calling, but to surrender it without the judicial finding of probable cause or specificity.</span><span> </span><br /><span><br />The Patriot Act should be repealed because it violates the Constitution and it doesn't keep us safe. It renders us less safe and less free. The indiscriminate unconstitutional bulk collection of data is far too much raw material even for the 60,000 NSA agents and contractors to navigate. We saw that as recently as last weekend, when two jihadists known to the FBI and who had used email and cellphones attacked a free speech symposium outside of Dallas and were stopped at the last minute by courageous local police who saw their guns -- not by federal spies' warnings.</span><br /><span><br />When longtime NSA Director Gen. Keith Alexander was asked under oath how many plots the NSA has stopped in 10 years, he stated 53. The next day, he modified his testimony to three, but declined to elaborate. Edward Snowden, whose revelations about NSA spying have never been refuted, says that no plots have been stopped because the NSA looks at everyone, rather than targeting the bad guys, as the probable cause requirement -- if complied with -- would induce it to do.</span><br /><span><br />Americans are largely free because of the rule of law. The rule of law means a supreme law of the land to which even the government is subject, just as are all persons. Without the rule of law, we are subject to the rule of whoever runs the government, and our rights become licenses to be granted or denied by whoever runs the government. In that world, who or what would restrain the government? An unrestrained government is what we fought the American Revolution against.</span><br /><span><br />That's why we must Restore the Fourth.</span></p>Judge Andrew P. Napolltano2015-05-08T02:34:00ZTyranny of One Man's OpinionJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Tyranny-of-One-Mans-Opinion/123889321301386160.html2015-04-30T21:43:00Z2015-04-30T21:43:00Z<p>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.</p>
<p>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."</p>
<p>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.</p>
<p>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.</p>
<p>President Barack Obama has rejected not only the theory but also the practice of due process by his use of drones launched by the CIA to kill Americans and others overseas. The use of the CIA to do the killing is particularly troubling and has aroused the criticism of senators as disparate in their views as Rand Paul and John McCain, both of whom have argued that the CIA's job is to steal and keep secrets and the military's job is to further national security by using force; and their roles should not be confused or conflated, because the laws governing each are different.</p>
<p>Theirs is not an academic argument. The president's use of the CIA is essentially unlimited as long as he receives the secret consent of a majority of the members of the House and Senate intelligence committees. The secret use of these 37 senators and representatives constituting the two committees as a Congress-within-the Congress is profoundly unconstitutional because Congress cannot delegate its war-making powers to any committee or group without effectively disenfranchising the voters whose congressional representatives are not in the group.</p>
<p>Moreover, the War Powers Resolution regulates the president's use of the military and essentially precludes secret wars. It requires the public consent of a majority of the full Congress for all offensive military action greater than 90 days. That, in turn, brings about transparency and requires a national political will to use military force.</p>
<p>President Obama has formulated rules -- agreed to by a majority of the 37, but not by a majority in Congress -- that permit him to kill Americans and others overseas when he believes they are engaging in acts that pose an imminent threat to our national security, when their arrest would be impracticable and when personally authorized by the president. This is not federal law, just rules Obama wrote for himself. Yet none of the Americans he has killed fits any of those rules.</p>
<p>Last week, the White House revealed that in January, the government launched its 446th drone into a foreign land, and this one killed three Americans and an Italian, none of whom had been targeted or posed a threat to national security at the time of his murder. The drone, which was dispatched by a computer in Virginia, was aimed at a house in Pakistan and was sent on its lethal way without the approval of the Pakistani government or the knowledge of President Obama.</p>
<p>The use of drones is not only constitutionally impermissible but also contraindicated by the rules of war. Drones pose no threat and little danger to those doing the killing. Except when the intelligence is bad -- as it was in the January case revealed last week -- deploying drones is a low-risk endeavor for the country doing so. But Obama's wars by robots produce more killing than is necessary. War should be dangerous for all sides so as to limit its lethality to only those venues that are worth the risk -- those that are vital for national security.</p>
<p>If war is not dangerous, it will become commonplace. By one measure -- the absence of personal involvement by decision-makers -- it has become commonplace already. A mere three years after his self-written rules for the deployment of drones were promulgated, the president has delegated the authority to order drone killings to his staff, and the members of the congressional intelligence committees have delegated their authority to consent to their staffs.</p>
<p>Obama apparently doesn't care about the Constitution he swore to uphold, but he should care about the deaths of innocents. Obama's drones have killed more non-targeted innocents in foreign lands than were targeted and killed in the U.S. on 9/11.</p>
<p>And the world is vastly less stable now than it was on 9/11. The president's flying robots of death have spawned the Islamic State group -- a monstrosity far exceeding even Henry VIII and Thomas Cromwell in barbarity.</p>Judge Andrew P. Napolltano2015-04-30T21:43:00ZNot Your Grandfather's FBIJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Not-Your-Grandfathers-FBI/-538768890496680393.html2015-04-23T07:00:00Z2015-04-23T07:00:00Z<p><span>Does the FBI manifest fidelity, bravery and integrity, or does it cut constitutional corners in order to incriminate? Can the FBI cut the cable television lines to your house and then show up pretending to be the cable guy and install listening devices? Can FBI agents and technicians testify falsely and cause the innocent to be convicted, incarcerated and, in some cases, executed?</span><br /><span><br />In 2014, FBI agents in Las Vegas were on the trail of Wei Seng Phua, whom they believed was running an illegal gambling operation out of his hotel room at Caesars Palace. Instead of following him, asking questions about him and using other traditional investigative techniques, a few agents came up with the idea of planting a wiretap in Phua's hotel room.</span><br /><span><br />They bribed a hotel employee, who gave them access to a place in the hotel where they could disable the cable television wires to Phua's room. When he called for repair, they showed up pretending to be cable guys, and he let them into his room. They repaired what they had disabled, but they also illegally wiretapped the phones in the room. Then they overheard his telephone conversations about his illegal gambling, and they arrested him. A grand jury indicted him based on what was overheard.</span><br /><span><br />The grand jury was not told of the wire cutting and the con job, but a federal judge was. Last week, he criticized the FBI for conducting an illegal search of Phua's room, in direct contravention of the Fourth Amendment, which the agents swore to uphold, and he barred the government from using the tapes of the telephone conversations as evidence against Phua. If the government can get away with this, he ruled, then constitutional guarantees are meaningless.</span><br /><span><br />These lawless agents should have been indicted by a state grand jury for breaking and entering by false pretense, but Caesars declined to seek their prosecution. No surprise.</span><br /><span><br />It was surprising, however, when the FBI was forced to admit last week that in the 1980s and 1990s, its agents and lab technicians who examined hair samples testified falsely in 257 of 268 cases that resulted in convictions. Of the convictions, 18 persons were sentenced to death, and of those, 12 have been executed.</span><br /><span><br />Some of these cases were federal, but most were state prosecutions in which state and county prosecutors hired the FBI to perform lab tests and compare hair samples from a crime scene with a defendant's known hair sample. The faulty lab work and erroneous testimony destroyed the freedom of hundreds and the lives of 12, squandered millions in tax dollars, and impaired the constitutional values we all embrace.</span><br /><span><br />You probably did not hear about the FBI cable guys or the admitted 96-percent rate of false testimony in cases of conviction. That's because the FBI skillfully diverted your attention.</span><br /><span><br />In an effort to pick a front-page fight with the government of Poland, FBI Director James Comey revealed last week that the very concept of the Holocaust has moved him deeply -- so deeply that he has ordered all new FBI agents to spend quiet time at the Holocaust Museum contemplating its horrors. He argued that the terror of Nazi agents became so commonplace that its wrongness was no longer apparent to them. That's probably true. The Nazis did so much killing that their acts of killing innocents became commonplace to the killers. Then he blamed the Poles for their own victimization because of the few among them who collaborated with their invaders. This brought the hoped-for fierce blowback from the Polish government and top-of-the-fold criticism of Comey for two days.</span><br /><span><br />Earlier this week, the FBI announced the arrest of eight persons for attempting to leave the United States in order to join ISIS. The actual charge is attempting to provide material assistance to a terrorist organization. These ISIS people are truly monsters. Yet, Americans have a natural right to travel where they want and associate with whomever they please. The test of a truly free country is the right to leave it.</span><br /><span><br />Moreover, this was a controlled FBI sting. The defendants were instigated by and under the watchful eyes of FBI undercover agents. The FBI admits that the defendants never posed any harm. How can it be a crime -- or harmful -- for people to leave the U.S.? If people with evil inclinations want to leave, let them go; arrest them when they return if they cause harm.</span><br /><span><br />For 600 years of Anglo-American jurisprudence, the definition of crime has included the element of harm. No one was harmed by this sting except the taxpayers. Yet, this announcement dominated the news cycle as hoped for.</span><br /><span><br />Why chastise the Poles, who suffered egregiously under the Nazis, in 2015 for the few who collaborated with them in 1942? Why entrap losers who harmed no one into thinking they could freely leave the country and join an army of monsters and then announce their arrest during a bad week? To change the subject; that's why.</span><br /><span><br />Will FBI agents who lie, cheat, break the law and testify falsely be brought to justice? Will their superiors who condone this be made to answer? Does the FBI work for us, or do we work for it?</span></p>Judge Andrew P. Napolltano2015-04-23T07:00:00ZCan the President Kill Americans?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Can-the-President-Kill-Americans/-420049725607129823.html2015-04-16T18:42:00Z2015-04-16T18:42:00Z<p><span>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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />It is happening here.</span><br /><span> <br /></span><span>In 2011, Obama ordered the CIA to murder Anwar al-Awlaki, an American born in New Mexico. When the CIA's drones murdered Awlaki, he was within eyesight in Yemen of about 12 Yemeni intelligence agents and four CIA agents, all of whom collectively could have arrested him. He was not engaged in any unlawful behavior. He was unarmed and sitting at an outdoor cafe with a friend and his teenage son and the son's friend. All four -- Americans all -- were murdered by the drones dispatched from Virginia.</span><br /><span><br />When word of this got out, the president came under heavy criticism. He responded by claiming he had the lawful authority to kill any dangerous person whose arrest was impractical. He also claimed he had a legal opinion from Attorney General Eric Holder that justified the killings. He then dispatched Holder to explain the lawful basis for the killings at a speech at Northwestern Law School. The speech produced even more criticism and, eventually, the revelation of a portion of the legal opinion.</span><br /><span><br />The legal opinion is hogwash. It relies on cases of hot pursuit in which police may lawfully use deadly force to stop an armed and dangerous person who is an imminent danger of causing deadly harm to someone else -- an armed robber fleeing a bank he has just robbed and shooting at his pursuers may of course be shot at lawfully by the police. In the Awlaki case, the government had not even alleged that he committed a crime. Without that allegation, those 16 intelligence agents who were following him for the final 48 hours of his life could not have lawfully arrested him. The government concedes this; so it decided to kill him.</span><br /><span><br />All this resurfaced last week in a Brooklyn federal courtroom where another American, Mohanad Mahmoud al-Farekh, born in Texas, was charged with providing material assistance to a terrorist organization while he was in Pakistan. It was revealed that the Department of Defense nominated Farekh for execution, the CIA seconded the nomination (you cannot make this stuff up), and the president vetoed it because he did not want to offend the Pakistanis, over whose land he has dispatched more than 3,000 drones, a practice he promised to stop.</span><br /><span><br />The president did not decline to order the murder of Farekh because it was morally wrong or unconstitutional or a violation of federal law, but because he feared it would upset officials in a foreign government. We also learned last week that the House and Senate committees on intelligence -- the members of which receive classified briefings that they cannot share with their constituents or colleagues -- demanded Farekh's execution, but the president refused.</span><br /><span><br />What a sad, sorry, unconstitutional state of affairs this Obama presidency and its enablers in Congress have brought us. Like Awlaki, Farekh was not engaged in an act of violence when intelligence agents pursued him. Why did one of these pursuits result in due process and the other in murder? Because of the political calculations of the president. That is not the rule of law. That is a gross violation of basic American values.</span><br /><span><br />While all this has been going on, the president has negotiated a deal with Iran that has many in Congress up in arms. They think he gave away the store, and they are in the process of enacting legislation over his likely veto that would prohibit him from entering into agreements on nuclear weapons without their consent. Have you heard any of these self-proclaimed congressional patriots offer legislation to prohibit the president from murdering Americans? Who will be nominated for execution next?</span><br /><span><br />When the president acts like a king and Congress looks the other way, it is as culpable as he is.</span></p>Judge Andrew P. Napolltano2015-04-16T18:42:00ZShooting Themselves in the FootJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Shooting-Themselves-in-the-Foot/741788266467355320.html2015-04-09T07:00:00Z2015-04-09T07:00:00Z<p>The turmoil over the efforts by the State of Indiana to make lawful the decisions by operators of public accommodations to decline their services based on their stated religious views has died down because the legislature amended the offending parts of its legislation so that the new law prohibits denying services based on sexual orientation, yet its affirmations of religious liberty are meaningless.</p>
<p>The statute as amended last week basically states that in Indiana all persons have the right to the free exercise of their religion, and if that right clashes with any other claimed right, the courts must take both claims into account and analyze the free exercise of religion claim by using legal standards intended to recognize that it is fundamental.</p>
<p>That is already the law of the land everywhere in the United States by virtue of the Free Exercise Clause of the Constitution, which may not be expanded by any state legislature without offending the Establishment Clause. The free exercise of religion is a fundamental liberty; it is fundamental because it is a natural right and is expressly protected by the Constitution. It is intentionally juxtaposed to be at tension with the Establishment Clause. The two clauses together mean that government may not aid religion, may not harm it, may not advance it and may not interfere with it.</p>
<p>The Indiana firestorm was the consequence of a governmental solution for no problem. It is absurd for a state to pronounce in its positive law the truism that rights guaranteed by the U.S. Constitution shall be honored in that state. I say "absurd" because that already is the law of the land and any effort to restate it is superfluous and no doubt intended to mislead the people into believing that somehow, in Indiana, there is more religious freedom than elsewhere in the U.S. There isn't, and there cannot be.</p>
<p>This misrepresentation occurred when Indiana's original Religious Freedom Restoration Act stated that religious beliefs can trump legal obligations when the operator of a public accommodation is deciding whether to deliver his goods or services to a person whose status, past behavior or contemplated behavior runs counter to the operator's religious beliefs.</p>
<p>By permitting the rejection of services because of sexual orientation, so long as that rejection was based on a religious belief, Indiana was effectively making discrimination based on sexual orientation lawful. No other state had done that.</p>
<p>When the owner of a northern Indiana pizza restaurant said she would decline to deliver pizza to a same-sex wedding reception because her religious views prohibit same-sex weddings, it was a lawful statement, and if she had carried through on her promise, her behavior in Indiana at the time the original statute was in force would have been lawful.</p>
<p>Should the pizza restaurant owner have been able to make that promise and carry through with it?</p>
<p>Before you answer, consider where this could have gone. Suppose the couple seeking the pizza at their wedding was not only same sex, but also of two different races, and the pizza shop owner claimed a religious aversion to mixed-race marriages. Could she have followed through on her promise to deny the pizza? Or suppose she objected on religious grounds to weddings of those who had been previously married? Could she lawfully have denied pizza to them? Or suppose she claimed a religious view that prohibited her from serving pizza to anyone whose skin color was darker than hers? Is there no limit to her ability to refuse service so long as she claims a religious basis for doing so?</p>
<p>One can see the slippery slope that the original Indiana statute could have begun by offering state legal protection to the refusal to deal based on religion, even when it is contrary to federal law. Under the law, no one needs to prove the prior existence of a religious creed or decree in order to claim it for one's own, and the courts may not inquire of the origin, centrality, rationality or sincerity of one's religious beliefs. Hence, the Indiana law on its face could be used to claim the right to deny any person any service in any public accommodation, so long as the denial was based on the denier's stated religious views.</p>
<p>But the statute runs counter to standard First Amendment jurisprudence. The U.S. Supreme Court has addressed this twice in recent years and both times ruled that religious beliefs cannot trump the obligation to comply with the general law of the land. The Indiana legislature should have known this.</p>
<p>Before 1964, all public accommodations could refuse service to anyone for any reason. But the Civil Rights Act of 1964 and its amendments put an end to that for all immutable characteristics of birth, except sexual orientation. If the Indiana legislature wanted to bring back the bad old days with respect to sexual orientation and public accommodations, one can understand the firestorm it got. If it was just trying to boast that it was defending the same religious liberties the Constitution already requires it to defend, its efforts were clumsy, unnecessary and wasteful.</p>
<p>Why do politicians support legislation and not concern themselves with whether it is constitutional? Why do they trick innocent voters into thinking they are getting something unique? Why do we return them to office when they shoot themselves in the foot?</p>
<p> </p>Judge Andrew P. Napolltano2015-04-09T07:00:00ZIndiana and the ConstitutionJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Indiana-and-the-Constitution/-889924630410744027.html2015-04-02T18:26:00Z2015-04-02T18:26:00Z<p>The Indiana Religious Freedom Restoration Act of 2015 is constitutionally infirm and legally troublesome.</p>
<p>The circuitous constitutional route that brought about this statute began in 1990 when the Supreme Court ruled that the Free Exercise Clause of the First Amendment may not be used as a defense to violating the general laws of the land. In Employment Division v. Smith, a small group of Native Americans who had been fired from their jobs because drug tests revealed their use of peyote made applications for unemployment compensation, which the State of Oregon denied.</p>
<p>They appealed and claimed that their use of peyote, a hallucinogenic drug, could not be the basis for firing them from their jobs because it was a sacrament in their religion. The court ruled that the adherents to this religion had the same obligation to obey the laws that prohibit the use of peyote as all persons do.</p>
<p>In response to that decision, and wanting to show an interest in an issue of constitutional liberty for a change, Congress enacted the federal Religious Freedom Restoration Act of 1993 (RFRA), a clumsy effort to overturn the Employment Division v. Smith ruling.</p>
<p>That statute basically required the federal government and the states to permit the "my religion made me do it" defense wherever there was an arguable claim that a general law of the land conflicted with a genuine religious practice or belief. The statute also mandated an exacting due process standard, called strict scrutiny, that the courts are to apply to the states' enforcement of their laws when addressing an alleged clash between a general law applicable to everyone and a free exercise of religion claim.</p>
<p>Four years later, when the Roman Catholic Archbishop of San Antonio, Texas, claimed the protection of RFRA to justify an exemption to a local zoning law so that an old church could be expanded, and lost, he appealed, and the case made its way to the Supreme Court. In Boerne v. Flores (1997), the court found RFRA to be unconstitutional. It ruled that Congress had effectively redefined the meaning of the Free Exercise Clause and mandated the judicial standards to be used when assessing claims made under it, and that that definition and mandate are not properly Congress' to make. Because Congress' powers under the Fourteenth Amendment are limited to remedying state failures to protect fundamental liberties and do not extend to defining the meaning or parameters of constitutional provisions, the court invalidated RFRA.</p>
<p>Thus, it is clear that one may not violate any law, state or federal, and escape the consequences of that violation on the basis that one's religious views compelled the disobedience. Were this not the case, then nothing would prevent animal sacrifice, the use of mind-altering drugs, and even racial or gender or national origin discrimination in public accommodations and housing -- all allegedly based on one's claimed religious views. The federal Civil Rights Act of 1964 prohibits discrimination in housing and public accommodations based upon race, gender, religion, beliefs or national origin, and quite properly permits no religious-based defense.</p>
<p>In response to the invalidation of RFRA, many states enacted their own form of RFRA, and most states added sexual orientation to the litany of prohibited bases for discrimination in public accommodations and housing. Indiana has not added the prohibition on discrimination based on sexual orientation; yet its own RFRA statute, signed into law last week, provides a "my religion made me do it" defense to allegations of discrimination based on sexual orientation. Hence the belief and fear that the Indiana statute is an affirmative attempt to provide a lawful basis for such discrimination. Such an attempt would surely run afoul of the Supreme Court's invalidation of a Colorado constitutional provision that purported to do the same in Romer v. Evans (1996).</p>
<p>The legal issues attendant upon the judicial enforcement of this Indiana statute are enormously complex. They would amount to judges determining the centrality and sincerity of a person's claimed religious practices to the core teachings of his religion. This type of determination by judges could only come about by an inquiry unknown in American jurisprudence ("Is this really taught by your church?" "Do you really believe this?" "How is your refusal to sell goods or services to this person central to your religious beliefs?") and prohibited by the Free Exercise Clause, which the courts have held bars such judicial inquiries.</p>
<p>In the days before the federal Civil Rights Act of 1964, the late Sen. Barry Goldwater offered a neutral, non-racist common-law argument based on morality and property rights against that landmark legislation. He articulated the view that a seller of goods or services or real estate has a natural right to decide to whom he wishes to sell, free from government commands.</p>
<p>Goldwater paraphrased Thomas Jefferson, who argued that the only moral commercial transaction is one truly voluntary on the part of the buyer and the seller. That argument has an attractive leave-me-alone appeal to it; yet, the public policy of the nation since 1964 has unambiguously rejected it. Today in America, if you operate a public accommodation or deal in real estate, you cannot choose your customers; they choose you. This Indiana statute is arguably an effort to bring back the pre-1964 days with respect to sexual orientation.</p>
<p>Because discrimination based on sexual orientation is not prohibited by the Civil Rights Act of 1964, Indiana and all other states are free to prohibit it or to look the other way in the face of it. But they are not free to encourage it or to make it lawful.</p>Judge Andrew P. Napolltano2015-04-02T18:26:00ZAmendment by ConsentJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Amendment-by-Consent/274569868588193323.html2015-03-26T19:10:00Z2015-03-26T19:10:00Z<p><span>Here is a short pop quiz.</span><br /><span><br />When Israeli Prime Minister Benjamin Netanyahu addressed Congress earlier this month about the parameters of the secret negotiations between the United States and Iran over nuclear weapons and economic sanctions, how did he know what the negotiators were considering? Israel is not a party to those negotiations, yet the prime minister presented them in detail.</span><br /><span><br />When Hillary Clinton learned that a committee of the U.S. House of Representatives had subpoenaed her emails as secretary of state and she promptly destroyed half of them -- about 33,000 -- how did she know she could get away with it? Destruction of evidence, particularly government records, constitutes the crime of obstruction of justice.</span><br /><span><br />When Gen. Michael Hayden, the director of both the CIA and the NSA in the George W. Bush administration and the architect of the government's massive suspicionless spying program, was recently publicly challenged to deny that the feds have the ability to turn on your computer, cellphone or mobile device in your home and elsewhere, and use your own devices to spy on you, why did he remain silent? The audience at the venue where he was challenged rationally concluded that his silence was his consent.</span><br /><span><br />And when two judges were recently confronted with transcripts of conversations between known drug dealers -- transcripts obtained without search warrants -- and they asked the police who obtained them to explain their sources, how is it that the cops could refuse to answer? The government has the same obligation to tell the truth in a courtroom as any litigant, and in a criminal case, the government must establish that its acquisition of all of its evidence was lawful.</span><br /><span><br />The common themes here are government spying and lawlessness. We now know that the Israelis spied on Secretary of State John Kerry, and so Netanyahu knew of what he spoke. We know that the Clintons believe there is a set of laws for them and another for the rest of us, and so Mrs. Clinton could credibly believe that her deception and destruction would go unpunished.</span><br /><span><br />We know that the NSA can listen to all we say if we are near enough to a device it can turn on. (Quick: How close are you as you read this to an electronic device that the NSA can access and use as a listening device?) And we also know that the feds gave secret roadside listening devices to about 50 local police departments, which acquired them generally without the public consent of elected officials in return for oaths not to reveal the source of the hardware. It came from the secret budget of the CIA, which is prohibited by law from spying in the U.S.</span><br /><span><br />What's going on here?</span><br /><span><br />What's going on here is government's fixation on spying and lying. Think about it: The Israeli Mossad was spying on Kerry while the CIA was spying on the Mossad. Hillary Clinton thought she could destroy her emails just because she is Hillary Clinton, yet she forgot that the administration of which she was an integral part dispatched the NSA to spy on everyone, including her. And though it might not voluntarily release the emails she thought she destroyed, the NSA surely has them. The police have no hesitation about engaging in the same warrantless surveillance as the feds. And when Hayden revealed a cat-like smile on his face when challenged about the feds in our bedrooms, and the 10,000 folks in the audience did not reveal outrage, you know that government spying is so endemic</span><span> </span><span id="OBJ_PREFIX_DWT527_com_zimbra_date" class="Object">today</span><span> </span><span>that it is almost the new normal.</span><br /><span><br />Yet, government spying is not normal to the Constitution. Its essence -- government fishing nets, the indiscriminate deployment of government resources to see what they can bring in, government interference with personal privacy without suspicion or probable cause -- was rejected by the Framers and remains expressly rejected by the Fourth Amendment</span><span> </span><span id="OBJ_PREFIX_DWT529_com_zimbra_date" class="Object">today</span><span>.</span><br /><span><br />For our liberty to survive in this fearful post-9/11 world, the government's lawless behavior must be rejected not just by the words of dead people, but by the deeds of we the living. When the president violates the Constitution and the Congress and courts do nothing to stop him, we have effectively amended the Constitution with a wink and a nod -- by consent, if you will. Its guarantees of liberty are only guarantees if the people in whose hands we repose it for safekeeping honor them as guarantees and believe and behave as such because the Constitution means what it says.</span><br /><span><br />Where is the outrage? If you knew the feds were virtually present in your bedroom or your automobile, and your representatives in Congress did nothing about it, would you buy the nonsense that you should have nothing to hide? Would you send those weaklings back to Congress? Or would you say to a lawless government, as the Founders did to the British, "Thou shalt not enter here"? Does the Constitution mean what it says in bad times as well as in good times?</span><br /><span><br />These are not academic questions. They address the most important issue of our day. For nothing will destroy our personal liberties more effectively than the government refusing to honor them and Americans sheepishly accepting that. And without freedom, what are we?</span></p>Judge Andrew P. Napolltano2015-03-26T19:10:00ZWhat if Hillary Doesn't Care?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-if-Hillary-Doesnt-Care/-167124458122775270.html2015-03-19T07:00:00Z2015-03-19T07:00:00Z<p>What if Hillary Clinton's emails were hacked by foreign agents when she was the secretary of state? What if persons claiming to have done so are boasting about their alleged feats on Internet websites and in chat rooms traditionally associated with illegal or undercover activities? What if this is the sore underbelly of an arrogant and lawless secretary of state who used her power to exempt herself from laws that govern executive branch employees and didn't care about national security?</p>
<p>What if the law required Clinton to swear under oath on her first day as secretary of state that she would comply with all laws governing the use of federal records? What if the principal governing law -- the Federal Records Act of 1950 -- makes it clear that when you work for the feds all the records you receive and generate belong to the government and you cannot lawfully conceal them from the government?</p>
<p>What if she refused to sign such a promise because she knew she'd be violating that law?</p>
<p>What if the State Department has an inspector general whose job it is to assure the public and the attorney general that the secretary of state is complying with federal law? What if agents of the inspector general signed documents swearing that Clinton told them she agreed to abide by the law, and so they permitted her to have access to federal records? What if they did this because Clinton refused to sign an oath herself since she had no intention of complying with it, and because she ordered them to sign in her place?</p>
<p>What if the law required Clinton to swear an oath at the time she left office that she had no federal records in her possession or control? What if she signed that oath knowing that nearly all of her records were in her possession and not the government's? What if she refused to sign that oath because she knew she possessed federal records contrary to law? What if she blamed her failure to sign that oath on her own inspector general? What if the law requires the inspector general to report her refusal to sign this oath to the attorney general? What if that report was made and the attorney general looked the other way?</p>
<p>What if the president has known since 2009 that Clinton has concealed government records from the government? What if his assertion that "Hillary has given her emails back" to the State Department is a trick based on the slippery use of words? What if the emails of the secretary of state do not and never did belong to her, but rather to the federal government? What if her diversion of government records away from the government and onto her husband's computer server is a criminal act? What if Clinton is a lawyer who knows the law and knows when she is breaking it?</p>
<p>What if the whole premise of the law governing the records of federal employees is that the government owns and possesses all emails and documents used by the employee, and if the employee, upon leaving the government, wants any of her records, she must ask for them, and the government then reviews her records and decides which are personal?</p>
<p>What if Clinton turned that law on its head by keeping all of the government's records and having her own representatives review them? What if after that review she decided which records to return to the government and which ones to DESTROY? What if this amounted to the destruction of government property? What if we are not talking about destroying meaningless scraps of paper, but rather 33,000 emails over the course of four years in office?</p>
<p>What if Clinton seriously exposed classified secrets that could affect national security by discussing them on an email system owned by her husband and not secured by a mature Internet service provider or by the government? What if she did this because she didn't want anyone in the government or the public to see her records? What if the real reason for her theft of records was not personal convenience, as she has claimed, but fear of exposure of her true thoughts and unguarded behavior? What if she feared she could not publicly account for her concealed behavior, and so she kept it from the government?</p>
<p>What if when she claimed her husband's email server had never been hacked she didn't know what she was talking about? What if victims can't always tell when they've been hacked? What if the persons with whom she has been emailing have been hacked? What if one of her former aides -- with the lurid nickname of the "prince of darkness" (real name: Sid Blumenthal) -- was hacked? What if among the hacked emails of the Prince of Darkness were some to and from Clinton strategizing about the way to portray her role at the time of the assassination in Benghazi of the American ambassador to Libya?</p>
<p>What if all this lawlessness and secrecy was orchestrated by Clinton herself -- a person devoid of a moral compass and disdainful of compliance with law and a habitual stranger to the truth? What if she is presently the leading candidate for the Democratic nomination for president? What if the Democrats don't care?</p>Judge Andrew P. Napolltano2015-03-19T07:00:00ZObama and the Clinton EmailsJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Obama-and-the-Clinton-Emails/900489100857759983.html2015-03-13T06:57:00Z2015-03-13T06:57:00Z<p>Hillary Rodham Clinton, the former first lady, U.S. senator from New York and secretary of state, used a private email server for all of her emails when she was President Obama's secretary of state from 2009 to 2013.</p>
<p>During that time, she enjoyed a security clearance identical to that of the president, the secretary of defense, the director of the CIA and others -- it is the highest level of clearance the government makes available.</p>
<p>She had that classified clearance so that she could do her job, which involved knowing and working with military, diplomatic and sensitive national security secrets. The government guards those secrets by requiring high-ranking government officials to keep the documents and emails that reflect them in a secure government-approved venue and to return any retained records when leaving office.</p>
<p>I have not seen Clinton's signature on any documents, but standard government procedure is for her to have signed an agreement under oath when she began her work at the State Department requiring her to safeguard classified records, and another agreement under oath when she ended her work that she had returned all records to the government.</p>
<p>She violated both agreements, and she violated numerous federal laws.</p>
<p>By using her personal email address -- @clintonemail.com -- she kept her work documents from the government. Concealing government documents from the government when you work for it is a felony, punishable by up to three years in prison and permanent disqualification from holding public office.</p>
<p>Failing to secure classified secrets in a government-approved facility or moving them to a non-secure facility outside the government's control is a misdemeanor, punishable by a hefty fine and a year in jail. Using a false email address that gives the clear impression that the user is not using a government server when she is, or one that creates the false impression that the emailer is using a government server when she is not, is also a felony.</p>
<p>The legal issues in Clinton's case are all the more curious when one hears Obama's tepid reaction to this latest scandal. Asked by Bill Plante of CBS News last weekend when he first learned of Clinton's use of a personal email server instead of the government's, the president told Plante he learned of it from the media, last week, when the rest of us did. He later had his press secretary state that he did recognize her use of a non-governmental email address, but did not know it was unlawful or unsecured until last week.</p>
<p>Does the White House not know where the president's emails are coming from and where they are going?</p>
<p>I wish Plante had followed up with that question and more. Mr. President, are you not troubled that your secretary of state had a non-secure email account and used it for all of her work? Are you not troubled that she might have kept classified secrets on a server in her barn on her estate in Chappaqua, N.Y. that the Secret Service might or might not have known about, or at a computer company in Texas that the Secret Service was unable to protect?</p>
<p>Does it not trouble you, Mr. President, that foreign intelligence services likely would have had a far easier time hacking into the emails of your secretary of state because of all this? Mr. President, will your Department of Justice prosecute Clinton for retaining 48 months of classified records on her personal server after she left office, as it did Gen. David Petraeus, who kept 15 months of classified records in a desk drawer in his home after he left office?</p>
<p>Mr. President, the premise of the law regulating government records is that the government owns them all, and when a high-ranking government official leaves office, the ex-official may ask the government for copies of her personal emails, and the government decides which ones it will give her. Mr. President, don't you realize that Clinton turned the law on its head by keeping all of her emails from the government?</p>
<p>Thus, rather than the government deciding which emails were personal, Clinton decided which emails were governmental, and she turned those over to the government. How does the government know what is contained in the emails she kept? Mr. President, this is a privilege that even you don't have, and it is the very behavior that the laws you have sworn to uphold were written to prevent.</p>
<p>Mr. President, did you cut a deal with Clinton's husband that permits her to get away with this type of behavior? Mr. President, is it true that there are standards of behavior for Bill and Hillary Clinton and their friends and other standards for the rest of us?</p>
<p>Mr. President, do you remember that crackpot Sandy Berger, who was Bill Clinton's national security adviser from 1997 to 2001 and Mrs. Clinton's foreign policy adviser when she ran against you in 2008, and who stole documents from the National Archives in 2003 by hiding them under an on-site construction trailer? Do you know that Bill got Sandy a no-jail-time deal including the return of his security clearance, and he got Sandy's prosecutor a federal judgeship?</p>
<p>Mr. President, when you ran against Hillary Clinton, you promised the most transparent government in history. Do you honestly think you have given us that?</p>Judge Andrew P. Napolltano2015-03-13T06:57:00ZA Lone Wolf PresidentJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/A-Lone-Wolf-President/426753941439230763.html2015-03-05T08:00:00Z2015-03-05T08:00:00Z<p><span>Can the president rewrite federal laws? Can he alter their meaning? Can he change their effect? These are legitimate questions in an era in which we have an unpopular progressive Democratic president who has boasted that he can govern without Congress by using his phone and his pen, and a mostly newly elected largely conservative Republican Congress with its own ideas about big government.</span><br /><span><br /></span><span>These are not hypothetical questions. In 2012, President Obama signed executive orders that essentially said to about 1.7 million unlawfully present immigrants who arrived in the U.S. before their 16th birthdays and who are not yet 31 years of age that if they complied with certain conditions that he made up out of thin air they will not be deported.</span><br /><span><br />In 2014, the president signed additional executive orders that essentially made the same offer to about 4.7 million unlawfully present immigrants, without the age limits that he had made up out of thin air. A federal court enjoined enforcement of the 2014 orders last month.</span><br /><span><br />Last week, the Federal Communications Commission -- the bureaucrats appointed by the president who regulate broadcast radio and television -- decreed that it has the authority to regulate the Internet, even though federal courts have twice ruled that it does not.</span><br /><span><br />Also last week, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, whose director is appointed by the president, proposed regulations that would outlaw the only mass-produced bullets that can be fired from an AR-15 rifle. This rifle has been the target of the left for many years because it looks like a military weapon; yet it is a lawful and safe civilian rifle commonly owned by many Americans.</span><br /><span><br />This week, the president's press secretary told reporters that the president is seriously thinking of signing executive orders intended to raise taxes on corporations by directing the IRS to redefine tax terminology so as to increase corporate tax burdens. He must have forgotten that those additional taxes would be paid by either the shareholders or the customers of those corporations, and those shareholders and customers elected a Congress they had every right to expect would be writing the tax laws. He has eviscerated that right.</span><br /><span><br />What's going on here?</span><br /><span><br />What's going on is the exercise of authoritarian impulses by a desperate president terrified of powerlessness and irrelevance, the Constitution be damned. I say "damned" because when the president writes laws, whether under the guise of administrative regulations or executive orders, he is effectively damning the Constitution by usurping the powers of Congress.</span><br /><span><br />The Constitution could not be clearer. Article I, section 1 begins, "All legislative Powers herein granted shall be vested in a Congress of the United States." Obama actually asked Congress to write the laws he is now purporting to write, and Congress declined, and so he does so at his peril.</span><br /><span><br />In 1952, President Truman seized America's closed steel mills because steel workers went on strike and the military needed hardware to fight the Korean War. He initially asked Congress for authorization to do this, and Congress declined to give it to him; so he seized the mills anyway. His seizure was challenged by Youngstown Sheet & Tube Co., then a huge operator of steel mills. In a famous Supreme Court decision, the court enjoined the president from operating the mills.</span><br /><span><br />Youngstown is not a novel or arcane case. The concurring opinion by Justice Robert Jackson articulating the truism that when the president acts in defiance of Congress he operates at his lowest ebb of constitutional power and can be enjoined by the courts unless he is in an area uniquely immune from congressional authority is among the most highly regarded and frequently cited concurring opinions in modern court history. It reminds the president and the lawyers who advise him that the Constitution imposes limits on executive power.</span><br /><span><br />The president's oath of office underscores those limits. It requires that he enforce the laws faithfully. The reason James Madison insisted on using the word "faithfully" in the presidential oath and putting the oath itself into the Constitution was to instill in presidents the realization that they may need to enforce laws with which they disagree -- even laws they hate.</span><br /><span><br />But Obama rejects the Youngstown decision and the Madisonian logic. Here is a president who claims he can kill Americans without due process, spy on Americans without individualized probable cause, start wars on his own, borrow money on his own, regulate the Internet, ban lawful guns, tell illegal immigrants how to avoid the consequences of federal law, and now raise taxes on his own.</span><br /><span><br />One of the safeguards built into the Constitution is the separation of powers: Congress writes the laws, the president enforces the laws, and the courts interpret them. The purpose of this separation is to prevent the accumulation of too much power in the hands of too few -- a valid fear when the Constitution was written and a valid fear</span><span>Â </span><span id="OBJ_PREFIX_DWT424_com_zimbra_date" class="Object">today</span><span>.</span><br /><span><br />When the president effectively writes the laws, Congress is effectively neutered. Yet, the reason we have the separation of powers is not to protect Congress, but to protect all individuals from the loss of personal liberty. Under Obama, that loss has been vast. Will Congress and the courts do anything about it?</span></p>Judge Andrew P. Napolltano2015-03-05T08:00:00ZShould the Feds have a say in whether or not you vaccinate your child?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Should-the-Feds-have-a-say-in-whether-or-not-you-vaccinate-your-child/579936322307312486.html2015-02-05T22:36:00Z2015-02-05T22:36:00Z<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>To Paul, the issue is not science. That's because in a free society, we are free to reject scientific orthodoxy and seek unorthodox scientific cures. Of course, we do that at our peril if our rejection of truth and selection of alternatives results in harm to others.</p>
<p>The issue, according to Paul, is: WHO OWNS YOUR BODY? This is a question the government does not want to answer truthfully, because if it does, it will sound like Big Brother in George Orwell's novel "1984." That's because the government believes it owns your body.</p>
<p>Paul and no less an authority than the U.S. Supreme Court have rejected that concept. Under the natural law, because you retain the rights inherent in your birth that you have not individually given away to government, the government does not own your body. Rather, you do. And you alone can decide your fate with respect to the ingestion of medicine. What about children? Paul argues that parents are the natural and legal custodians of their children's bodies until they reach maturity or majority, somewhere between ages 14 and 18, depending on the state of residence.</p>
<p>What do the states have to do with this? Under our Constitution, the states, and not the federal government, are the guardians of public health. That is an area of governance not delegated by the states to the feds. Of course, you'd never know this to listen to the debate today in which Big Government politicians, confident in the science, want a one-size-fits-all regimen.</p>
<p>No less a champion of government in your face than Hillary Clinton jumped into this debate with a whacky Tweet that argued that because the Earth is round and the sky is blue and science is right, all kids should be vaccinated. What she was really saying is that in her progressive worldview, the coercive power of the federal government can be used to enforce a scientific orthodoxy upon those states and individuals who intellectually reject it.<br /><br />In America, you are free to reject it.</p>
<p>Clinton and her Big Government colleagues would be wise to look at their favorite Supreme Court decision: Roe v. Wade. Yes, the same Roe v. Wade that 42 years ago unleashed 45 million abortions also defines the right to bear and raise children as fundamental, and thus personal to parents, and thus largely immune from state interference and utterly immune from federal interference.</p>
<p>Paul's poignant question about who owns your body -- and he would be the first to tell you that this is not a federal issue -- cannot be ignored by Christie or Clinton or any other presidential candidate. If Paul is right, if we do own our bodies and if we are the custodians of our children's bodies until they reach maturity, then we have the right to make health care choices free from government interference, even if our choices are grounded in philosophy or religion or emotion or alternative science.</p>
<p>But if Paul is wrong, if the government owns our bodies, then the presumption of individual liberty guaranteed by the Declaration of Independence and the Constitution has been surreptitiously discarded, and there will be no limit to what the government can compel us to do or to what it can extract from us -- in the name of science or any other of its modern-day gods.</p>Judge Andrew P. Napolltano2015-02-05T22:36:00ZFeds Shooting Themselves in the FootJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Feds-Shooting-Themselves-in-the-Foot/759490334263591033.html2015-01-30T08:02:00Z2015-01-30T08:02:00Z<p>Ali Saleh al-Marri is a convicted conspirator who entered the United States before 9/11 in order to create a dreaded sleeper cell here that might someday launch an attack on Americans similar to what we witnessed earlier this month in Paris. When the feds woke from their slumber on 9/11, they wisely began to search immigration records for persons who came here with no discernible purpose from places known to spawn terrorist groups and who had overstayed their visas. Al-Marri was one such person.<br /><br /> The feds arrested him, originally on the visa violation, and then, after connecting the dots, on a series of conspiracies to aid terrorist organizations here and elsewhere.<br /><br /> After he was arrested by the FBI in Peoria, Ill., and while he was being held in federal custody, he was kidnapped by U.S. military officials who arrived at the lock-up purporting to possess the lawful authority to seize him, authorized by President George W. Bush himself.<br /><br /> Bush had signed an order declaring al-Marri an enemy combatant and directing the military to seize him from the custody of federal prosecutors and bring him to a Navy brig. In several of the numerous cases it lost, the Bush administration argued to federal courts that once it declared a person an enemy combatant, the person was stripped of all rights.<br /><br /> There was and is no such category in American law as enemy combatant. The Bush administration made it up from historical terminology. But the post-9/11 era was a fearful time, and most folks accepted Bush's unconstitutional stripping of rights from detained persons as a route to safety. Al-Marri would soon be stripped of more than his rights, and that would lead to less safety for the rest of us.<br /><br /> Al-Marri is in the news this week because he was recently released from a federal prison and returned to his native Qatar. He was involved in a prisoner swap for an innocent American couple wrongfully imprisoned there. The release of al-Marri has the neocons accusing President Obama of "letting free a known terrorist."<br /><br /> In our system, the president wears many hats. One is the chief federal law enforcement officer and another is the chief diplomat. In the former, he is subject to the laws Congress has written; in the latter, he is subject only to the Constitution. In the execution of foreign policy, he cannot commit a crime, of course, but if he did, he probably would not be prosecuted.<br /><br /> He recently secured the release of U.S. Army Sgt. Bowe Bergdahl by swapping him for five known al-Qaida leaders who had been held for 11 years without charges at the prison camp at Gitmo. Obama arguably provided aid to a terrorist organization by sending al-Qaida leaders back to their organization -- a felony for which his Department of Justice has successfully prosecuted Americans whose behavior was far more benign than his own.<br /><br /> Yet, the courts have been loath to interfere with any president's execution of foreign policy, no matter its apparent lawlessness. The courts permitted Abraham Lincoln to use troops to rob American banks, rape American women, and burn state and federal courthouses; they permitted Woodrow Wilson to prosecute those who sang German beer hall songs in public during World War I; and they permitted FDR to execute unsuccessful German saboteurs in the U.S. without any meaningful trial.<br /><br /> Because al-Marri was tortured by the U.S. Navy for two years, he pleaded guilty to one low-level crime, instead of to the true conspiracies with which he was involved -- and he received a reduction in his sentence commensurate with the number of days he endured the torture. The feds agreed to this because they were fearful of revealing what the Navy had done to him. He had served 87 percent of his federal sentence by the time of his release last month. The standard period of sentence service in the federal system before release is 85 percent.<br /><br /> The feds shot themselves in the foot on this al-Marri case. They had much evidence against him. They needn't have kept him naked, blindfolded, shackled and wearing earplugs for months. He should have been prosecuted aggressively and humanely in a federal court in Chicago or New York City, where the feds have yet to lose terror prosecutions and the trials are basically fair. Instead, after he was arrested by the FBI, kidnapped by the military and brought to a Navy brig in South Carolina, he endured a systematic, fruitless, detrimental-to-justice, rarely-heard-of-in-modern-American-history authorized prisoner abuse.<br /> The troops who tortured al-Marri are lucky; they could have and should have been court-martialed. The authorities who ordered it should have been prosecuted. If this had been the other way round -- if the FBI had kidnapped him from military custody and tortured him (this is unthinkable today) -- the FBI agents would have been fired and prosecuted.<br /><br /> Under federal law, all convicted federal prisoners are in the custody of the president. He can pardon, release, trade or commute a sentence for any prisoner as he sees fit. But he cannot undo the demonstrable legal mess a predecessor created by his fixation on torture.</p>Judge Andrew P. Napolltano2015-01-30T08:02:00ZWho Will Keep Our Freedoms Safe?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Who-Will-Keep-Our-Freedoms-Safe/967994582406408957.html2015-01-23T00:35:00Z2015-01-23T00:35:00Z<p style="text-align: left;"><span>While the Western world was watching and grieving over the slaughter in Paris last week, and my colleagues in the media were fomenting a meaningless debate about whether President Obama should have gone to Paris to participate in a televised parade, the feds took advantage of that diversion to reveal even more incursions into our liberties than we had known about.</span><br /><span><br />We already knew that the NSA, our 60,000 domestic spies, has captured and retained the contents of nearly all emails, text messages, telephone calls, bank statements, utility bills and credit card bills of all Americans since 2009. We already knew that Obama has used CIA drones to kill Americans overseas and claims that he somehow can do so legally and secretly notwithstanding the express prohibitions in the Constitution.</span><br /><span><br />We already knew that President George W. Bush authorized the illegal torture of a hundred-plus people, about 20 percent by "mistake," and now we know that because he refuses to prosecute the torturers, Obama is as culpable for the torture as Bush is.</span><br /><span><br />Last week, however, the Department of Justice revealed that since the 1990s, the Drug Enforcement Administration, whose job is to interdict controlled dangerous substances before they enter our borders and to do so consistent with the Constitution, has been monitoring the phone calls of selected Americans. Prior to 2001, the DEA intimidated, coerced and bribed telecom providers into making their telephone lines available to its agents. Since 2001, it has no doubt taken advantage of the provisions of the so-called Patriot Act that permit federal agents to write their own search warrants to custodians of records, in direct contravention of the Constitution, which requires warrants from judges.</span><br /><span><br />Last week, the Government Communications Headquarters, the British equivalent of the NSA, known as GCHQ, acknowledged that it has been reading the domestic emails of U.S. journalists since 2008. This can only be done (a) by stealth illegally, or (b) if the NSA has given this data illegally to the GCHQ, or (c) on the odd chance that an American domestic email or cellphone call has been routed through Canada or Britain. The GCHQ boasted of its ability to download 70,000 American emails in 10 minutes! Did you hear Obama condemn this?</span><br /><span><br />As if all this were not enough to make one ask what is going on with our privacy, also last week, former federal agents revealed that more than 50 American law enforcement agencies, including the FBI and the U.S. Marshals Service, possess a new handheld radar device that sends sound waves through walls and receives back images on a screen of persons on the other side of the walls.</span><br /><span><br />This permits cops on the street to view an image of you in the privacy of your home without your knowledge or con</span><span id="DWT368" class="ZmSearchResult"><span id="DWT370" class="ZmSearchResult">sent</span></span><span> </span><span>and without a search warrant. For the past 13 years, the Supreme Court has refused to permit evidence from similar heat-seeking devices to be used in criminal prosecutions, and the cops have reacted by using a more high-tech version, ostensibly to see whether "anyone is home."</span><br /><span><br />None of these flagrant violations of privacy, dignity and basic American constitutional values was enacted by a majority vote of any repre</span><span id="DWT372" class="ZmSearchResult"><span id="DWT374" class="ZmSearchResult">sent</span></span><span>ative body of lawmakers -- and yet none has been stopped by those lawmakers. That's because we have a deep state system in American government, whereby certain law enforcement, military, intelligence and diplomatic personnel can do as they wish, no matter which party controls the legislative and executive branches and in hair-splitting defiance of the courts.</span><br /><span><br />That hair-splitting defiance argues that the Fourth Amendment's guarantee of privacy in the "persons, houses, papers and effects" of all in America only pertains to criminal prosecutions; thus, the government, this argument goes, can invade all the privacy it wants so long as it is for some other -- non-criminal -- purpose. Supreme Court decisions recognizing privacy as a personal natural right, as well as American constitutional history (the Fourth Amendment was written largely in reaction to British soldiers invading privacy by looking for items in the colonists' homes to tax), profoundly reject that argument.</span><br /><span><br />How does the government get away with this? If you peered into your neighbor's bedroom with a high-tech device, you'd be prosecuted or sued. Yet when the government does this, most folks are supine enough to be grateful for the safety it produces. That's what Big Brother wants you to believe. What safety? Who will keep us safe from the government? Who will keep our personal liberties safe? What repre</span><span id="DWT376" class="ZmSearchResult"><span id="DWT378" class="ZmSearchResult">sent</span></span><span>ative government splits hairs in order to defy the Constitution, rather than complying with its oath to protect it?</span><br /><span><br />In effect, the government argues that it cannot keep us safe unless it violates the rights of the known innocent. If you buy that argument and surrender your own privacy, good luck -- but don't try to surrender anyone else's. Freedom is natural and personal and cannot be surrendered by others. If you think the pre</span><span id="DWT380" class="ZmSearchResult"><span id="DWT382" class="ZmSearchResult">sent</span></span><span> </span><span>federal government will keep you safe because you let it take your freedoms, what will protect you from a future federal government when all your freedoms have been surrendered?</span></p>Judge Andrew P. Napolltano2015-01-23T00:35:00ZWhat Freedom of Speech?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-Freedom-of-Speech/445377978310326690.html2015-01-16T00:34:00Z2015-01-16T00:34:00Z<p style="text-align: left;"><span>The photos of 40 of the world's government leaders marching arm-in-arm along a Paris boulevard on</span><span> </span><span id="OBJ_PREFIX_DWT345_com_zimbra_date" class="Object">Sunday</span><span> </span><span>with the president of the United States not among them was a provocative image that has fomented much debate. The march was, of course, in direct response to the murderous attacks on workers at the French satirical magazine Charlie Hebdo by a pair of brothers named Kouachi, and on shoppers at a Paris kosher supermarket by one of the brothers' comrades.</span><br /><span><br />The debate has been about whether President Obama should have been at the march. The march was billed as a defense of freedom of speech in the West; yet it hardly could have been held in a less free speech-friendly Western environment, and the debate over Obama's absence misses the point.</span><br /><span><br />In the post-World War II era, French governments have adopted a policy advanced upon them nearly 100 years ago by Woodrow Wilson. He pioneered the modern idea that countries' constitutions don't limit governments; they unleash them. Thus, even though the French Constitution guarantees freedom of speech, French governments treat speech as a gift from the government, not as a natural right of all persons, as our Constitution does.</span><br /><span><br />The French government has prohibited speech it considers to be hateful and even made it criminal. When the predecessor magazine to Charlie Hebdo once mocked the death of Charles de Gaulle, the French government shut it down -- permanently.</span><br /><span><br />The theory of anti-hate speech laws is that hate speech often leads to violence, and violence demands police and thus the expenditure of public resources, and so the government can make it illegal to spout hatred in order to conserve its resources. This attitude presumes, as Wilson did when he prosecuted folks for publicly singing German songs during World War I, that the government is the origin of free speech and can lawfully limit the speech it hates and fears. It also presumes that all ideas are equal, and none is worthy of hatred.</span><br /><span><br />When the massacres occurred last week in Paris, all three of the murderers knew that the police would be unarmed and so would be their victims. It was as if they were shooting fish in a barrel. Why is that? The answer lies in the same mentality that believes it can eradicate hate by regulating speech. That mentality demands that government have a monopoly on violence, even violence against evil.</span><br /><span><br />So, to those who embrace this dreadful theory, the great loss in Paris last week was not human life, which is a gift from God; it was free speech, which is a gift from the state. Hence the French government, which seems not to care about innocent life, instead of addressing these massacres as crimes against innocent people, proclaimed the massacres crimes against the freedom of speech. Would the French government have reacted similarly if the murderers had killed workers at an ammunition factory, instead of at a satirical magazine?</span><br /><span><br />And how hypocritical was it of the French government to claim it defends free speech! In France, you can go to jail if you publicly express hatred for a group whose members may be defined generally by characteristics of birth, such as gender, age, race, place of origin or religion.</span><br /><span><br />You can also go to jail for using speech to defy the government. This past weekend, millions of folks in France wore buttons and headbands that proclaimed in French: "I am Charlie Hebdo." Those whose buttons proclaimed "I am not Charlie Hebdo" were asked by the police to remove them. Those who wore buttons that proclaimed, either satirically or hatefully, "I am Kouachi" were arrested. Arrested for speech at a march in support of free speech? Yes.</span><br /><span><br />What's going on here? What's going on in France, and what might be the future in America, is the government defending the speech with which it agrees and punishing the speech with which it disagrees. What's going on is the assault by some in radical Islam not on speech, but on vulnerable innocents in their everyday lives in order to intimidate their governments. What's going on is the deployment of 90,000 French troops to catch and kill three murderers because the government does not trust the local police to use guns to keep the streets safe or private persons to use guns to defend their own lives.</span><br /><span><br />Why do some in radical Islam kill innocents in the West in order to affect the policies of Western governments? Might it be because the fruitless Western invasion of Iraq killed 650,000 persons, most of whom were innocent civilians? Might it be because that invasion brought al-Qaida to the region and spawned ISIS? Might it be because Obama has killed more innocent civilians in the Middle East with his drones than were killed by the planes in the U.S. on 9/11? Might it be because our spies are listening to us, rather than to those who pose real dangers?</span><br /><span><br />What does all this have to do with freedom of speech? Nothing -- unless you believe the French government.</span></p>Judge Andrew P. Napolltano2015-01-16T00:34:00ZLamenting Liberty LostJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Lamenting-Liberty-Lost/-912040277804993222.html2015-01-09T04:57:00Z2015-01-09T04:57:00Z<p style="text-align: left;"><span>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.</span><br /><span><br />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.</span><br /><span><br />The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of </span><span id="OBJ_PREFIX_DWT4125_com_zimbra_date" class="Object">September 2015</span><span>. 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</span><span> </span><span id="OBJ_PREFIX_DWT4124_com_zimbra_date" class="Object">today</span><span>. Both parties participate in it. They have turned the public treasury into a public trough.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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?</span><br /><span><br />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.</span></p>Judge Andrew P. Napolltano2015-01-09T04:57:00ZIs Government Faithful to the Constitution?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Is-Government-Faithful-to-the-Constitution/436751925336991683.html2014-12-18T08:00:00Z2014-12-18T08:00:00Z<p style="text-align: left;"><span>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.</span><br /><span><br />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.</span><br /><span><br />The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of </span><span id="OBJ_PREFIX_DWT4125_com_zimbra_date" class="Object">September 2015</span><span>. 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</span><span> </span><span id="OBJ_PREFIX_DWT4124_com_zimbra_date" class="Object">today</span><span>. Both parties participate in it. They have turned the public treasury into a public trough.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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?</span><br /><span><br />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.</span></p>Judge Andrew P. Napolltano2014-12-18T08:00:00ZAll Torture is Criminal Under All CircumstancesJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/All-Torture-is-Criminal-Under-All-Circumstances/709441048250899388.html2014-12-11T19:42:00Z2014-12-11T19:42:00Z<p style="text-align: left;">When the head of the CIA's torture unit decided to destroy videotapes of his team's horrific work, he unwittingly set in motion a series of events that led to the release this week of the most massive, detailed documentation of unlawful behavior by high-ranking government officials and intentional infliction of pain on noncombatants by the United States government since the Civil War era. Here is the backstory.<br /><br />One of the reasons repeatedly stated by President George W. Bush for the American invasion of Iraq in 2003 was the maintenance of "torture rooms" by Saddam Hussein. While making this very argument, Bush was secretly authorizing CIA agents to engage in similar unlawful behavior for similar purposes: intelligence and deterrence. Bush sounded credible when he claimed that his administration adhered to federal and international legal standards.<br /><br />He knew he could make that claim because the torturers were sworn to secrecy, as were their congressional regulators. The CIA charter permits Congress to regulate the CIA in secret. Congress has established two secret congressional committees, one from the Senate and one from the House, to serve as monitors and regulators of CIA activities. The stated reason for the secrecy is to keep our enemies from knowing what the CIA is doing. The effect of the secrecy has been a muzzled Congress, lied to by law-breaking and rogue CIA officials.<br /><br />Until now.<br /><br />When the Senate Intelligence Committee staff learned of the destroyed videotapes (a federal crime the Justice Department declined to prosecute) and reported that destruction to Sen. Dianne Feinstein, D-Calif., the committee chair, she ordered an investigation to determine whether the CIA officials who had briefed her committee had told the truth. If they had been truthful, she reasoned, why destroy the tapes? In order to conduct that investigation, Feinstein ordered the CIA to make available to her committee's investigators whatever documents and digital data the investigators sought.<br /><br />During the course of the investigation, Senate investigators suspected their computers had been hacked. When they brought those suspicions to Feinstein, she ordered another investigation, this one aimed at identifying the hackers. That investigation revealed that the CIA itself was spying on its own Senate investigators. When she approached CIA Director John Brennan about this, he denied it. When she went to the floor of the Senate -- where her vow of secrecy may lawfully be disregarded -- to reveal that the CIA had spied on her and her fellow Senators and their investigators, the CIA denied it. When she released incontrovertible evidence of CIA domestic spying, Brennan admitted that his agents had spied on their regulators (another federal crime the feds declined to prosecute), but claimed it was needed because the regulators had exceeded their authority in examining CIA documents.<br /><br />All this put the original investigation of why the tapes of the torture had been destroyed and whether the CIA had been truthful to the White House and its congressional regulators into high gear. When the investigators' final report -- all 6,000 pages of it, much in lurid detail -- was completed, it was sent to the White House, which decided to release it. The CIA begged for redactions of agents' names and other identifiers, and a long process of negotiation ensued between the White House, the State Department, the CIA and the Senate. This week, Feinstein had had enough and decided to release the report with the then-agreed-upon redactions.<br /><br />The report is damning in the extreme to the Bush administration and to the CIA leadership. It offers proof that the CIA engaged in physical and psychological torture, some of which was authorized -- unlawfully, yet authorized -- most of which was not. The report also demonstrates that CIA officials repeatedly lied to the White House and to Senate regulators about what they were doing, and they lied about the effectiveness of their torture.<br /><br />If the allegations in the report are true, we have war criminals, perjurers, computer hackers and thugs on the government payroll. We also have dupes. The most politically successful argument the torture lobby has made is that we are all safer because of these dirty deeds. This Senate report refutes that argument by demonstrating that no serious actionable intelligence came from the torture.<br /><br />All torture is criminal under all circumstances -- under treaties to which the U.S. is a party, under the Constitution that governs the government wherever it goes, and under federal law. Torture degrades the victim and the perpetrator. It undermines the moral authority of a country whose government condones it. It destroys the rule of law. It exposes our own folks to the awful retaliatory beheadings we have all seen. It is slow, inefficient, morbid and ineffective. It is a recruiting tool for those who have come to cause us harm. All human beings possess basic inalienable rights derived from the natural law and protected by the Constitution the CIA has sworn to uphold. Torture violates all of those rights.<br /><br />What should we make of this report on government torture? In a free society in which the government works for us, we have a right to know what it is doing in our names, and we have a reasonable expectation that the laws the government enforces against us it will enforce against itself. But don't hold your breath waiting for that to happen.</p>Judge Andrew P. Napolltano2014-12-11T19:42:00ZAnother Ferguson Down the Road?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Another-Ferguson-Down-the-Road/-724516658005454884.html2014-12-05T08:32:00Z2014-12-05T08:32:00Z<p style="text-align: left;"><span>The city of Ferguson, Mo., is now burned into our consciousness in a way that few other places are. In my youth, the race riots in Newark, Detroit and Los Angeles marked turning points in my own and in the public's awareness of the problems of a black underclass that perceives itself as being so unfairly governed by a white power structure that it resorted to violence.</span><br /><span><br />Those disturbances also revealed the difficulties of hardworking black families trying to make decent lives for themselves by endeavoring to leave the inner cities and, as basketball player-turned-philosopher Charles Barkley stated, the opportunities of inner city "scumbags" willing to steal and pillage and incite for some temporary material or political gain.</span><br /><span><br />We saw this again in Los Angeles during the Rodney King affair, in which a jury in a state prosecution acquitted two white cops of savagely beating an unarmed black man, and the mobs rioted. Thereafter, the same cops were charged with federal crimes based on the same facts and were convicted by a federal court.</span><br /><span><br />As bad as it was for those cops to have beaten King, it was worse for the government to violate the prohibition on double jeopardy by using the legal fiction of federal jurisdiction and federal prosecution as being so distinct from what the State of California had tried and failed to do that the second trial did not constitute a constitutionally prohibited repeated attempt to convict. It did.</span><br /><span><br />Fast-forward to Ferguson, and we see the toxic mixture of a black underclass and a white power structure and the corrupt advantages that people on the make and people on the take can exploit from it.</span><br /><span><br />In Ferguson, the law enforcement case is far more straightforward than the racial complexities. A white cop put 10 bullets into the body of an unarmed black youth with whom he was wrestling for control of his gun. The cop succeeded in wresting the gun from the youth and then proceeded to kill him. Once the cop had control of the gun and the youth had been immobilized, all additional gun firing is criminal. That the youth was the aggressor does not diminish the cop's obvious criminal overuse of deadly force.</span><br /><span><br />The grand jury -- whose job is merely to certify that the state has enough evidence to justify the charges it seeks to present against a given defendant -- was subjected to the type of evidence that only trial juries hear, including a soliloquy from the cop himself and all the exculpatory evidence the prosecutor could find.</span><br /><span><br />Prosecutors often loathe and sometimes even hide exculpatory evidence, but this county prosecutor must have been afraid to seek an indictment, and so he shrewdly manipulated this grand jury out of its role of determining whether the state had probable cause to try the cop and into the role of a trial jury, which is to judge whether the state has proved guilt beyond a reasonable doubt.</span><br /><span><br />If the feds now come along and indict the cop on federal charges, they would be correcting the error and perversion of the grand jury. This would not be double jeopardy as in the King case, because the cop in Ferguson has never been charged on the basis of the facts in this case.</span><br /><span><br />Would we even know of this case if both the cop and the youth had been of the same race? Probably not.</span><br /><span><br />The long and unhappy history of race relations in America now has another fiery chapter with more tragedy. The tragedy is the result of the governmental use of race as a basis for decision-making. When cops are hired because they are white, when police suspect criminal behavior on the part of youth because the youth is black and then act on those suspicions, when a predominantly black populace feels -- however accurately or inaccurately -- that it is being treated unfairly by the government and the government fails to address this perception, when hucksters and scumbags who are drawn to these conflagrations use racial vulnerability to rob and pillage and arouse and destroy, and when the sides are arrayed along racial lines, the government has failed to protect the liberty and property of the people it was hired to protect.</span><br /><span><br />The failure in Ferguson is across the board. From a city government whose police force makes its minority populace feel vulnerable and defends an unnecessary public killing by one of its cops, to a county prosecutor afraid to take responsibility for a proper public prosecution, to a governor missing in action, to a president who sounds like he wants to federalize police, we have an out-of-control stewpot boiling over into a wave of destruction.</span><br /><span><br />The police need to be strong enough to protect life, liberty and property, and vulnerable enough to tolerate all political opinions, even those filled with ignorance and hate. The militarization of local police -- perfected during the past two presidential administrations, which have given local cops military surplus intended to be used on enemy armies in foreign lands -- if uncorrected, will lead to a police state. A police state is one in which the government's paramount concern is for its own safety, and not for the lives, liberties and properties of those it has sworn to protect.</span><br /><span><br />Are the police our servants or our masters? Can the mobs in the streets express political opinions without harming innocents? Can the government be dedicated to preserving the personal liberty -- the right to be oneself -- of even the most vulnerable among us? Can we use the tragedy of Ferguson to achieve a freedom-generated nonracial consensus on all this? If we fail to address this maturely, I fear that more Fergusons will soon be upon us.</span></p>Judge Andrew P. Napolltano2014-12-05T08:32:00ZWhat to be Thankful ForJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-to-be-Thankful-For/42977484721754986.html2014-11-28T00:26:00Z2014-11-28T00:26:00Z<p style="text-align: left;"><span>What if the government is designed to perpetuate itself? What if the real levers of governmental power are pulled by agents and diplomats and bureaucrats behind the scenes? What if they stay in power no matter who is elected president or which major political party controls Congress?</span><br /><span><br />What if the frequent public displays of adversity between the Republicans and the Democrats are just a facade and a charade? What if both major political parties agree on the transcendental issues of our day?</span><br /><span><br />What if they both believe that our rights are not natural to our humanity but instead are gifts from the government? What if they both believe that the government that gives gifts to its people can take those gifts back?</span><br /><span><br />What if the leadership of both parties give only lip service to Thomas Jefferson's words in the Declaration of Independence that each of us is "endowed by (our) Creator with certain inalienable rights, (and) among these is life, liberty, and the pursuit of happiness," and that the purpose of government is to protect these rights? What if the leadership of both major political parties dismiss these ideas as just Jefferson's outdated musings? What if Jefferson's arguments have been enacted into the federal laws that all in government have sworn to uphold?</span><br /><span><br />What if the leadership of the two major political parties believe that due process permits mothers to kill the babies in their wombs out of fear or convenience? What if the leaders of both major political parties believe that the president should be able to kill whomever he wants out of fear, because due process is an inconvenience? What if President Obama killed Americans and claimed that he did so legally, relying on the convenient arguments of his attorney general, who falsely told him he could kill? What if the Constitution requires due process whenever the government wants someone's life, liberty or property, whether convenient or not?</span><br /><span><br />What if the congressional leadership and most of the membership from both political parties believe in perpetual war and perpetual debt? What if the history of America in the past 100 years is proof of that nearly universal belief among the political classes?</span><br /><span><br />What if the political classes in America believe that war is the health of the state? What if the leadership of those classes want war so as to induce the loyalty of the voters, the largesse of the taxpayers and the compliance of the people? What if the political classes use war to enrich their benefactors? What if the government has been paying for war by increasing its debt?</span><br /><span><br /></span><span>What if the political classes have been paying for prosperity by increasing the government's debt? What if those classes have controlled the cash-creating computers at the Federal Reserve and the free cash the Fed creates is to bankers and traders what heroin is to addicts? What if the $17.5 trillion current federal government debt has largely been caused by borrowing to pay for war and false prosperity?</span><br /><span><br />What if the silent damage that the artificial creation of cash causes has not been manifested in price inflation but in equity and savings deflation? What if the manifestation of equity deflation is that too much of everything we own secures too much debt? What if the folks at the Fed who create the cash have kept interest rates so low that there is little incentive to save?</span><br /><span><br />What if we all own a smaller percentage of what we think we own because the value of what we own has decreased as the debt on what we own has increased? What if the banks have borrowed the money that they lend? What if the stock market is soaring on borrowed money? What if mansions and shopping malls are popping up, but they secure more debt than they are worth? What happens when the plug is pulled on this temporary artifice as those debts come due?</span><br /><span><br />What if the government demands transparency from all of us but declines to be transparent to us? What if the government fosters the make-believe that it exists to serve us? What if it has access to all of our communications, bank accounts, health and legal records, and monthly bills? What if the government knows more about us than we know about it?</span><br /><span><br />What if the government stays in power by bribery? What if it bribes the rich with bailouts, the middle class with tax cuts and the poor with welfare? What if the courts approved this bribery?</span><br /><span><br />What if, on</span><span> </span><span id="OBJ_PREFIX_DWT4561_com_zimbra_date" class="Object">Thanksgiving</span><span>, our gratitude is not to the government that assails our freedoms, but to the God who created us? What if our gratitude on</span><span> </span><span id="OBJ_PREFIX_DWT4562_com_zimbra_date" class="Object">Thanksgiving</span><span> </span><span>is for life, liberty and the pursuit of happiness? What if that for which we are truly grateful are the aspects of our humanity that are in God's image and likeness? What if those aspects have nothing to do with the government?</span></p>Judge Andrew P. Napolltano2014-11-28T00:26:00ZQuestions for AG Nominee Loretta LynchJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Questions-for-AG-Nominee-Loretta-Lynch/876586137789743228.html2014-11-14T22:34:00Z2014-11-14T22:34:00Z<p style="text-align: left;"><span>Within hours of realizing that his party lost control of the U.S. Senate last week, President Obama nominated Loretta Lynch, the chief federal prosecutor in Brooklyn, N.Y., and an outstanding and apolitical professional, to be the next attorney general. The current attorney general, Eric Holder, resigned last month.</span><br /><span><br />Lynch is sure to be confirmed by either the present Democratic-controlled Senate this fall or by the newly constituted Republican-controlled Senate early next year -- and she should be. But the process of confirming her should capture the interest of all Americans concerned about the loss of personal freedoms in our present-day Orwellian world in which the Obama administration has killed innocent Americans, spied on trillions of conversations and emails without probable cause, and declined to enforce laws with which it disagrees. Republican senators have a duty to ask her probing questions.</span><br /><span><br />Is this just inside-the-Beltway stuff, or should you care who is the chief federal law enforcement officer in the land? You should care, and here is why. When the United States was founded, the essence of the government was the diffusion of power between the states and the federal government. At the outset, state attorneys general were the engines that drove law enforcement, as the U.S. attorney general was involved exclusively with governmental relations between the states and the feds and protecting federal interests -- which included federal property and federal currency. The job came with a small office and a handful of remotely venued prosecutors. The states checked federal law enforcement excess by not cooperating with it or even judicially invalidating it.</span><br /><span id="OBJ_PREFIX_DWT356_com_zimbra_date" class="Object"><br />Today</span><span>, the opposite is the case. When the feds want something, they bully the states aside, and when the feds get away with something, the states will soon follow.</span><span> </span><span id="OBJ_PREFIX_DWT357_com_zimbra_date" class="Object">Today</span><span>, the states are powerless to check federal excess, and so Attorney General Holder became President Obama's enabler in some of the most egregious violations of the natural law, the Constitution and federal law in modern American history.</span><span> </span><span id="OBJ_PREFIX_DWT358_com_zimbra_date" class="Object">Today</span><span>, the attorney general -- often called "General" by law enforcement -- commands an army of 90,000 lawyers, FBI agents, investigators, clerks, pilots, even troops. There are currently in excess of 4,000 federal criminal statutes for her to enforce, and she sets the tone for law enforcement throughout the country.</span><br /><span><br />Hence, I suggest to members of the Senate Judiciary Committee that they permit Lynch to distinguish herself from Holder by inducing her to answer the following questions:</span></p>
<ul style="list-style-type: square;">
<li>Will you advise the president, as Holder did, that his careful, secret, conscientious deliberations about the legal guilt of some Americans are a constitutionally adequate substitute for due process, such that he can kill uncharged, untried, unsentenced Americans?</li>
<li>Do you defend the president's killing two innocent American children, as Holder did?</li>
<li>Will you advise the president that he can use his prosecutorial discretion in such a manner that American borders become open as they did for Central American children last summer, and that foreign nationals who are here illegally can legally remain here without complying with the laws Congress has written?</li>
<li>Will you tell the president that the NSA can disregard the Constitution and execute general warrants, which permit the bearer to search wherever he wishes and seize whatever he finds, even though the Fourth Amendment was written to prevent general warrants?</li>
<li>Can the president decline to enforce laws with which he disagrees without violating his oath to enforce federal laws faithfully?</li>
<li>Will you advise the president that he can subpoena the home telephone records and the personal email accounts of Associated Press and Fox News reporters, as Holder did?</li>
<li>Will you permit state and local police and the IRS to seize the property of known innocents who have not been charged with criminal behavior, much less convicted of it, and then retain much of the seized property even if the persons from whom it was seized are acquitted?</li>
<li>Will you permit law enforcement to break the law in order to enforce it?</li>
<li>Will you condone law enforcement using tanks and battering rams to deliver subpoenas?</li>
<li>Will you permit law enforcement personnel to create crimes so that they can solve the crimes they created and then boast about the crimes they claim to have solved?</li>
<li>Do you accept the presumption of liberty, which means that the government must respect individual choices unless and until it can prove violations of the law to a judge or jury?</li>
</ul>
<span><br />It is time for a national debate about the role of law enforcement in our lives, and the confirmation hearings on the nomination of Loretta Lynch to become attorney general can provide an excellent platform. If she agrees that the Constitution is not a neutral instrument as between the people and the government because it was written to keep the government off our backs, she will be an antidote to Obama's law breaking.</span><br /><span><br />But I think I may be wishing for too much. She is, after all, his nominee.</span>
<p> </p>Judge Andrew P. Napolltano2014-11-14T22:34:00ZMore Culture Wars?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/More-Culture-Wars/-348944442891832063.html2014-11-07T21:14:00Z2014-11-07T21:14:00Z<p><span>The Republicans will control the U.S. Senate for the next two years. Will it make a difference?</span><br /><span><br />The two major political parties are more alike than they are different. On the two paramount issues of our day -- war and debt -- they are identical. With the exception of Democratic progressives and Republican libertarians, the two parties stand for perpetual war and perpetual debt. Both stances increase the power of the government, and each invites present and future destruction.</span><br /><span><br />A healthy society should avoid war at all costs, except when immediately vital for its own self-defense. A healthy government should pay its bills and not push them off to the next generation. Do you know any American whose freedom and safety have been enhanced or fortified because of all our empire building in the Middle East? Do you know that the federal government borrowed two trillion dollars to wage these wars and now spends twenty cents of every dollar in interest on its debt? Do you know that the congressional leadership and most of the rank and file of both political parties have brought this about?</span><br /><span><br />There are two great freedoms being assaulted under the radar that will soon come to the fore: the freedom to live and the freedom to speak. Both parties use abortion as a litmus test. You want the Democratic nomination for any federal or state office; you need to support a woman's right to abortion. You want the Republican nomination for any federal or state office; you better claim that you are pro-life.</span><br /><span><br />I say "claim" because that's all Republicans need to do to satisfy each other. If Republicans truly were pro-life, they'd have passed a one-paragraph statute when they ran the Congress and George W. Bush was in the White House that legally defined a fetus in the womb as a natural person. Of course, morally and biologically, a fetus is a natural person. The fetus has human parents and possesses a fully actualizable human genome -- all the genetic materials needed to grow and flourish and possess self-directed humanity. But no such legislation ever came.</span><br /><span><br />Since the Supreme Court denied personhood to every fetus in 1973, much as it had done to African-Americans in 1857, more than 44,000,000 babies have met the abortionists' vacuum and scalpel. Will a newly revived Republican Congress address personhood to the abortionist in chief in the White House? Don't hold your breath.</span><br /><span><br />After the right to life, the next great freedom under siege is the freedom of speech. Here, too, both parties in Congress have failed us. When Congress in 2001 enacted the Patriot Act, which permits federal agents to write their own search warrants in utter defiance and direct contradiction of the Fourth Amendment, which commands that only judges may do so, it also prohibited the recipients of agent-written search warrants from talking about them. At least a half-dozen federal judges have found this infringement of speech unconstitutional, yet federal agents who serve their own search warrants continue to threaten the recipients against talking to anyone about them. This, too, came about with the support of the leadership of both political parties in Congress.</span><br /><span><br />Not content with commanding silence about search warrants, the Democrats in the Senate attempted to offer an amendment to the Constitution last summer, which, if ratified, would have weakened the First Amendment by permitting Congress and the states to punish the political speech of groups. Three years ago, the Supreme Court, in a case called Citizens United, held that free political speech is such a highly valued and constitutionally protected asset in American society that it may be enjoyed not only by individuals, but also by groups of two or more persons, such as labor unions, foundations, nonprofits, think tanks, partnerships and corporations.</span><br /><span><br />Outraged that corporations can spend money to affect the outcome of campaigns, rejecting the concept that buying an advertisement in a newspaper or on TV is speech, and wanting to remove the word "free" from free speech, the Democrats attempted to circulate to the states an amendment to the Constitution that would have made the government the arbiter of acceptable political speech. Is Vladimir Putin consulting the Democrats?</span><br /><span><br />Yet, did you hear any Republicans in the recent elections call out any Democrats for this stunt? The First Amendment has remained pristine since it was ratified in 1791, and the Democrats want to change that, and the Republicans have gone mute.</span><span> </span><br /><span><br />A lame duck President Obama facing a Congress he hates and fears may become reckless. We should expect that. But if somehow he facilitates the killing of more babies in their mothers' wombs or the suppression of more political speech from his critics, what will a Republican Congress do? What is its track record?</span></p>Judge Andrew P. Napolltano2014-11-07T21:14:00ZEbola, the IRS and your rightsJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Ebola-the-IRS-and-your-rights/266411159210632043.html2014-10-30T07:13:00Z2014-10-30T07:13:00Z<p><span>In the years following the adoption of the Constitution, before he was Secretary of State under President Thomas Jefferson and then president himself, James Madison, who wrote the Constitution, was a member of the House of Representatives. During that period of his life, he gave illuminating speeches and wrote elegant essays and letters about human freedom.</span><br /><span><br />In one of his essays, Madison noted that freedom came about in Europe when the people rose up and cast off or intimidated tyrants, who reluctantly granted the people the freedoms they sought. That was, in Madison's words, "power granting liberty." The American experience was the opposite, he argued. After we seceded from Great Britain, the free people of the 13 independent states voluntarily came together and through the states delegated discrete amounts of power to a central government. That was, in Madison's words, "liberty granting power," especially since the people reserved to themselves the liberties they did not delegate away.</span><br /><span><br />Much of the political class of the founding generation, unlike our own, viewed the Constitution as restraining, not unleashing, the government. They recognized along with Madison and Jefferson that natural rights -- areas of human behavior for which we do not need a government permission slip -- are truly inalienable. An inalienable right, like speech, worship, travel, self-defense and privacy for example, is one that cannot be taken away by majority vote or by legislation or by executive command. It can only be taken away after the behavior of the person whose restraint the government seeks has been found by a jury to have violated another's natural rights.</span><br /><span><br />This process and these guarantees are known</span><span> </span><span id="OBJ_PREFIX_DWT130_com_zimbra_date" class="Object">today</span><span> </span><span>as the presumption of liberty. Stated differently, because of our recognition of natural rights, and our history, values and written constitutional guarantees, we in America are self-directed and free to make our own choices. In fact, the constitutional guarantee of due process mandates that because our individual liberty is natural to us, it is always presumed; thus, it is always the government's obligation to demonstrate our unworthiness of freedom to a judge and jury before it can curtail that freedom. It is not the other way around.</span><br /><span><br />Until now.</span><br /><span><br />This past week has seen disturbing events in which the government, as if in "Alice in Wonderland" mode, has punished first and insisted its victims prove they are unworthy of that punishment. The IRS, for example, revealed that it has been seizing the contents of bank accounts of folks whose taxes have been fully paid. It has done so pursuant to a federal statute that permits confiscation if the government detects a series of bank deposits that appear to be structured so that a significant number of them are below $10,000. That number triggers a bank obligation of reporting the deposit to the feds.</span><br /><span><br />The original anti-structuring statute required the feds to prove that the structuring was done willfully so as to avoid reporting requirements, rather than innocently or for some other not unlawful purpose, as is often the case. After the Supreme Court reversed the first structuring conviction that made its way there because the feds had failed to prove it was "willful," Congress responded by removing the word "willful" -- and hence the burden of proving willfulness -- from the statute and authorizing the confiscations. This violation of the presumption of liberty happened to more than 600 Americans last year, and fewer than 120 of them were actually charged with a crime.</span><br /><span><br />Also last week, a nurse who returned to the U.S. from western Africa, where she had been caring for Ebola patients, was arrested at Newark Airport on orders from the governor of New Jersey and held in a tent in a parking lot in downtown Newark until she could prove she was not symptomatic with Ebola. This, too, violated the presumption of liberty. It is not she who must prove that she is not contagious in order for her to be set free; it is the government that must prove that she is symptomatic in order to restrain her. When she quite properly threatened to sue those who arrested her, they acknowledged that they had no evidence of her contagion and released her.</span><br /><span><br /></span><span>What's going on here?</span><br /><span><br />What's going on is the systematic governmental destruction of the presumption of liberty in the name of public safety. Politicians who want to appear bold and strong often ride a popular wave and ignore the rights of their targets. And those responsible for public safety -- all of whom have taken an oath to uphold the Constitution -- have forgotten that chief among their duties is the safekeeping of our freedoms.</span><br /><span><br />Would it be easier for the government to keep us safe from money laundering and Ebola if it could disregard the Constitution and trample personal freedoms? Yes, it would. But who would want to live in such a society? If the government can reverse the presumption of liberty over appearances, what is the value of constitutional guarantees? Whose freedom in America is safe</span><span> </span><span id="OBJ_PREFIX_DWT132_com_zimbra_date" class="Object">today</span><span>?</span></p>Judge Andrew P. Napolltano2014-10-30T07:13:00ZThe feds' new chill on free speechJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-feds-new-chill-on-free-speech/-683501684039844047.html2014-10-23T07:00:00Z2014-10-23T07:00:00Z<p>Earlier this week, the federal government's National Science Foundation, an entity created to encourage the study of science -- encouragement that it achieves by awarding grants to scholars and universities -- announced that it had awarded a grant to study what people say about themselves and others in social media. The NSF dubbed the project Truthy, a reference to comedian Stephen Colbert's invention and hilarious use of the word "truthiness."</p>
<p>The reference to Colbert is cute, and he is a very funny guy, but when the feds get into the business of monitoring speech, it is surely no joke; it is a nightmare. It is part of the Obama administration's persistent efforts to monitor communication and scrutinize the expressions of opinions it hates and fears.</p>
<p>We already know the National Security Agency has the digital versions of all telephone conversations and emails sent to, from or within the U.S. since 2005. Edward Snowden's revelations of all this are credible and substantiated, and the government's denials are weak and unavailing -- so weak and unavailing that many NSA agents disbelieve them.</p>
<p>But the government's unbridled passion to monitor us has become insatiable. Just two months ago, the Federal Communications Commission, which licenses broadcasters, threatened to place federal agents in cable television newsrooms so they can see how stories are generated and produced. The FCC doesn't even regulate cable, yet it threatened to enhance its own authority by monitoring cable companies from the inside.</p>
<p>What's going on here?</p>
<p>What's going on here, and has been going on since President Obama took office in January 2009, is a government with little or no fidelity to basic constitutional norms. There is no defense under the Constitution to any aspect of the government's -- federal, state, regional, local or hybrid; or any entity owned or controlled by any government; or any entity that exercises the government's coercive powers or spends or receives its money -- monitoring the expressive behavior of anyone in the U.S., not in a newsroom, on social media or anywhere else.</p>
<p>The NSF's stated purpose of the Truthy squad is to look for errors in speech, particularly errors that fuel hatred or political extremes. This monitoring -- this so-called search for error -- is totalitarian and directly contradicts well-grounded Supreme Court jurisprudence, for several reasons.</p>
<p>First, for the government to gather information -- public or private -- on any person, the Constitution requires that the government have "articulable suspicion" about that person. Articulable suspicion is a mature and objective reason to believe that the person has engaged in criminal behavior. Without that level of articulable belief, the government is powerless to scrutinize anyone for any reason.</p>
<p>The articulable suspicion threshold is vital to assure that people in America have the presumption of liberty and are free to choose their behavior unimpeded or threatened by the government. The feds cannot cast a net into the marketplace of ideas and challenge what it brings in. Were they able to do so, the constitutional protections for free expression and the primacy of liberty would be meaningless.</p>
<p>Second, the courts have repeatedly held that the First Amendment needs breathing room, and they also have held that government monitoring of speech curtails that breathing room. Stated differently, a person under observation changes behavior on account of the observation. Thus, by the very act of monitoring our words, the feds will have the effect of curtailing them.</p>
<p>The virtual or physical presence of the monitors would give people pause, cause them to reconsider offering opinions, induce them to refrain from expressing their true thoughts and even drive their speech underground. This is called "chilling," and it has been condemned by numerous Supreme Court decisions.</p>
<p>The principal purpose of the First Amendment is to keep the government out of the marketplace of ideas, and any governmental behavior that influences the exercise of the freedom of speech -- no matter how gently, indirectly, innocently or secretly -- violates that principle and provides the basis to sue the government to have its Stasi-like monitoring of speech enjoined. Another prime purpose of the First Amendment is to encourage open, wide, unfettered and robust debate about the policies and the personnel of the government. Who can engage in that with Big Brother watching and keeping score?</p>
<p>All presidents push the envelope when it comes to exercising their constitutional powers. But we never before have seen in modern times a president like the present one. From his halcyon days as a senator fighting for civil liberties, he has descended into a totalitarian darkness. How can he ask soldiers to defend a Constitution with their lives that he disregards with his deeds?</p>
<p>The government is worried about speech. Big deal. Speech is none of the government's business. History teaches that the remedy for tasteless speech is not government repression -- it is more speech. In a free society, when the marketplace of ideas is open and unfettered, the truth is obvious. But in a repressive society, the truth becomes a casualty. Which society did the Framers give us?</p>Judge Andrew P. Napolltano2014-10-23T07:00:00ZThe Government and FreedomJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/The-Government-and-Freedom/-254585526865224898.html2014-10-16T07:00:00Z2014-10-16T07:00:00Z<span>Earlier this week, FBI Director James Comey gave an interview to "60 Minutes" during which he revealed a flawed understanding of personal freedom. He rightly distinguished what FBI agents do in their investigations of federal crimes from what the NSA does in its intelligence gathering, when the two federal agencies are looking for non-public data.</span><br /><span><br />The FBI requires, Comey correctly asserted, articulable suspicion to commence an investigation and probable cause to obtain a search warrant. It does this because its agents have sworn an oath to uphold the Constitution, and their failure to comply with that oath may very well render the evidence obtained by unconstitutional means useless in court.</span><br /><span><br />The NSA, as we know, makes no pretense about presenting probable cause to a judge. Rather, it asks a judge on a secret court (so secret that the judges themselves are kept from the court's files) for general warrants. A warrant based on probable cause must specifically describe the place to be searched and the person or thing to be seized. General warrants, which the Constitution prohibits, permit the bearer to search wherever he wishes and seize whatever he finds.</span><br /><span><br />British government agents and soldiers used general warrants issued by a secret court in London to invade the privacy of the colonists. The British also used another tool now prohibited by the Constitution -- called writs of assistance -- which permitted certain agents and soldiers <em>to write their own search warrants</em> and serve them upon the colonists. This was done, it was argued, because London was too far from America and the British claimed an urgent need to search colonial homes to determine whether the owners had paid the king's taxes. The British use of general warrants and agent-written warrants became arguably the last straws that tipped colonial minds toward revolution.</span><br /><span><br />Comey knows that if his agents get caught violating the Constitution, their searches will be fruitless. Yet, he conveniently failed to reveal in his interview that under the Patriot Act, his agents can and do write their own search warrants -- just as British agents and soldiers did. The Patriot Act calls these warrants by the euphemism "national security letters."</span><br /><span><br />A national security letter is a search warrant in which one federal agent authorizes another federal agent to search for and retrieve data held by third parties. The list of third parties that can be subjected to an agent-written search warrant includes virtually all entities required by law to keep records, such as telephone providers, banks, lawyers, physicians, hospitals, supermarkets, utility companies, credit card companies and computer service providers; the list is nearly endless. Five federal judges have held this section of the Patriot Act to be a violation of the Fourth Amendment (which provides that only judges may issue search warrants) and thus unconstitutional.</span><br /><span><br />The Patriot Act also prohibits the recipient of an agent-written search warrant from telling anyone about it -- that includes a lawyer in confidence, a priest in confession, a spouse in the home, even a judge in open court. It is this section of the Patriot Act that is being challenged by Twitter and Google in the Ninth Circuit Court of Appeals in California.</span><br /><span><br />Twitter and Google have apparently received many of these unconstitutional agent-written warrants, and they want their customers to know what the government is doing. Two federal judges already have found this section of the Patriot Act to be violative of the First Amendment ("Congress shall make no law ... abridging the freedom of speech.") and thus unconstitutional.</span><br /><span><br />The Patriot Act is the most unconstitutional legislation since the Alien and Sedition Acts of 1798, which proscribed speech critical of the government; yet the FBI loves it. Its premise is that in dangerous times, if we surrender our freedoms to the government, the government will keep us safe until the danger passes. This is a flawed argument.</span><span> </span><br /><span><br />The Declaration of Independence recognizes the continuous possession of personal freedoms ("endowed by their Creator with certain inalienable rights"), and thus they cannot be stolen by a majority vote in Congress, but only surrendered by a personal, intentional, knowing choice. And history teaches that government does not return freedoms once stolen or surrendered. Without freedom, who will protect us from the government?</span><br /><span><br />The government can't deliver the mail, pave potholes, balance the budget, fairly collect taxes, protect us from Ebola, even tell the truth. Who would trust it with personal freedoms?</span><span> </span><br /><span><br />Since 2001, Comey's agents have written more than half a million of their own search warrants, and their targets don't even know what was done to them. He will argue that if the evidence from these agent-written warrants is not used in court, there is no harm to the unknowing victim, and hence no foul. Yet the Constitution was written to keep the government from interfering with our natural rights even when it does so in secret, because no government violation of inalienable rights is harmless.</span>Judge Andrew P. Napolltano2014-10-16T07:00:00ZParallel ReconstructionJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Parallel-Reconstruction/580874412610681832.html2014-10-09T23:02:00Z2014-10-09T23:02:00Z<p><span>While the political commentators in the nation's capital are wrapped up in the debate over what to do about ISIS, and as one third of the Senate and nearly all members of the House campaign for re-election, the president's spies continue to capture massive amounts of personal information about hundreds of millions of us and lie about it.</span><br /><span><br />The president continues to dispatch his National Security Agency spies as if he were a law unto himself, and Congress -- which is also being spied upon -- has done nothing to protect the right to privacy that the Fourth Amendment was written to ensure. Congress has taken an oath to uphold the Constitution, yet it has failed miserably to do so. But the spying is now so entrenched in government that a sinister and largely unnoticed problem lurks beneath the surface.</span><br /><span><br />NSA documents released by Edward Snowden show that the feds seriously deceived Congress and the courts in an effort to spy upon all of us and to use the gathered materials in criminal prosecutions, even though they told federal judges they would not. Among the more nefarious procedures the feds have engaged in is something called "parallel reconstruction." This procedure seeks to hide the true and original source of information about a criminal defendant when it was obtained unlawfully.</span><br /><span><br />For example, if the NSA, while unconstitutionally listening to the conversations of Americans hoping to hear about plots to harm other Americans (it has revealed no such plots from among the trillions of private conversations it has monitored since 2005), comes across evidence of a bank robbery, the NSA will pass that evidence on to the Department of Justice. The NSA routinely does this notwithstanding representations to the FISA court that authorizes its spying that it is not in the business of gathering evidence in criminal cases.</span><br /><span><br />It makes those claims because the George W. Bush and Barack Obama DOJs have argued to the public and to the FISA court that the Fourth Amendment, which prohibits all searches and seizures without a warrant, somehow applies only to criminal investigations and not to domestic spying. No Supreme Court decision has ever stood for that proposition, and the plain language of the Fourth Amendment makes no distinction between intelligence gathering and evidence gathering.</span><br /><span><br />Rather, the language of the amendment is so broad and sweeping ("The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated" except by a search warrant issued by a judge upon probable cause.) that for 230 years it has been held to restrain and regulate all government efforts to gather private information -- no matter their purposes.</span><br /><span><br />Nevertheless, the NSA's agents and lawyers felt it necessary to concoct this groundless, disingenuous and fictional legal distinction in order to persuade the FISA court that it is legally acceptable to permit untethered spying so long as the fruits of that spying are not used in criminal prosecutions. Curiously and naively, judges of the FISA court bought that argument.</span><br /><span><br />So, what happens when the spying uncovers ordinary criminal behavior unrelated to national security? In order to keep its hands clean, so to speak, the NSA sends that evidence to the DOJ, whose lawyers and agents in cahoots with the NSA then concoct an explanation as to how the DOJ came upon the evidence. Of course, that explanation curiously and carefully omits the mention of domestic spying. DOJ lawyers know that if the beginning of the process of obtaining evidence is found to be unconstitutional, then the evidence itself can be useless in court.</span><br /><span><br />This is what lawyers and judges call the "fruit of the poisonous tree." Were this not so -- that is, if the government could spread any net as broad and as wide as it wished and use whatever the net caught as evidence in criminal prosecutions -- then the Fourth Amendment's search warrant requirement would be meaningless because it would not protect the right to privacy as its authors intended.</span><br /><span><br />Thus, in order to maintain the facade of spying only for domestic intelligence purposes, and to appear faithful to public and secret promises (the FISA court only sits in secret) that any evidence of criminal behavior inadvertently discovered by NSA spies will not be used in criminal prosecutions, and so as to keep the mechanisms of domestic spying hidden from non-FISA federal judges who are more likely to apply normative interpretations of the Fourth Amendment than their FISA court colleagues, the NSA and the DOJ began the process of parallel reconstruction.</span><br /><span><br />Parallel reconstruction consists largely of the creation of a false beginning -- an untrue one -- of the acquisition of evidence. This, of course, is criminal. Lawyers and agents for the NSA and DOJ may no more lawfully lie to federal judges and criminal defense attorneys about the true origins of evidence than may a bank robber who testifies in his own defense claiming to have been at Mass at the time of the robbery.</span><br /><span><br />While parallel reconstruction is deceptive, unlawful and unconstitutional, I suspect it is but the tip of a dangerous iceberg spawned by the unbridled NSA spying that Bush and Obama have given us. When you mix a lack of fidelity to the plain meaning of the Constitution with a legal fiction, and then add in a drumbeat of fear, enforced secrecy and billions of unaccounted-for taxpayer dollars, you get a dangerous stew of unintended tyrannical consequences.</span><br /><span><br />Is this the government the Framers gave us? Is this the government anyone voted for? Is this a faithful and moral commitment to the Constitution, the rule of law and personal liberty? The answers are obvious.</span></p>Judge Andrew P. Napolltano2014-10-09T23:02:00ZClapper Under the BusJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Clapper-Under-the-Bus/-230416930216492555.html2014-10-02T17:05:00Z2014-10-02T17:05:00Z<p><span>When President Obama attributed the rise in Iraq of the Islamic State, or ISIS, to the failures of the U.S. intelligence community earlier this week, naming and blaming directly National Intelligence Director Gen. James Clapper, he was attempting to deflect criticism of his own incompetence. He was discussing the fact that ISIS, right under his own and the general's noses, gained control of nearly half of the landmass of Iraq. This is the same Iraq that the United States supposedly liberated from the clutches of a dictator, strengthened as a regional military power and fortified as the Middle East's newest democracy as a result of our invasion in 2003 and our subsequent 10-year occupation.</span><br /><span><br />Many who supported the war then realize now that we were duped into it by a deceptive and shortsighted Bush administration that was looking to deflect blame for its intelligence failures of 9/11, for which, unlike the Japanese invasion of Pearl Harbor, not a single human being in the federal government has been charged with anything. But that is a topic for another day.</span><br /><span><br />ISIS captured Fallujah and Ramadi, two major cities in Iraq, eight months ago. Surely the president knew about that when it happened. He receives an intelligence briefing every day; more often than not, he prefers a written briefing rather than one where he and his briefers can zero in on problem areas in a face-to-face conversation. Yet since the February takeover of the Iraqi equivalent of Chicago and Los Angeles, the president has told the American people that ISIS is junior varsity and he had no plans to address it, and he seemed not to care about it until ISIS went over his head, so to speak, and beheaded two innocent young Americans and posted grisly videos of their horrific murders on the Internet.</span><br /><span><br /></span><span>If the president now believes we should fight ISIS because it killed two Americans and boasted about it, he woefully misunderstands his job, which is to preserve, protect and defend the Constitution, not every American everywhere on the planet. If he is convinced ISIS poses an imminent threat to the freedom of Americans and the security of our country, it is hard to believe that these two murders alone brought him to that conclusion. Does he genuinely believe that 25,000 ill-equipped fanatics 10,000 miles from here, with no navy or air force, could possibly be a clear and present danger to the U.S.? And if he does, when and how did he come to that belief if his intelligence team failed him?</span><br /><span><br />These questions are of profound relevance to the American people, because with each passing day, it appears that the president is more indifferent to the facts around him and less competent at pulling the levers of government. Yet he is sending American troops into harm's way on an ill-defined long-term mission without congressional authorization as the Constitution requires.</span><br /><span><br />Here is where his condemnation of Clapper comes in. Clapper is the senior intelligence officer in the federal government. All of our civilian spies, domestic and foreign, indirectly report to him. His job is to steal and keep secrets within the boundaries of the Constitution, which he, like the president, has sworn to defend.</span><br /><span><br />Yet Clapper and his spies are more intent on spying on the American people than on those foreigners who have publicly boasted -- however unrealistic their boasts may be -- that they will cause us harm. This is, after all, the same Clapper who committed crimes in order to insulate his domestic spies from lawful congressional inquiry when he denied under oath that the U.S. government was acquiring massive amounts of private data about hundreds of millions of Americans.</span><br /><span><br />He made that denial to a Senate committee when he knew what his spies at the NSA were doing. When his lies became apparent, the Senate committee before which he perjured himself -- and whose members knew that he was lying at the moment of his lies -- gave him an opportunity to correct himself, and he declined to do so. For lying under oath and refusing to correct his statements, Obama should have fired him.</span><br /><span><br />But the president overlooked his spymaster's public lies and went on television's most widely watched program this week and publicly accused Clapper of privately failing to inform the president of something the president must have known about: the ISIS advance on Iraqi population centers.</span><br /><span><br />This war we are now entering is unlawful because we have invaded Syria without a congressional declaration of war and without a legal or moral basis for doing so. It is morally wrong because ISIS is an imminent threat to the U.S. only in the minds of the members of Congress who love war, not in reality. And it is blind to recent history because it will become a more superior recruitment tool for ISIS than our original invasion of Iraq was for al-Qaida. The only reason al-Qaida and ISIS exist in Iraq is as resistance to the American invasion and occupation, an invasion that has materially detracted from the liberty and safety of the U.S. and the stability of the region.</span><br /><span><br />Yet, if Clapper and his spies so miserably failed to educate the president about a threat he now claims is real, why do they still have their jobs? They have their jobs because if the president fires them, they might freely speak the truth, and the truth is the president's enemy. They have their jobs because the president is so bad at performing his.</span></p>Judge Andrew P. Napolltano2014-10-02T17:05:00ZMistakes of the Past Are BackJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Mistakes-of-the-Past-Are-Back/-711041267095155869.html2014-09-25T20:16:00Z2014-09-25T20:16:00Z<p>What if the American invasion of Iraq had nothing to do with weapons of mass destruction? What if whatever weapons of mass destruction Saddam Hussein once had were sold to him in the 1980s by American arms dealers with the express permission of the U.S. government? What if he no longer had them when the U.S. invaded? What if the principal reason for invading Iraq was to depose Hussein because he tried to kill President George H.W. Bush, whose son ordered the invasion?</p>
<p>What if another reason for the invasion of Iraq was to enable western-allied governments to control or receive oil from Iraq? What if the Bush administration lied to the American people, Congress, the U.N. and governments of other nations in order to persuade them to support the invasion? What if the Bush administration knew all along that Hussein posed no threat to the stability of the Middle East or the freedom or security of the U.S.? What if Hussein was, in fact, a stabilizing force in the Middle East?</p>
<p>What if the American invasion violated the moral precepts of the Just War, precepts accepted in Judeo-Christian teaching and culture for more than 500 years, and that have underpinned international law for more than 100 years?</p>
<p>What if the invasion killed 4,500 Americans and 650,000 Iraqis, and injured 40,000 Americans, displaced 2 million Iraqis and destroyed more than $100 billion in Iraqi property? What if that invasion, which cost more than one trillion borrowed U.S. dollars, degraded the Iraqi military?</p>
<p>What if the American invasion sent many members of the Iraqi military underground or into the arms of anti-government resistance fighters? What if the American invasion also produced a fierce resistance and determined will to expel the American invaders?</p>
<p>What if the Middle East has been the scene of a 1,000-year-old religious dispute between two branches of Islam: the Sunni and the Shia? What if under Hussein the Sunni persecuted the Shia and also persecuted a third group in that region, the Kurds? What if Hussein used the weapons of mass destruction that American arms dealers sold him to gas thousands of Kurds? What if the Shia now persecute the Sunni?</p>
<p>What if Iraq is not a country of people with common cultures and interests and generally accepted borders, but rather an amalgam of warring groups cobbled together by British and American diplomats? What if only a strongman like Hussein -- however evil and ill suited for government by Western standards -- can keep peace and stability in an artificial country like Iraq?</p>
<p>What if al-Qaida was not present in Iraq before America invaded? What if the American invasion drew al-Qaida fighters to Iraq from Africa and other parts of the Middle East? What if the American invasion produced a violent stew of resistance to and resentment of American-induced violence in Iraq?</p>
<p>What if that stew -- which has been known by different names, but is now called ISIS -- included not only fighters from all over the Middle East and Africa, but also from the current Iraqi military and from Hussein's military, which U.S. forces thought they had defeated or dispersed? What if many of those former Iraqi military forces brought their American-made and American-paid-for military equipment and their American military training with them into ISIS?</p>
<p>What if, in the 11 years since the U.S. invaded Iraq and in the 13 years since the U.S. invaded Afghanistan, American troops have been training new Iraqi and Afghan armies? What if during that time of training many of those U.S.-trained troops joined the ISIS resistance? What if the U.S.-trained troops that stayed in the Iraqi military are really a rag-tag band of second-rate soldiers who are unable to defend the Iraqi government against ISIS? What if President Obama's military advisers have told him this?</p>
<p>What if some of the training has taken place in the United States? What if some of those trainees left their instructors, fled a U.S. Army base and were at large in the U.S. with their weapons?</p>
<p>What if under the watch of the U.S.-trained Iraqi soldiers one-third to one-half of the landmass of Iraq has fallen to ISIS? What if ISIS -- though barbaric and ruthless and decidedly undemocratic -- has established governments in the lands it conquered? What if those governments -- though terrifying to those who would resist them, as Hussein was -- have financed schools and hospitals and operated as the only government in the land, as Hussein did? What if those governments are selling oil to finance themselves, as Hussein did?</p>
<p>What if the forces in the U.S. who believe the military is best when it is fighting are again beating the drums for war in Iraq? What if Obama's present plans are to arm and train moderate Syrian rebels and induce them to fight ISIS on the ground while the U.S. provides air cover? What if the U.S. really cannot tell the moderate Syrian fighters from the fanatical Syrian fighters? What if they are one and the same fighters, whose moderation or fanaticism changes with the politics and military needs of the moment?</p>
<p>What if American empire building and military adventurism and going about the world looking for monsters to slay have caused this mess? What if the American government refuses to recognize that? What if the United States is about to embark on the same thing all over again? What if all this has not made a single American freer or safer? What if all this has made the American government paranoid and the American people less free and poorer and more vulnerable?</p>
<p>What if the government here cannot recognize its failures? What if a people who cannot understand the mistakes of the past are doomed to repeat them? What do we do about it?</p>Judge Andrew P. Napolltano2014-09-25T20:16:00ZMore Unlawful Presidential KillingJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/More-Unlawful-Presidential-Killing/442585486646673518.html2014-09-18T15:07:00Z2014-09-18T15:07:00Z<p>As the debate rages over whether the president needs congressional authorization for war prior to his deployment of the military to degrade or destroy ISIS, the terrorist organization that none of us had heard about until a few months ago, the nation has lost sight of the more fundamental issue of President Obama's infidelity to the rule of law.<br /> </p>
<p>On the lawfulness of his proposed war, the president has painted himself into a corner. Last year, he quite properly recognized that the Authorization for Use of Military Force (AUMF), a statute enacted by Congress in 2002 to permit President George W. Bush to use the military to track down, capture, degrade or kill all persons or organizations that planned the attacks of 9/11, cannot apply to organizations that did not exist at the time of 9/11, of which ISIS is one.<br /> </p>
<p>That leaves the president with two remaining alternatives. One is the War Powers Resolution (WPR), a statute enacted by Congress in 1973 to limit presidentially ordered military invasions absent congressional assent to 180 days or fewer. But the WPR is unconstitutional, as it consists of Congress giving away to the president express authority to declare war, which the Constitution delegates to Congress. The Supreme Court has prohibited such giveaways of core powers and responsibilities from one branch of the federal government to another.<br /> </p>
<p>Even if Obama decides to rely on the WPR, and expects that no federal judge will interfere with that decision, his military advisers have told him he cannot achieve his objective in 180 days. They also have told him he cannot achieve his objective by the use of air power alone.<br /> </p>
<p>The remaining mechanism for starting a war is to follow the Constitution by seeking a congressional declaration of war. But Obama has not yet asked for such a declaration. Why not? No doubt, he has two fears. One is that Congress will impose restrictions on the location and duration of hostilities, unlike the AUMF, which is open-ended. The other is that he will disaffect his loyal political base by doing what he promised he would never do: bring the country into another offensive war in the Middle East.<br /> </p>
<p>In 2008 and in 2012, Obama ran as a candidate and an incumbent determined to end American military involvement in the Middle East, not increase it. Hence his promise, by now made many times, that he will not introduce ground troops into this war. Apparently, just as when he bombed Libya into chaotic instability in 2010, he does not consider bombs an act of offensive warfare.<br /> </p>
<p>But he does consider the use of boots to be an act of war. When the president promises no ground troops, note the phrase he uses: "No boots on the ground." This is a term of art that apparently has different meanings to different folks.<br /> </p>
<p>There are already more than 1,000 pairs of American military boots on the ground in this effort to destroy ISIS. Yet, because they are not yet directly engaged in the use of violence in pursuit of ISIS fighters (they are training others to do so or finding targets to destroy by air), or because they are Special Forces and thus out of uniform (but no doubt armed and violent and wearing boots), the president feels he has a clear conscience when he says there are no boots on the groun.</p>
<p> </p>
<p>When he says that, he means, "There is no one in an American military uniform shooting from the ground at an enemy target" -- but there are military personnel in uniform on the ground, and there are military personnel out of uniform shooting ISIS fighters. Is this hair-splitting language consistent with the president's moral obligation to be truthful to us?</p>
<p> </p>
<p>In another deceptive move, Obama announced on Monday that the operation against ISIS, whether authorized by Congress or not, will be directed by retired Marine Corps General John Allen. This is a novel use of government assets, as Allen is no longer a part of the Pentagon and thus not subject to the military chain of command. Apparently, the president does not trust his military advisers, whose advice he has repeatedly rejected, to run his war. Is the White House planning to run this war directly as LBJ did in Vietnam? Is the State Department? How can a civilian who is not the president command military troops?</p>
<p> </p>
<p>On Monday of last week, the White House announced that in its pursuit of ISIS, the U.S. will go wherever it finds ISIS targets, and if ISIS hides in Syria and the government of Syria does not permit U.S. jets to use its airspace, the U.S. will attack Syria. That sounds like Russian President Vladimir Putin in the Ukraine.</p>
<p> </p>
<p>Attacking Syria because its government denied the U.S. airspace would be an unprovoked and unlawful act of war that would probably provoke Putin. Congress rejected declaring war on Syria just a year ago. If it does so now, there would be no lawful or moral basis for such a declaration, as Syria is a sovereign country, lawfully entitled to control its airspace, that poses no present threat to American freedom or security. The U.S. can no more legally commandeer Syrian airspace than Syria can commandeer ours.</p>
<p> </p>
<p>Something is amiss here. Last year the president wanted to help ISIS indirectly by degrading the Syrian military. Now he wants to help Syria indirectly by degrading ISIS, but only if Syria stays out of our way. And he is prepared to violate the Constitution, break the law and lie to the American people to achieve his purposes.</p>
<p> </p>
<p>Why all the unlawfulness, when he could and should leave these disputants to their own devices and keep the American military at home for genuine defensive purposes?</p>Judge Andrew P. Napolltano2014-09-18T15:07:00ZWaging WarJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Waging-War/516614151439896216.html2014-09-12T01:55:00Z2014-09-12T01:55:00Z<p>James Madison is commonly referred to as the Father of the Constitution in large measure because, in the secrecy of the Constitutional Convention in Philadelphia in 1787, he kept the most complete set of notes. He also had a very keen mind and a modest demeanor and an uncanny ability to solidify consensus around basic principles that are woven into the Constitution.</p>
<p>After he wrote the Constitution and before he became Thomas Jefferson's secretary of state and eventually a two-term president, he was a congressman from Virginia. When he spoke on the floor of the House, the parts of the Constitution he was most adamant about restrained the president. Chief among those restraints, in Madison's view, was the delegation to Congress, and not to the president, of the power to wage war.</p>
<p>Madison knew that kings became tyrants through war. He fervently believed that by keeping the war-waging power in the hands of the president and the war-making power in the hands of Congress, the Constitution would serve as a bulwark against tyranny. He explained:</p>
<p><em>"Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. ... No nation could preserve its freedom in the midst of continual warfare."</em></p>
<p>Madison is instructive for us today as President Obama decides whether to ask the nation to go to war or to order hostilities on his own.</p>
<p>Under the War Powers Resolution (WPR), the president can deploy U.S. forces anywhere outside the U.S. for 180 days upon his written notifications of congressional leaders. He does not need a declaration of war to deploy forces for 180 days, yet he cannot deploy forces beyond that without express authorization from Congress.</p>
<p>Obama used the WPR as the legal basis for his air invasion of Libya in 2010. That resulted in the destruction of the government there, which the U.S. had supported with $1 billion annually since 2005 (we literally destroyed armaments that we had paid for), the death of Col. Gadhafi, whom President George W. Bush and British Prime Minister Tony Blair called a friend in the war on terror, the instability of the nation, the death of our ambassador, and the seizure by mobs of U.S. government-owned real estate. The president declined to use the WPR authority last year when he sought -- and did not receive -- express congressional authority to use military force to degrade the offensive weaponry of the Syrian military.</p>
<p>The WPR is a two-edged sword. Though the courts have never reviewed it, it is certainly unconstitutional, as the courts have consistently ruled that one branch of government cannot give away its principal constitutional powers to another. Congress surely cannot give its war-making power to the president any more than it can give it to the courts. So, the political question with respect to war remains: Who will take the heat for fighting a war against ISIS -- the president via the WPR or Congress via the Constitution?</p>
<p>Yet, beyond the political question is the more profound question of who will enforce the Constitution. In addition to Madison's fears about foreign wars leading to domestic tyranny, there are profoundly practical reasons why war is a decision for Congress alone.</p>
<p>Here is where it gets dicey and inside the Beltway. Republicans want war because they see ISIS as a dreaded enemy and can use its televised barbarity to rally voters to their candidates. Democrats want war because they can use it to show the voters that they, too, can be muscular against terrorists. Yet, Republican leadership in the House is reluctant to permit the House to debate and vote on a resolution authorizing hostilities, because they can't agree on how to instruct the president to end the war.</p>
<p>But war often has surprise endings and unexpected human, geopolitical and financial consequences. A debate in Congress will air them. It will assure that the government considers all rational alternatives to war and that the nation is not pushed into a costly and bloody venture with its eyes shut. A congressional debate will compel a written national objective tied to American freedom. A prudent debate will also assure that there will be an end to hostilities determined by congressional consensus and not presidential fiat.</p>
<p>What should Congress do? It should declare once and for all that we will stay out of this ancient Muslim civil war of Shia versus Sunni. We have been on both sides of it. Each side is barbarous. In the 1980s, we helped the Sunni. Now we are helping the Shia. Last year, Obama offered to help ISIS by degrading its adversaries; now, he wants to degrade ISIS. We have slaughtered innocents and squandered fortunes in an effort to achieve temporary military victories that neither enhance our freedom nor fortify our safety. We will only have peace when we come home -- when we cease military intervention in an area of the world not suited for democracy and in which we are essentially despised.</p>
<p>I suspect most Americans have had enough of war, and they understand that if the political class ignores Madison's warnings, it will do so at its peril.</p>Judge Andrew P. Napolltano2014-09-12T01:55:00ZAn Unhappy Summer for LibertyJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/An-Unhappy-Summer-for-Liberty/-145712182139145185.html2014-09-04T07:01:00Z2014-09-04T07:01:00Z<p>At the root of the chaos in the Middle East and here at home are governments that respect no limits on their exercise of power. Public officials -- who are supposed to be our public servants -- routinely behave as if they are our masters. They reject the confines of the Constitution, they don't believe that our rights are inalienable, and they fail to see the dangerous path down which they are leading us.</p>
<p>It is a path to an authoritarian America, predicted by the British writer George Orwell in his dark and terrifying novel "1984," in which governmental power was fortified by fear at home and war abroad.</p>
<p>President Obama has dispatched 60,000 NSA spies to monitor the cellphone and landline calls, as well as the emails, texts, bank statements and utility bills, of nearly all Americans, in utter disregard for the constitutional standard required for doing so: probable cause of criminal acts by the persons spied upon. Yet his spies somehow missed the Boston marathon bombing, Russia's invasion of Ukraine and theft of Crimea, the downing of the Malaysian civilian airliner and the growth of ISIS in the Middle East.</p>
<p>ISIS was fomented by the tragic, immoral and illegal American invasion of Iraq. That invasion was carried out under the false pretenses that the United States needed to find the weapons of mass destruction we had sold to Saddam Hussein. The Iraq war cost the lives of 650,000 Iraqis and 4,500 Americans. It displaced more than 2,000,000 Iraqis and, because it was paid for by borrowed funds, added $2 trillion to the U.S. government's debt.</p>
<p>The consequence of American Middle Eastern imperialism has become the virulently anti-American and viciously efficient fighting force called ISIS. President Bush and his generals and Obama and his spies knew or ought to have known about it. This disciplined group of fanatics is the latest American bogeyman at whom the warmongers are aiming their cries for more American military action and thus more American blood.</p>
<p>Bush was reckless to have fought an unjust war, and Obama is reckless to have misguided our intelligence resources toward Americans and then feign surprise at the growth of this foreign disease right under his nose._ But this is a disease that he and the military-industrial complex will use to terrify us into another useless war. By their standards, any group or government -- except for the U.S. and our allies -- that uses violence to get its way should be eliminated by more violence. That will literally bring war without end.</p>
<p>Congress is a potted plant. It has permitted Obama -- in defiance of the Constitution -- to destroy Libya, bomb innocents in Pakistan and kill Americans in Yemen. There is a reason only Congress can declare war: to ensure debate about war, to discover whether there is a legal basis for it, to explore all options to it, and to prepare for its human, geopolitical and financial consequences.</p>
<p>The next domestic political battle will be a fight between the Senate and the CIA, as the Senate Intelligence Committee releases its report on CIA torture. Sen. Dianne Feinstein, D-Calif., the committee chair, has accused the CIA of spying on her and her staff, and just as Congress began its summer break, CIA Director John Brennan admitted the spying. That spying is a felony, and Brennan's job and his personal freedom are at stake, even as he and Feinstein argue about how much of the report should be released.</p>
<p>Why is this report important? According to those who have seen it, it will demonstrate not only that the U.S. government tortured victims all over the world, but that its techniques were not those revealed and approved by congressional regulators, that the CIA repeatedly lied to its own congressional supporters and, most importantly, that the torture did not produce any material actionable intelligence, including the whereabouts of Osama bin Laden.</p>
<p>The report is also important because in a democracy, all persons have a fundamental right to know what the government is doing. Transparency is a disinfectant for political corruption, and a people cannot be free when the government gets away with law breaking and lying about it.</p>
<p>The other coming domestic issue is the militarization of the police. We learned this summer that in New York City, you can be choked to death by cops while selling untaxed cigarettes, and in Ferguson, Mo., you can be shot in the head by a cop while unarmed -- and none of the killers has yet been arrested, charged or prosecuted. This is the result of recent Supreme Court opinions that give the police qualified immunity. That doctrine makes it nearly impossible to sue or prosecute cops who kill innocents so long as they can claim that a reasonable cop would have done as they did. That is no protection from thugs in uniform; it is a license to kill.</p>
<p>And speaking of killing, why do the police in America now have grenade throwers, a weapon that kills indiscriminately and is banned from use against the civilian population by international law? They have them because of a lack of transparency. The Department of Defense in secret gave or sold these weapons of mass destruction to American police departments in secret and thus without the consent of the public, whom the police are supposed to protect.</p>
<p>Locally and nationally, we live under governments that prefer to rule rather than to serve, that choose not to tell us the truth but to keep it from us, and that have enacted laws that purport to make their behavior legal.</p>
<p>In 1949, when he wrote "1984," Orwell predicted all this, including the secret torture, the perpetual warfare, the continuous spying and the fear of the government. His predictions were right on the mark -- he was only mistaken by 30 years.</p>Judge Andrew P. Napolltano2014-09-04T07:01:00ZSpying, Lying and TortureJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Spying-Lying-and-Torture/871464085535795675.html2014-08-07T07:00:00Z2014-08-07T07:00:00Z<p>In some respects, the recent admission by CIA Director John Brennan that his agents and his lawyers have been spying on the senators whose job it is to monitor the agency should come as no surprise. The agency's job is to steal and keep secrets, and implicit in those tasks, Brennan would no doubt argue, is lying.</p>
<p>Yet in another respect, this may very well be a smoking gun in the now substantial case against President Barack Obama that alleges that much of his official behavior has manifested lawlessness and incompetence. It is hard to believe that the president did not know about this but not hard to believe he would look the other way.</p>
<p>About four months ago, California Democrat Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, went to the Senate floor and accused the CIA of committing torture during the presidency of George W. Bush and of spying on the committee that she chairs as it was examining records of that torture. Brennan responded by denying both charges and leveling his own -- that investigators for the Senate Intelligence Committee had exceeded their lawful access to CIA records and that that constituted spying on the CIA.</p>
<p>Brennan even got his predecessor, George Tenet, under whose watch Feinstein claimed the torture had occurred and the attacks of 9/11 took place, to deny vehemently that his agents had committed torture. With this mutual finger-pointing, both the CIA and the Senate Intelligence Committee reported each other to the Department of Justice, which promptly punted.</p>
<p>How did all this come about? Under federal law, the CIA gets to do what the president permits and authorizes only when it reports its deeds and misdeeds truthfully to two congressional committees, one of which is the Senate Intelligence Committee. (The other is the House Permanent Select Committee on Intelligence.) None of this is constitutional, of course, seeing as the CIA fights secret wars; the Constitution mandates that only Congress can declare war, and Congress cannot delegate its constitutional authority to committees. This system of secret government is so secret that 90 percent of our elected congressional representatives are kept ignorant of it.</p>
<p>But last week, on a sleepy Friday afternoon in the middle of the summer, Obama admitted that the CIA had tortured people, and shortly thereafter, Brennan admitted that the CIA had spied on the Senate. Then the president said he still has confidence in Brennan.</p>
<p>This is approaching a serious constitutional confrontation between the president and Congress. Can the president's agents lawfully spy on Congress? Of course not. Can the CIA lie to Congress with impunity? Only if Congress and the Department of Justice let it do so.</p>
<p>Yet this administration thrives on lies. Brennan's boss, James Clapper, who is the director of national intelligence, lied to the same Senate Intelligence Committee when he denied that the National Security Agency is collecting massive amounts of personal data on hundreds of millions of Americans. And now we have the CIA director lying in secret to his congressional monitors, who were formerly his congressional protectors, and a Justice Department unwilling to do its legal duty by enforcing the law.</p>
<p>Do you remember former Yankee great Roger Clemens? He was indicted and tried twice for lying to a congressional committee about the contents of his urine. He was acquitted, yet this should tell you about the government's priorities. It is more interested in chastening a baseball player about a private matter than it is in being truthful to the American people about torture. It apparently thinks that government employment is a defense to lying.</p>
<p>So where does all this lead us? The president's agents have lied to Congress and have spied upon it. If Brennan did not know about this, he should be fired for incompetence and for failing to control his agents. If he did know about this, he should be indicted for lying to Congress, because he denied it at a time when he had a lawful obligation to be truthful, and he should be fired for his failure to communicate a violation of the Constitution to the president. If he did tell the president that his agents were about to spy on Congress and the president failed to stop it, the president has committed a serious violation of his oath to uphold the laws and violated the separation of powers by invading the privacy of a coequal branch of the government -- and that is an impeachable offense.</p>
<p>So, what shall we do about this? House Speaker John Boehner will say, "Let's sue the president." That's a joke. How about subpoenaing the president to testify under oath and asking him what he knew and when he knew it? Now you're getting warmer. How about impeaching him and calling him as the first witness in his own impeachment trial? His Department of Justice has argued that the Fifth Amendment privilege against self-incrimination applies only in criminal cases. Now you're getting hot.</p>
<p>But wait. All this requires moral courage, righteous indignation and fidelity to the rule of law; and the Congress has none of those traits. In the post-9/11 world, Congress has become a potted plant, ready to give any president whatever he wants, lest it appear less than muscular in the face of whatever danger the president says is lurking in the dark. And presidents know that if the kitchen gets hot, all they need to do is foment a foreign crisis in the dark, and the country will unite behind them.</p>
<p>I am not so sure that unity behind the president will happen this time.</p>Judge Andrew P. Napolltano2014-08-07T07:00:00ZIs the President Incompetent or Lawless?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Is-the-President-Incompetent-or-Lawless/-962617789667104595.html2014-07-31T19:39:00Z2014-07-31T19:39:00Z<p><span>It has been well established under the Constitution and throughout our history that the president's job as the chief federal law enforcement officer permits him to put his ideological stamp on the nature of the work done by the executive branch. The courts have characterized this stamp as "discretion."</span><br /><span><br />Thus when exercising their discretion, some presidents veer toward authority, others toward freedom. John Adams prosecuted a congressman whose criticism brought him into disrepute, an act protected by the First Amendment yet punishable under the Alien and Sedition Acts, and Thomas Jefferson declined to enforce the Acts because they punished speech, and pardoned all those convicted. Jimmy Carter asserted vast federal regulatory authority over the trucking and airline industries, and Ronald Reagan undid nearly all of it.</span><br /><span><br />The president has discretion to adapt law enforcement to the needs of the times and to his reading of the wishes of the American people. Yet that discretion has a serious and mandatory guiding light -- namely, that the president will do so faithfully.</span><br /><span><br />The word "faithfully" appears in the oath of office that is administered to every president. The reason for its use is to assure Americans that their wishes for government behavior, as manifested in written law, would be carried out even if the president personally disagrees with the laws he swore to enforce.</span><br /><span><br />This has not always worked as planned. President George W. Bush once famously signed into law a statute prohibiting federal agents without a search warrant from reading mail sent to persons other than themselves -- and as he was literally holding his pen, he stated he had no intention of enforcing it. That was a rejection of his presidential duties and a violation of his oath.</span><br /><span><br />But</span><span> </span><span id="OBJ_PREFIX_DWT92_com_zimbra_date" class="Object">today</span><span>, President Obama has taken the concept of discretion and so distorted it, and has taken the obligation of faithful enforcement and so rejected it, that his job as chief law enforcer has become one of incompetent madness or chief lawbreaker. Time after time, in areas as disparate as civil liberties, immigration, foreign affairs and health care, the president has demonstrated a propensity for rejecting his oath and doing damage to our fabric of liberty that cannot easily be undone by a successor.</span><br /><span><br />Item: He has permitted unconstitutional and unbridled spying on all Americans all the time, and he has dispatched his agents to lie and mislead the American people and their elected representatives in Congress about it. This has resulted in a federal culture in which the supposed servants of the people have become our permanent and intimate monitors and squealers on what they observe.</span><br /><span><br />Item: He has permitted illegal immigrants to remain here and continue to break the law, and he has instructed them on how to get away with it. His encouragement has resulted in the flood of tens of thousands of foreign unaccompanied children being pushed across our borders. This has resulted in culture shock to children now used as political pawns, the impairment of their lives and the imposition of grievous financial burdens upon local and state governments.</span><br /><span><br />Item: His agents fomented a revolution in Libya that resulted in the murder of that country's leader, the killing of the U.S. ambassador and the evacuation of the U.S. embassy. His agents fomented a revolution in Ukraine that resulted in a Russian invasion, an active insurgency, sham elections and the killing of hundreds of innocent passengers flying on a commercial airliner.</span><br /><span><br />Item: He has dispatched CIA agents to fight undeclared and secret wars in Yemen and in Pakistan, and he has dispatched unmanned drones to kill innocents there. He has boasted that some secret reading of public positive law permits him to kill whomever he wishes, even Americans and their children.</span><br /><span><br />Item: His State Department has treated Hamas -- a gang of ruthless murderers whose stated purpose is the destruction of Israel -- as if it were a legitimate state deserving of diplomatic niceties, and this has encouraged Hamas to persist in attacking our only serious ally in the Middle East.</span><br /><span><br />Item: His Department of Veterans Affairs has so neglected patients in government hospitals that many of them died, and it even destroyed records to hide its misdeeds. His Internal Revenue Service has enforced the law more heavily against his political opponents than against his friends, and it has destroyed government computer records in order to hide its misdeeds.</span><br /><span><br />Item: He has relieved his friends of the burdens of timely compliance with Obamacare, and he has burdened his enemies with tortured interpretations of that law -- even interpretations that were rejected by the very Congress that enacted the law and interpretations that were invalidated by the Supreme Court.</span><br /><span><br />He has done all these things with a cool indifference, and he has threatened to continue to do so until the pressure builds on his political opponents to see things his way.</span><br /><span><br />The Framers could not have intended a president so devoid of fidelity to the rule of law that it is nearly impossible to distinguish between incompetence and lawlessness -- and I am not sure which is worse. Archbishop Fulton Sheen often said he'd prefer to deal with a smart devil than a stupid one.</span><br /><span><br />But the Framers did give us a remedy, and the remedy is not a frivolous lawsuit that the federal courts will no doubt reject as a political stunt. The remedy is removal from office. This is not to be undertaken lightly, as was the case when this remedy was last used. But it is the remaining constitutional means to save the freedoms the Constitution was intended to guarantee.</span></p>Judge Andrew P. Napolltano2014-07-31T19:39:00ZWhat If Democracy Is a Fraud?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/What-If-Democracy-Is-a-Fraud/-652887008250322357.html2014-07-24T18:04:00Z2014-07-24T18:04:00Z<p><span>What if you were allowed to vote only because it didn't make a difference? What if no matter how you voted the elites always got their way? What if the concept of one person/one vote was just a fiction created by the government to induce your compliance?</span><br /><span><br />What if democracy as it has come to exist in America</span><span> </span><span id="OBJ_PREFIX_DWT417_com_zimbra_date" class="Object">today</span><span> </span><span>is dangerous to personal freedom? What if our so-called democracy erodes the people's understanding of natural rights and the reasons for government and instead turns political campaigns into beauty contests? What if American democracy allows the government to do anything it wants, as long as more people bother to show up at the voting booth to support the government than show up to say no?</span><br /><span><br />What if the purpose of contemporary democracy has been to convince people that they could prosper not through the voluntary creation of wealth but through theft from others? What if the only moral way to acquire wealth is through voluntary economic activity? What if the government persuaded the people that they could acquire wealth through political activity? What if economic activity includes all the productive and peaceful things we voluntarily do? What if political activity includes all the parasitical and destructive things the government does? What if the government has never created wealth? What if everything the government owns it has stolen?</span><br /><span><br />What if governments were originally established to protect people's freedoms but always turn into political and imperialist enterprises that seek to expand their power, increase their territory and heighten their control of the population? What if the idea that we need a government to take care of us is a fiction perpetrated to increase the size of government? What if our strength as individuals and durability as a culture are contingent not on the strength of the government but on the amount of freedom we have from the government?</span><br /><span><br />What if the fatal cocktail of big government and democracy ultimately produces dependency? What if so-called democratic government, once it grows to a certain size, begins to soften and weaken the people? What if big government destroys people's motivations and democracy convinces them that the only motivation they need is to vote and go along with the results?</span><br /><span><br />What if Congress isn't actually as democratic as it appears? What if congressional elections don't square with congressional legislation because the polls aren't what counts, but what counts are the secret meetings that come after the voting? What if the monster Joe Stalin was right when he said the most powerful person in the world is the guy who counts the votes? What if the vote counting that really counts takes place in secret? What if that's how we lost our republic?</span><br /><span><br />What if the problem with democracy is that the majority thinks it can right any wrong, write any law, tax any event, regulate any behavior and acquire any thing it wants? What if the greatest tyrant in history lives among us? What if that tyrant always gets its way, no matter what the laws are or what the Constitution says? What if that tyrant is the majority of voters? What if the majority in a democracy recognizes no limits on its power?</span><br /><span><br />What if the government misinforms voters so they will justify anything the government wants to do? What if the government bribes people with the money it prints? What if it gives entitlements to the poor and tax breaks to the middle class and bailouts to the rich just to keep everyone dependent on it? What if a vibrant republic requires not just the democratic process of voting, but also informed and engaged voters who understand first principles of human existence, including the divine origin and inalienable individual possession of natural rights?</span><br /><span><br />What if we could free ourselves from the yoke of big government through a return to first principles? What if the establishment doesn't want this? What if the government remains the same no matter who wins elections? What if we have only one political party -- the Big Government Party -- and it has a Democratic wing and a Republican wing? What if both wings want war and taxes and welfare and perpetual government growth, but offer only slightly different menus on how to achieve them? What if the Big Government Party enacted laws to make it impossible for meaningful political competition to thrive?</span><br /><span><br />What if the late progressive Edmund S. Morgan was right when he said that government depends on make believe? What if our ancestors made believe that the king was divine? What if they made believe that he could do no wrong? What if they made believe that the voice of the king was the voice of God?</span><br /><span><br />What if the government believes in make believe? What if it made believe that the people have a voice? What if it made believe that the representatives of the people are the people? What if it made believe that the governors are the servants of the people? What if it made believe that all men are created equal, or that they are not?</span><br /><span><br />What if the government made believe that it is always right? What if it made believe that the majority can do no wrong? What if the tyranny of the majority is as destructive to human freedom as the tyranny of a madman? What if the government knows this?</span><br /><span><br />What do we do about it?</span></p>Judge Andrew P. Napolltano2014-07-24T18:04:00ZSpying on InnocentsJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Spying-on-Innocents/43703068602827649.html2014-07-10T18:38:00Z2014-07-10T18:38:00Z<p><span>In what appears to be one of Edward Snowden's final revelations, the former CIA and NSA agent has demonstrated conclusively that the National Security Agency has collected and analyzed the contents of emails, text messages, and mobile and landline telephone calls from nine non-targeted U.S. residents for every one U.S. resident it has targeted.</span><br /><span><br />This puts the lie to the government's claims that it has only collected metadata -- identifying markers such as phone numbers and email addresses -- and not content from unsuspecting and unsuspected Americans. It puts the lie to the government's claims that it has studiously avoided prying into the private lives of Americans, in whom it has no intelligence-related or lawful interest. And this puts the lie to the government's contentions and the opinions of judges of the secret Foreign Intelligence Surveillance Court that the NSA's spying is somehow lawful, constitutional and helpful.</span><br /><span><br />We now know that the government has failed effectively to refute the Snowden claims that it has collected and maintained for future access massive amounts of personal materials about nearly all people in America since 2009. This includes the metadata and content of nearly every telephone call, email and text message made, sent or received in the U.S., as well as nearly every credit card bill, utility bill and monthly bank statement of nearly every person in the U.S.</span><br /><span><br />This was accomplished through the issuance of general warrants by FISA court judges. General warrants do not particularly describe the place to be searched or the person or thing to be seized as the Constitution requires. General warrants authorize the bearer to use the power of government to search wherever he wishes. The use by British troops of general warrants was a principal motivation for the American Revolution, and the very purpose and literal wording of the Fourth Amendment was to outlaw and prohibit them.</span><br /><span><br />Nevertheless, in their lust to appear muscular in our constitutionally sad post-9/11 era, politicians from both major political parties have defied the plain meaning and universally accepted history of the right to privacy and reverted to these odious instruments so condemned by the nation's founders and the Constitution's framers.</span><br /><span><br />The recent Snowden revelations showed that about 900,000 innocent U.S. residents -- including President Barack Obama himself -- were subjected to heavy NSA scrutiny. This was done by NSA agents who knew that the subjects of their scrutiny were not the targets of their investigation.</span><br /><span><br />How could that happen? It happened because the FISA court meets in secret, where the NSA has no opposition and the court has no transparency. This volatile mix has resulted in that court's granting well over 99 percent of NSA applications, including the "hop" rule implicated in the scrutiny of innocent Americans. In NSA-speak, a hop is a jump from one telephone conversation to another using a common phone.</span><br /><span><br />In the sterile, isolated and secret environment of the FISA court -- where even the judges cannot keep records of their own decisions -- NSA agents and lawyers have persuaded judges to permit spying on people who are six hops from a target. Thus, by way of illustration, if A is a target and speaks with B, the NSA can listen to all of B's conversations, even those not with A. The leap from A to B is one hop, and the NSA gets six, so it can listen to any C who has spoken to B, any D who has spoken to any C, any E who has spoken to any D, any F who has spoken to any E and any G who has spoken to any F.</span><br /><span><br />The 900,000 innocent U.S. residents whose private and personal lives have been subjected to NSA scrutiny -- including the examination of their photographs, intimate personal behavior, medical and financial needs -- consist of those who are within six hops from a target; in the illustration above, that would be every B, C, D, E, F and G whom the NSA can find. According to Snowden, there is no effort made by the NSA to minimize the scrutiny of those who are in the B-G category -- even though the chances that any of them are in cahoots with A are extremely remote, particularly once the NSA gets beyond B.</span><br /><span><br />But remoteness does not trouble the NSA, and neither does the Constitution. Remoteness is a serious constitutional and practical problem. It violates the rights of known innocents, as the NSA has no constitutional or lawful authority to spy on any non-targets and FISA court judges have no power to authorize that spying. It also consumes the time and resources of NSA agents, whose job it is to find terror plots.</span><br /><span><br />Is it any wonder that the Boston Marathon bombers discussed their plans with friends using their cellphones and the NSA missed it? Is it any wonder that when Gen. Keith Alexander, who ran the NSA for five years, was asked under oath how many plots his agents had uncovered with their spying on all Americans, he replied 57 and then the next day changed that reply to three and then was unable or unwilling to identify the supposed three? Is it any wonder that the two non-FISA court federal judges who scrutinized all this both found that it has uncovered no plots?</span><br /><span><br />When the government sees or hears all, it knows all. And when the people tolerate a government that knows all, they will be afraid to be themselves. And the joy of being and expressing oneself is the very reason we have a Constitution designed to restrain government.</span><br /><span><br />James Madison warned that the loss of liberty rarely happens in one great event but rather happens gradually, over time, resulting from the actions of government officials who claim to be fortifying security. He practically predicted</span><span> </span><span id="OBJ_PREFIX_DWT1056_com_zimbra_date" class="Object">today</span><span>'s events. The violations of our rights are obvious, undenied and undeniable. Yet what Madison probably feared most, he did not articulate: Once lost, liberty is lost forever.</span></p>Judge Andrew P. Napolltano2014-07-10T18:38:00ZAnother Pointless War?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Another-Pointless-War/586475559819669129.html2014-06-19T19:09:00Z2014-06-19T19:09:00Z<p><span>As we watch the collapsing government in Baghdad surrounded by a highly disciplined and serious force of Sunni-oriented fighters that has taken control of the most populous third of the country, we must, in John Adams' words, resist the temptation to slay the world's monsters. This time around, the monsters are the Sunni -- who ran the government of Iraq in the Saddam Hussein years and who are the ancient and persistent enemy of the Shia, who run the government</span><span> </span><span id="OBJ_PREFIX_DWT517_com_zimbra_date" class="Object">today</span><span>.</span><br /><span><br />The political and military force that is aiming at Iraq's capital calls itself the Islamic State of Iraq and Syria (ISIS). Its fighting force consists of about 8,000 men, yet it has marched through Iraq quickly. Last week, as ISIS forces approached the capital, a half-million Iraqi civilians got out of their way and tens of thousands of Iraqi security forces dropped their American military gear and Iraqi military uniforms and fled. The Iraqi army -- which the U.S. decimated 10 years ago -- cannot defend the current Iraqi government, which is as corrupt, authoritarian, anti-democratic and untrustworthy as Saddam's was, yet far less competent.</span><br /><span><br />There is a lesson in this, and it reveals the power of religious fanaticism when resisted by unprincipled political force. ISIS fighters are motivated by a hatred of American invaders and their Iraqi defenders and an embrace of fundamental Sharia principles, which are anathema to Judeo-Christian principles. These ISIS fighters truly are monsters -- they have crucified and decapitated deserters, traitors, captives, recalcitrants, Christians and Jews --_ and many Iraqi soldiers would rather join or walk away from them than resist them. The U.S.-trained Iraqi soldiers by and large view themselves as defending a temporary and inconsequential government. The ISIS fighters view themselves as being on a triumphal crusade.</span><br /><span><br />Complicating this is the affiliation that many of the political forces in ISIS have with the rebels fighting against President Bashar al-Assad of Syria. And adding to the politics-makes-strange-bedfellows aura of this mess is the offer of the Quds fighters from Iran's Revolutionary Guard -- which the State Department considers to be a terrorist organization -- to help defend Baghdad, relying on American air power to assist it. It is almost inconceivable that we could fight side-by-side, or bombs protecting boots, with the aspect of the government of Iran that both President George W. Bush and President Barack Obama have characterized as anathema to U.S. interests, and that has sworn to destroy Israel.</span><br /><span><br />Hence, Obama's dilemma is daunting. He is on record as saying that the war in Iraq was "dumb"; that the government there is secure and its forces are well-trained; that the rebels fighting Assad are freedom fighters who deserve American military support; and that the American troops he brought home from Iraq are not returning on his watch.</span><br /><span><br />Should he send troops back to Iraq to defend the government we installed when we toppled Saddam? _Should American lives and tax dollars be spent in another pointless effort to bring democracy to a culture that has persistently rejected it? Should we take sides using our military in what is essentially an ancient religious civil war? Is the national security of the U.S. even remotely affected by the outcome of the current Iraqi civil war?</span><br /><span><br />Since Bush persuaded Congress and the American people in 2003 that an appropriate response to 9/11 somehow was an invasion of Iraq, that country's stability has been undermined by the U.S., and it is now ripe for the sectarian violence that is devouring it. The stated purpose of the Iraq war was to root out weapons of mass destruction, which we now know did not exist there. Then the stated purpose became regime change, because Saddam tried to kill the elder President Bush. The other stated purpose of the war was our thoughtless embrace of the fanciful Bush doctrine, which was basically the rebranding of the discredited Wilsonian nonsense that we can use force to spread democracy.</span><br /><span><br />That, too, failed profoundly. In the process, 5,000 Americans died; 45,000 Americans were injured; 650,000 Iraqis died; 2,000,000 Iraqis fled the country; a half-trillion dollars in Iraqi assets were destroyed; and we borrowed a trillion dollars to invade and occupy Iraq (and another trillion to invade and occupy Afghanistan), which we still owe to the people who loaned it to us. Al-Qaida, which was not present in Iraq before 2003, is now openly there along with ISIS, its sister organization that is about to conquer the most politically important parts of the country.</span><br /><span><br /></span><span>America is no safer because of the Iraq war, but we are weaker. Our relationships among the people in the Middle East are far less sanguine, we have planted three generations' worth of hatred, distrust, and lust for vengeance among Middle Eastern youth, and we have a crushing war debt. We also have American cash and military hardware, including expensive and lethal Stinger missiles, now in the hands of ISIS.</span><span> </span><br /><span><br />We are witnessing the contemporary incarnation of the old Sunni/Shia/Kurd rivalry that has persisted in what is</span><span> </span><span id="OBJ_PREFIX_DWT519_com_zimbra_date" class="Object">today</span><span> </span><span>called Iraq for 1,000 years, and will persist until the country returns to its pre-modern sectarian borders and each ancient group has its own land.</span><br /><span><br />There is no bona fide American national security interest in jeopardy because of the persistent Iraqi civil war, and we have no lawful right to choose a side and assist it militarily. But the American military-industrial-neocon complex wants more war. We must resist them. We should gather all Americans in Iraq, take what moveable wealth is ours and come home -- and stop searching the world for monsters to destroy, as that will end up destroying us.</span></p>Judge Andrew P. Napolltano2014-06-19T19:09:00ZBeware a Beneficent GovernmentJudge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Beware-a-Beneficent-Government/640044892349432355.html2014-06-12T07:00:00Z2014-06-12T07:00:00Z<p><span>The president is an ardent progressive. This dastardly philosophy of government was brought into the American mainstream 100 years ago by a Republican, Theodore Roosevelt, and a Democrat, Woodrow Wilson. Its guiding principle is the belief that government -- not individuals -- is the chief engine of human progress. If that means government tearing down rich persons to help poor persons, if that means the massive redistribution of wealth, if it means federal regulation of every conceivable occupation or productive endeavor, if it means fighting an unjust war, progressives are for it.</span><br /><span><br />Before the progressives, the dominant political thinkers in America were Madisonians. James Madison, who kept the notes at the Constitutional Convention in Philadelphia in 1787 -- notes that eventually formed much of the language of the Constitution -- made clear what the purposes of the Constitution were: to prescribe discrete areas of human endeavor in which the new federal government could legislate; to set forth open-ended areas of human behavior in which no government could legislate; and to leave the remaining areas of governmental endeavor in the hands of the states. The areas delegated to the federal government are only 17 in number and generally are referred to as federal powers. The areas in which no government may regulate are infinite and generally are referred to as natural rights.</span><br /><span><br />The progressives have turned this philosophy on its head. TR and Wilson believed that the federal government could regulate any behavior, right any wrong, tax any event and curtail any freedom, subject only to the express prohibitions in the Constitution itself. This view of American government not only contradicts Madison, but it also contradicts the language of the Constitution itself, particularly the Ninth and Tenth Amendments, which state in writing what Madison said many times throughout his life.</span><br /><span><br />President Obama, most congressional Democrats and many congressional Republicans are ardent progressives. They view Congress as a general legislature with no limits to its powers -- and they mean no limits. For example, in an area clearly beyond congressional reach, such as in-state highway speed limits, the progressives found a way to extend their reach. They offered money to the states to repave their highways, with the condition that the states adhere to federally prescribed speed limits (only South Dakota declined). Once the courts gave their imprimatur to this assault on the Constitution, the feds realized that by spending taxpayer dollars -- by bribing the states -- they could extend their regulatory tentacles to any extra-constitutional area they chose.</span><br /><span><br />Progressivism's adherents finance the government by borrowing or by heavily taxing only the rich, both of which are sold as being painless to most voters. Yet, the former merely delays the due date of bills until </span><span id="OBJ_PREFIX_DWT478_com_zimbra_date" class="Object">tomorrow</span><span> </span><span>for goodies consumed</span><span> </span><span id="OBJ_PREFIX_DWT475_com_zimbra_date" class="Object">today</span><span>; the latter takes cash out of the free market</span><span> </span><span id="OBJ_PREFIX_DWT476_com_zimbra_date" class="Object">today</span><span>, where it could contribute to growth and jobs</span><span> </span><span id="OBJ_PREFIX_DWT477_com_zimbra_date" class="Object">tomorrow</span><span>, and puts it into the hands of the mindset that runs the Post Office and the Department of Veterans Affairs.</span><br /><span><br />Progressives hate the states because they can be laboratories of less government. They love central government and all of its creations, such as the cash-printing Federal Reserve, the wealth-stealing progressive income tax, and the concept of a federal safety net for all persons. None of this, except the income tax (which Wilson promised would not exceed 3 percent of adjusted gross income), is authorized by the Constitution.</span><br /><span><br />Yet</span><span> </span><span id="OBJ_PREFIX_DWT483_com_zimbra_date" class="Object">today</span><span>, we are witnessing a government that is beyond ideologically progressive. Does Obama understand that progressive ideas have consequences and that governmental behavior often has unintended consequences? It would appear not, as his long train of incompetence and indifference, grounded in progressive thought, keeps picking up speed. It is crushing human freedom, destroying human wealth and even taking human lives.</span><br /><span><br />Under his presidency, the government saddled us all with a three-sizes-fits-all version of compulsory health care (which caused more than five million persons to lose their coverage and their doctors); it has been spying on all Americans all the time (and we sleepily permit it to do so); it allowed our ambassador in Libya to be murdered (after it destroyed the lawful government there); it told illegal aliens they need not worry about deportation (and thus encouraged the immigration of hundreds of thousands more -- even unaccompanied children -- to our shores); it neglected veterans to the point of death in government hospitals (demonstrating conclusively that the feds cannot deliver health care); it released assets material to terrorist organizations into the theater of war in the Middle East (ostensibly in a prisoner swap to save a weird military bird who once embraced his captors); it has claimed the power to kill Americans it views as a threat to others and yet too troubl</span><br /><span> </span><span>esome to arrest and bring to trial (all the while claiming it has a secret reading of the Constitution and American law that somehow justifies this); and it has added $6 trillion to government debt (with no plans to repay it).</span><br /><span><br />What's going on? The modern presidency is blinded by a conceit that says it can do no wrong. This is partially the result of the passage of power from the states to the feds and from Congress to the president and partially the fault of a president who relishes telling us all how to live. In Obama's hands, all this power produces the vast unhappiness and government recklessness we now see every day.</span><br /><span><br />The same Madison whom Obama rejects warned 200 years ago against the Obama mindset: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."</span></p>Judge Andrew P. Napolltano2014-06-12T07:00:00ZCan President Obama Faithfully Enforce the Laws?Judge Andrew P. Napolltanohttp://www.BillOReilly.com/b/Can-President-Obama-Faithfully-Enforce-the-Laws/690870445404400448.html2014-06-06T00:46:00Z2014-06-06T00:46:00Z<p><span>On the same weekend that the Secretary of Veterans Affairs resigned amidst the scandal of veterans dying before the government's doctors could treat them in government hospitals, on the heels of another revelation of NSA unconstitutional spying in which federal agents have been seizing the digital images of our loved ones and friends that have accompanied our emails, and a week after the White House intentionally or negligently revealed the true identity of the CIA station chief in Afghanistan, President Obama announced a new foreign policy initiative called "No One Left Behind." The reference was to the sole service member then held in captivity in the venue of America's longest war, the one most Americans have forgotten: Afghanistan.</span><br /><span><br />Late last week, Obama announced the release of Sgt. Bowe Bergdahl, who had been held by the Taliban for more than five years. Bergdahl apparently shed his weapons and equipment, sent his personal belongings home, and walked into the hands of his captors one day, unwilling to remain a part of his military unit and largely ignorant of the fate that faced him. The president must have been determined to bring Bergdahl home at all costs, because the manner of his doing so makes it likely that he violated federal criminal law in the deal he cut with Bergdahl's captors.</span><br /><span><br />The government apparently negotiated with the Taliban, a group characterized by federal law as a non-state terrorist organization. The deal required the U.S. to release five former senior Taliban intelligence and military officials from the American prison camp at Guantanamo Bay, Cuba. Therein lies the legal and constitutional conundrum generated by the post-9/11 contempt for the Constitution that has been a hallmark of Congress and the Bush and Obama administrations.</span><br /><span><br />The concept of Gitmo as a holding facility of endless duration for uncharged and untried human beings is unrecognizable when viewed through the prism of the Constitution, and in all five cases in which this concept was addressed by the Supreme Court, the court directed the government to put the detainees on trial before a neutral public tribunal using rules that were in place before the detentions began. Both administrations have been averse to public trials, preferring to keep secret their own behavior in the manner of arresting, detaining and interrogating these people. As a result, few trials have been held, only two people have been convicted and both of them were released based on the prison time they had already served.</span><br /><span><br />Yet the release of these Taliban leaders in a prisoner swap materially assists the Taliban in such a way as to be criminal. How can it be criminal to release a prisoner? It is not a crime to release a prisoner who has been acquitted, but it is criminal to release an untried prisoner whom the government reasonably believes will aid a terrorist group. Federal law prohibits any person from providing material assistance to a terrorist organization, even if the organization fails to use the assistance, and even if the use of it produces no measurable harm.</span><br /><span><br />Material assistance includes anything from money to maps to professional services; it includes the appearance of support and even a false belief in support. It was intended to criminalize intentionally causing any assets of value to come into the control of any non-state terrorist group that American law has condemned.</span><br /><span><br />This is the same statute that the courts have interpreted so broadly that merely listening to a harangue by a terrorist leader at his training camp, without any further behavior, is considered providing material assistance to the group that runs the camp. If hard assets like money and political support are covered by the statute, then human assets are covered, as well. This is the same statute that has been employed successfully to prosecute those who fall victim to FBI stings, in which the defendant typically is a dim-witted person led by FBI agents to believe falsely that he is assisting a terrorist group, but no actual assistance ever flows to the group.</span><br /><span><br />The president no doubt will argue that under the Constitution he and he alone makes foreign policy and, as well, as commander in chief of the military, he enjoys the constitutional authority to make these prisoner swaps. Yet, the president has sworn an oath faithfully to enforce all federal law. He cannot knowingly or legally exclude himself from the obligation to comply with laws with which he disagrees -- that's the Nixon argument ("When the president does it, that means it's not illegal."), which the courts and modern history have rejected.</span><br /><span><br />The president has a serious problem with competence and with fidelity to his oath. In one week, he has alienated and demoralized much of the intelligence community by revealing the true name of one of them and by releasing their worst nightmare back into the theater of Middle East warfare. He has, as well, flagrantly failed to enforce federal law by materially aiding a non-state terrorist group condemned by American law. This is almost inconceivable in an American president.</span><br /><span><br />Yet it is almost predictable with this president. In our Orwellian post-9/11 world, Congress thinks it can alter basic constitutional principles, and the president thinks he can enforce only the laws he likes. Did we break away from a king, who thought his powers were given to him by God, 240 years ago only to elect a president who behaves like a king? Thomas Jefferson saw this coming in his final years, when he argued that an elected despot is not the government we fought for.</span><br /><span><br />It surely is not the government Jefferson fought for; but</span><span> </span><span id="OBJ_PREFIX_DWT319_com_zimbra_date" class="Object">today</span><span>, it is the government we have.</span></p>Judge Andrew P. Napolltano2014-06-06T00:46:00ZNo Place To HideJudge Andrew Napolltanohttp://www.BillOReilly.com/b/No-Place-To-Hide/-474664314861707127.html2014-05-29T19:39:00Z2014-05-29T19:39:00Z<p><span>With heart-pounding suspense, John le Carre-like intrigue and Jeffersonian fidelity to the principles of human freedom, Glenn Greenwald has just published "No Place to Hide." The book, which reads like a thriller, is Greenwald's story of his nonstop two weeks of work in May and June of 2013 in Hong Kong with former CIA agent and NSA contractor-turned-whistleblower Edward Snowden. Greenwald was the point person who coordinated the public release of the 1.7 million pages of NSA documents that Snowden took with him in order to prove definitively that the federal government is spying on all of us all the time.</span><br /><span><br />The revelations constituted for Greenwald the scoop of the century; for Snowden, the exposure of massive government violations of basic constitutional principles by his former bosses; for the NSA and the Bush and Obama administrations, the revelation of criminal wrongdoing orchestrated by two presidents themselves; and for the American public, a painful realization that the Constitution is only as valuable a restraint on the government as is the fidelity to uphold it of those in whose hands we have reposed it for safekeeping. As Greenwald makes clear, it is not in good hands.</span><br /><span><br />"No Place to Hide" not only tells of Snowden's initially frustrating and anonymous efforts to reach out to Greenwald and the others; it not only carefully explains the insatiable appetite of the NSA to learn everything about everyone ("Collect it all" was a continuously posted NSA motto); it is also a morality tale about the personal courage required of Snowden and Greenwald and his colleagues to expose government wrongdoing and the risk to their lives, liberties and properties in doing so.</span><br /><span><br />In the midst of one of their endless Hong Kong hotel meetings, Snowden told the journalists that the local CIA station employed agents trained to kill; and it was just a few blocks away. Then The Guardian's lawyers informed Greenwald that the Bush and Obama administrations had not hesitated to use the Espionage Act of 1917 -- a World War I-era relic, still on the books, employed to chill, stifle, suppress and ultimately punish free speech -- to attempt to lock up journalists even when they revealed the truth. At this point in my reading the book on Memorial Day, I noticed that my pulse was racing, even though I obviously knew the outcome.</span><br /><span><br />The road to the outcome began about a year ago when Greenwald received email messages from an anonymous yet persistent and intellectually intriguing source. The source demonstrated such a superb command of the Internet, such a patient understanding of Greenwald's need for a basic education in the craft of digital spying, such a Jeffersonian understanding of the constitutional role of government in our lives, and so enticed Greenwald and his editors at The Guardian that, sight unseen, they traveled to Hong Kong to see whether the source possessed the documentary evidence he claimed to have of the most massive and sophisticated American government spying upon innocents in our history. He did.</span><br /><span><br />Greenwald skillfully uses NSA documents to demonstrate that the highest government officials to discuss this spying in public -- President Bush, President Obama, Bush Attorney General Alberto Gonzales, Director of National Intelligence James Clapper, former NSA boss Gen. Keith Alexander -- all lied to the American public, (in the case of Clapper and Alexander, they probably did so criminally, as they were testifying to Congress), and they engaged in a conspiracy to violate the constitutionally protected rights to privacy of every American. After initially denying all this, then disparaging Snowden, then questioning his loyalty, then questioning his sanity, the government reluctantly admitted to all that Snowden revealed. How could it not? Snowden's revelations consist entirely of the NSA's own documents, many of which are reproduced in Greenwald's book.</span><br /><span><br />The government has argued that when it engages in all this spying, it is looking for a needle in a haystack. It claims it can only keep us safe if it knows all and sees all. Yet, such an argument cannot be made with intellectual honesty by anyone who has sworn to uphold the Constitution.</span><br /><span><br />The Constitution was written to keep the government off of the people's backs. The Constitution protects the right to be left alone and the right to be different. The Constitution presupposes the existence of natural rights and areas of human endeavor that are insulated from government knowledge and immune to government regulation, except in the most carefully prescribed circumstances. Those circumstances require that probable cause of crime be possessed by the government about identifiable persons and demonstrated to a neutral judge before the government may engage in any surveillance of that person -- and all those NSA conspirators and all their judicial facilitators know this.</span><br /><span><br />And what has Congress done in response to all this indiscriminate spying -- spying that we now know is done upon members of Congress themselves? The Senate has done nothing, yet. The House passed legislation last week called the USA Freedom Act. This deceptively entitled nonsense so muddies the legal waters with ambiguous language that if enacted into law, the bill actually would strengthen the ability of the NSA to spy on all of us all the time. Is it any surprise that Obama and the NSA leadership support these so-called reforms?</span><br /><span><br />The duty of government is to keep us free and to keep our freedoms safe. If it fails to protect freedom, it should be replaced. If it continues to spy on all of us all the time, then Greenwald's title -- taken from a warning issued by the late Sen. Frank Church in the pre-Internet era -- will have come to pass. We will have no place to hide and no freedoms left to exercise without the government's approval.</span></p>Judge Andrew Napolltano2014-05-29T19:39:00ZAnother Week of Government LawlessnessJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Another-Week-of-Government-Lawlessness/916834320305941396.html2014-05-22T23:19:00Z2014-05-22T23:19:00Z<p>What if the federal government is shameless? What if it personifies the adage of do as I say and not as I do? What if it does the very things it prosecutes others for doing? What if it has written laws and enacted procedures so that it can spy and kill, while it charges others with doing just that?</p>
<p>What if the feds recently indicted five low-level Chinese military officers for spying on American corporations? What if the feds accused these officers of using their computers in Beijing to hack into computers in Denver that are not owned by the federal government but by well-known and wealthy American corporations? What if these corporations are rich enough to install digital protections and procedures to insulate themselves from hackers? What if when Google and Apple and Facebook were hacked, they protected themselves from their hackers at no expense to the taxpayers?</p>
<p>What if the hackers who hacked into Google and Apple and Facebook -- the hackers that sent them into an expensive self-defense mode -- were agents of the federal government? What if those agents worked for the NSA? What if those NSA agents took oaths to uphold the Constitution? What if they violated their oaths and the Constitution with gusto?</p>
<p>What if the NSA spies on more people in China than the federal government has accused the Chinese military officers of spying on in the United States? What if the NSA used its computers in Maryland to hack into Chinese government computers in Beijing in order to identify the officers it just indicted?</p>
<p>What if the NSA spies on more than one billion persons every minute of every hour of every day? What if the NSA spies on the Pope, the chancellor of Germany, members of the Chinese Communist Party Central Committee and all persons in the Bahamas, as well as every person in America, all day and every day? What if the NSA's spies gather so much personal data about and from their one billion targets that, if reduced to print, the data collected would fill 27 times the content of the Library of Congress -- every day?</p>
<p>What if the accusations against the Chinese military officers -- who are unlikely to stand trial here -- are just another diversion by the Obama administration to take our eyes off its foreign adventurism, which has caused chaos in Libya, its failures in Benghazi, which may expose political gain at the price of lives, and its incompetence at the Veterans Administration, which the president has known about since before he became president?</p>
<p>What if the president dispatched his wife to champion the cause of 300 innocent, harmless little girls who were kidnapped by madmen in a lawless area of Africa? What if the hearts and tears of millions were so stirred up by this that the federal government could secretly and without public criticism try to rescue and save these little girls? What if the president's drones have killed more little girls than the kidnappers have kidnapped? What if the 3,000 people who were killed by the president's drones, but were not targeted by them, are victims of extra-judicial murder, but the president calls them collateral damage?</p>
<p>What if, when the president decided he wanted to kill people in foreign lands without declaring war on the government of those lands and without indicting and trying the people he wanted to kill, he went to lawyers in the Department of Justice and asked them to find a way to make the killings legal? What if he also asked those lawyers to find a way to make his killings of Americans in foreign lands legal?</p>
<p>What if the Constitution declares that if the government wants to take life, liberty or property from anyone, it must seek what it wants by means of the courts and not by means of drones? What if, in order to advise the president that he can legally kill, the lawyer assigned to the task sent numerous legal memoranda to the president? What if that lawyer persuaded the president that he could legally and constitutionally kill whom he wishes? What if that lawyer who advised the president that he could kill with drones -- even Americans if he wished -- has been nominated to become a federal judge? What if the bench to which the president nominated this lawyer is the second highest court in the land?</p>
<p>What if the Constitution requires Senate confirmation of all of the president's judicial nominees? What if Sen. Rand Paul and others asked this nominee for public copies of his legal memoranda in which he found a way for the president legally to kill Americans? What if this nominee and the president refused to make these memoranda available for public scrutiny until a court ordered them to do so?</p>
<p>What if this lawyer claims that he can be faithful to the Constitution and to presidential extra-judicial killing at the same time? What if such a dual loyalty is metaphysically impossible because the Constitution mandates the rule of law and presidential killing mandates the rule of men? What if Paul and others have talked their hearts out in an effort to stop this lawyer from achieving a lifetime judgeship, but the political bosses of the Senate made sure he became a federal judge? What if this judge judged you?</p>
<p>What if these Alice-in-Wonderland tales are really happening? What if you are reading this on a computer and the NSA is looking right at you? What if the government regularly breaks its own laws? What if the government thinks that wrong is right? What if the government doesn't know the difference?</p>
<p>What do we do about it?</p>Judge Andrew Napolltano2014-05-22T23:19:00ZA Dog Whistle to the LeftJudge Andrew Napolltanohttp://www.BillOReilly.com/b/A-Dog-Whistle-to-the-Left/-838595675856152120.html2014-05-15T20:52:00Z2014-05-15T20:52:00Z<p>I am not a fan of former U.S. Treasury Secretary Timothy F. Geithner. He presided over the politically conceived, patently unconstitutional and anti-free market taxpayer bailouts of banks, automakers and insurance companies in the latter part of the administration of former President George W. Bush, when he was the head of the Federal Reserve Bank of New York, and during the first term of President Obama, when he was the secretary of the Treasury.</p>
<p>In those years and still today he has argued that aggressive government intervention leads to a stronger financial system because the government will take risks with taxpayer money that the taxpayers themselves will not take with it. He believes in the use of government coercion, rather than the voluntary choices of consumers and investors.</p>
<p>Those of us who embrace the free market do so not only because it has produced more broad-based prosperity than any government has, but also because it offers the only moral system of financial exchanges for goods and services because in a truly free market every exchange is voluntary. Coercing money from taxpayers to pay for the failures of businesses is theft.</p>
<p>We also argue that the recession of 2008 was largely caused by the bursting of the housing bubble, and that bubble was induced by the government. The Federal Reserve, on whose board Geithner sat, commanded artificially low interest rates that encouraged wild speculative borrowing, and Fannie Mae and Freddie Mac, those federal government garbage cans, used taxpayer dollars to buy all the bad loans the imprudent lenders could sell them. This, too, encouraged wild and speculative loans to people who could not afford to repay them.</p>
<p>But I write today not to rehash old arguments. Regrettably, the government today -- the welfare and warfare states in which we Americans now live -- is comfortably in the hands of progressives. With the exception of the Goldwater and early Reagan years, the leadership of both major political parties has been dominated by progressives -- heavy progressives in the Democratic Party and light progressives in the Republican Party -- since World War II. These politicians are disciples of Woodrow Wilson and Theodore Roosevelt, two presidents who turned the Constitution on its head.</p>
<p>James Madison stated that he wrote the Constitution conscious of the need to restrain the federal government -- to limit it to the specific areas of governmental authority set forth in the Constitution and to guarantee areas free from all government regulation. Wilson and TR viewed the Constitution as liberating the federal government to do whatever its leadership wished, except when the Constitution expressly prohibits the wished-for behavior.</p>
<p>When it comes to understanding the powers of the federal government, Geithner is in the Wilson and TR camp. Those of us who believe in maximum individual liberty are in the Madison camp. Yet, Geithner tipped his hand a bit earlier this week in a new memoir, and that tip caught the public's attention.</p>
<p>The tip revealed that in 2009, shortly before his first round of interviews as Treasury secretary on the Sunday morning television network talk shows, Geithner endured a prep session administered to him by Dan Pfeiffer, then the senior adviser to Obama. Pfeiffer instructed Geithner to suggest to the American public that Social Security is operating in the black and thus is not a contributing cause of the ballooning federal deficit. He stated that the president needed that message to go out to his base as a "dog whistle to the left" -- meaning a signal to the president's political base, the truth be damned.</p>
<p>Did Pfeiffer ask Geithner to lie? The secretary apparently thought so, even though the government's fuzzy math can make red ink look black. Whatever the truth, Geithner's version is that both he and Pfeiffer believed the ink was red, and when Pfeiffer asked him to deceive the public by claiming it was black, he declined.</p>
<p>This requested deception is telling. This is not spin. Spin is the artful use of words so that the speaker needn't lie. Geithner believes he was being asked to tell a lie. Can the government morally remain silent to preserve human freedom? Of course it can. Can it deceive by lying to the public on a material matter? If it does, it will shatter the social contract it has with the people, and the officials who lie risk becoming a law unto themselves, because after they are caught, no one will believe them.</p>
<p>The Geithner allegations bring to sharper focus the litany of Obama administration lies. The president and his folks lied about Obamacare ("You can keep your doctor and your insurance," the president proclaimed incessantly). They lied about the NSA spying ("No, sir," Gen. James Clapper replied when asked before Congress whether the feds were engaged in massive government spying on innocent Americans). They lied about Benghazi ("It was a spontaneous eruption over an American film," said former UN Ambassador Susan Rice). The president even lied about lying ("Transparency and the rule of law will be the touchstones of this presidency").</p>
<p>Can government officials legally lie? Regrettably, yes. The courts have ruled that the remedy for government lying is to vote it out of office, even when it prosecutes people for harmlessly doing what it has done to shatter its bonds with us. So, why were Roger Clemens and Martha Stewart prosecuted for petty lies about private matters that affected no one, and Clapper and Rice, who attempted to lull the country into a false sense of comfort, not prosecuted?</p>
<p>Perhaps because the president needed some dog whistles to the left, and Clapper and Rice provided them.</p>Judge Andrew Napolltano2014-05-15T20:52:00ZFinding the Truth at BenghaziJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Finding-the-Truth-at-Benghazi/-788488859812205947.html2014-05-09T00:03:00Z2014-05-09T00:03:00Z<p><span>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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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</span><span id="OBJ_PREFIX_DWT1506_com_zimbra_date" class="Object">Sunday</span><span> </span><span>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.</span><br /><span><br />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.</span><br /><span><br />It worked.</span><br /><span><br />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.</span><span> </span><br /><span><br />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.</span><br /><span><br /></span><span>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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />And so, here comes Watergate, 21st-century style -- except this time around, innocent people died. This time around, will it have the same outcome?</span></p>Judge Andrew Napolltano2014-05-09T00:03:00ZA Legal Way To Kill?Judge Andrew Napolltanohttp://www.BillOReilly.com/b/A-Legal-Way-To-Kill/-71726724308309750.html2014-04-24T19:13:00Z2014-04-24T19:13:00Z<p><span>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.</span><br /><span><br />"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.</span><br /><span><br />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."</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><span> </span><br /><span><br />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.</span><br /><span><br />Until now.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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."</span><br /><span><br />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.</span><br /><span><br />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.</span><span> </span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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?</span></p>Judge Andrew Napolltano2014-04-24T19:13:00ZHope for the DeadJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Hope-for-the-Dead/904142859878384614.html2014-04-17T19:10:00Z2014-04-17T19:10:00Z<p><span>What is the connection between freedom and rising from the dead?</span><br /><span><br />When America was in its infancy and struggling to find a culture and frustrated at governance from Great Britain, the word most frequently uttered in speeches and pamphlets and editorials was not safety or taxes or peace; it was <em>freedom</em>.</span><br /><span><br />Two acts of Parliament broke the bonds with the mother country irreparably. The first was the Stamp Act, which was enforced by British soldiers, who used general search warrants issued by a secret court in London to rummage through the personal possessions of any colonists they chose, ostensibly looking to see whether those colonists had purchased the government's stamps. The second intolerable act was the imposition of a tax to pay for the Church of England, which all adult male property-owning colonists were forced to pay, no matter their religious beliefs.</span><br /><span><br />The Stamp Act assaulted the right to be left alone in the home, and the Church of England tax assaulted the freedom to retain one's earnings and to choose to support one's own means of worship. The two taxes caused many colonists to realize they needed to secede from England and form their own country in which freedom would be protected by the government, not assaulted by it.</span><br /><span id="OBJ_PREFIX_DWT993_com_zimbra_date" class="Object"><br />Today</span><span>, it seems the power of the government continues to expand and the freedom of the individual continues to shrink. The loss of freedom comes in many forms. Sometimes, it is direct and profound, as when the government forces you to buy a health insurance policy for yourself or your employees that pays for contraceptive services, euthanasia and abortion, no matter your core religious beliefs. Sometimes, it is more subtle, like when the government prints money to pay its bills, and as a result, all the money and assets you already have lose much of their value.</span><span> </span><br /><span><br />Sometimes the government steals freedom without you knowing it, like when NSA agents in defiance of the Constitution they have sworn to uphold read your email and text messages and listen to your phone calls. Sometimes the government's assaults on freedom are just plain inexplicable, like when the president wins political support by lying repeatedly about keeping your doctor and your health insurance and about the government's not reading your emails or listening to your phone calls.</span><br /><span><br />Freedom is the ability of every person to exercise his own free will, rather than be subject to the will of the government or anyone else. Free will is a characteristic we share in common with God. He created us in His image and likeness. As He is perfectly free, so are we.</span><br /><span><br />When the government takes away our free will, the government steals a gift from God; it violates the natural law; it prevents us from having and utilizing the means to the truth. The moral ability to exercise free will to seek the truth is a natural right that all humans possess, and the government may only morally interfere with the exercise of that right when one affirmatively has given it away by using fraud or force to interfere with the exercise of someone else's natural rights.</span><br /><span><br />We know from the events 2,000 years ago, which Christians commemorate and celebrate this week, that freedom is the essential means to discover and unite with the truth. And to Christians, the personification, the incarnation, the perfect manifestation of truth is Jesus -- who is the Christ, the Son of God and the Son of the Blessed Virgin Mary.</span><br /><span><br />On the first Holy</span><span> </span><span id="OBJ_PREFIX_DWT995_com_zimbra_date" class="Object">Thursday</span><span>, Jesus attended a traditional Jewish Passover Seder. Catholics believe that at His last supper, He performed two miracles so that we could stay united to Him. He transformed ordinary bread and wine into His own body, blood, soul and divinity, and He empowered His disciples and their successors to do the same.</span><br /><span><br />On the first Good</span><span> </span><span id="OBJ_PREFIX_DWT997_com_zimbra_date" class="Object">Friday</span><span>, the Romans executed Jesus because they were persuaded that by claiming to be the Son of God, He might foment a revolution against them. The revolution He fomented was in the hearts of men and women. The Romans had not heard of a revolution of the heart; nevertheless they feared a revolution that would disrupt their worldly power, and so they condemned Him to death by crucifixion.</span><br /><span><br />Jesus had the freedom to reject this horrific event, but He exercised His freedom so that we might know the truth. The truth He manifested is that His acceptance of the destruction of His body would enable Him to die so that He could rise from the dead. On Easter, three days after He died, that manifestation was complete when He rose from the dead. By doing that, he demonstrated to us that while living we can liberate our souls from the slavery of sin and our free wills from the oppression of the government, and after death we can rise to be with Him.</span><br /><span> <br /></span><span>Easter -- which manifests our own immortality -- is the linchpin of human existence. With it, life is worth living, no matter its costs or pains. Without it, life is meaningless, no matter its fleeting joys or triumphs. Easter has a meaning that is both incomprehensible and simple. It is incomprehensible that a human being had the freedom to rise from the dead. It is simple because that human being was and is God.</span><br /><span><br />Jesus is the hypostatic union: not half-God and half-man, not just a godly good man, but truly and fully God and at the same time truly and fully man. When the Romans killed Jesus, they killed God. When the dead Jesus rose from His tomb, God rose from the dead.</span><br /><span><br />What does Easter mean? Easter means that there is hope for the dead. If there's hope for the dead, there's hope for the living. But, like the colonists who fought the oppression of the king, we the living can only achieve our hopes if we have freedom. And that requires a government that protects freedom, not one that assaults it.</span><br /><span><br />Happy Easter.</span></p>Judge Andrew Napolltano2014-04-17T19:10:00ZA Government Admission of WrongdoingJudge Andrew Napolltanohttp://www.BillOReilly.com/b/A-Government-Admission-of-Wrongdoing/-763499700214194725.html2014-04-10T23:48:00Z2014-04-10T23:48:00Z<p><span>Last week, National Intelligence Director Gen. James R. Clapper sent a brief letter to Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee, in which he admitted that agents of the National Security Agency (NSA) have been reading innocent Americans' emails and text messages and listening to digital recordings of their telephone conversations that have been stored in NSA computers, without warrants obtained pursuant to the Constitution. That the NSA is doing this is not newsworthy -- Edward Snowden has told the world of this during the past 10 months. What is newsworthy is that the NSA has admitted this, and those admissions have far-reaching consequences.</span><br /><span><br />Since the Snowden revelations first came to light last June, the NSA has steadfastly denied them. Clapper has denied them. The recently retired head of the NSA, Gen. Keith Alexander, has denied them. Even President Obama has stated repeatedly words to the effect that "no one is reading your emails or listening to your phone calls."</span><br /><span><br />The official NSA line on this has been that the Foreign Intelligence Surveillance Act (FISA) court has issued general warrants for huge amounts of metadata only, but not content. Metadata consists of identifying markers on emails, text messages and telephone calls. These markers usually identify the computer from which an email or text was sent or received, and the time and date of the transmission, as well as the location of each computer. Telephone metadata is similar. It consists of the telephone numbers used by the callers, the time, date and duration of the call, and the location of each telephone used in the call.</span><br /><span><br />American telecommunications and Internet service providers have given this information to the NSA pursuant to warrants issued by secret FISA court judges. These warrants are profoundly unconstitutional, as they constitute general warrants. General warrants are not obtained by presenting probable cause of crime to judges and identifying the person from whom data is to be seized, as the Constitution requires. Rather, general warrants authorize a government agent to obtain whatever he wants from whomever he wants it.</span><br /><span><br />These general warrants came about through a circuitous route of presidential, congressional and judicial infidelity to the Constitution during the past 35 years. The standard that the government must meet to obtain a warrant from a FISA court judge repeatedly has been lessened from the constitutional requirement of probable cause of crime, to probable cause of being a foreign agent, to probable cause of being a foreign person, to probable cause of talking to a foreign person. From this last category, it was a short jump for NSA lawyers to persuade FISA court judges that they should sign general warrants for all communications of everyone in America because the NSA was not accessing the content of these communications; it was merely storing metadata and then using algorithms to determine who was talking to whom.</span><br /><span><br />This was all done in secret -- so secret that the president would lie about it; so secret that Congress, which supposedly authorized it, was unaware of it; and so secret that the FISA court judges themselves do not have access to their own court records (only the NSA does).</span><br /><span><br />It was to further this public facade that Clapper lied to the Senate Intelligence Committee last year when he replied to a question from Wyden about whether the NSA was collecting massive amounts of data on hundreds of millions of Americans by saying, "No" and then adding, "Not wittingly." The stated caveat in the NSA facade was a claim that if its agents wanted to review the content of any data the NSA was storing, they identified that data and sought a warrant for it.</span><br /><span><br />This second round of warrants is as unconstitutional as the first round because these warrants, too, are based on NSA whims, not probable cause of crime. Yet, it is this second round of warrants that Clapper's letter revealed did not always exist.</span><br /><span><br />Snowden, in an act of great personal sacrifice and historic moral courage, directly refuted Clapper by telling reporters that the NSA possessed not just metadata but also content -- meaning the actual emails, text messages and recordings of telephone calls. He later revealed that the NSA also has the content of the telephone bills, bank statements, utility bills and credit card bills of everyone in America.</span><br /><span><br />In his letter to Wyden last week, Clapper not only implicitly acknowledged that Snowden was correct all along, but also that he, Clapper, lied to and materially misled the Senate Intelligence Committee, and that the NSA is in fact reading emails and listening to phone calls without obtaining the second warrant it has been claiming it obtains.</span><br /><span><br />One wonders whether Obama was duped by Clapper when he denied all this, or whether he just lied to the American people as he has done in the past.</span><br /><span><br />One also wonders how the government could do all this with a straight face. This is the same government that unsuccessfully prosecuted former New York Yankees pitcher Roger Clemens twice for lying to a congressional committee about the contents of his urine. Shouldn't we expect that Clapper be prosecuted for lying to a congressional committee about the most massive government plot in U.S. history to violate the Fourth Amendment? Don't hold your breath; the president will protect his man.</span><br /><span><br />Yet, Congress could address this independent of a president who declines to prosecute his fellow liars. Congress could impeach Clapper, and the president would be powerless to prevent that. If Congress does that, it would be a great step forward for the rule of law and fidelity to the Constitution. If Congress does nothing, we can safely conclude that it is complicit in these constitutional violations.</span><br /><span><br />If Congress will not impeach an officer of the government when it itself is the victim of his crimes because it fears the political consequences, does it still believe in the Constitution?</span></p>Judge Andrew Napolltano2014-04-10T23:48:00ZWhat if Secrecy Trumps the Constitution?Judge Andrew Napolltanohttp://www.BillOReilly.com/b/What-if-Secrecy-Trumps-the-Constitution/-129173110393899971.html2014-04-03T23:47:00Z2014-04-03T23:47:00Z<p><span>What if the National Security Agency (NSA) knows it is violating the Constitution by spying on all Americans without showing a judge probable cause of wrongdoing or identifying the persons it wishes to spy upon, as the Constitution requires? What if this massive spying has come about because the NSA found it too difficult to follow the Constitution?</span><br /><span><br />What if the Constitution was written to keep the government off the people's backs, but the NSA and the president and some members of Congress have put the NSA not only on our backs, but in our bedrooms, kitchens, telephones and computers? What if when you look at your computer screen, the NSA is looking right back at you?</span><br /><span><br />What if the NSA really thought it could keep the fact that it is spying on all Americans and many others throughout the world secret from American voters? What if Congress enacted laws that actually delegate some congressional powers to elite congressional committees -- one in the Senate and one in the House? What if this delegation of power is unconstitutional because the Constitution gives all legislative powers to Congress as a whole and Congress itself is powerless to give some of its power away to two of its secret committees? What if the members of these elite committees who hear and see secrets from the NSA, the CIA and other federal intelligence agencies are themselves sworn to secrecy?</span><br /><span><br />What if the secrets they hear are so terrifying that some of these members of Congress don't know what to do about it? What if the secrecy prohibits these congressional committee members from telling anyone what they know and seeking advice about these awful truths? What if they can't tell a spouse at home, a lawyer in her office, a priest in confessional, a judge when under oath in a courtroom, other members of Congress or the voters who sent them to Congress?</span><br /><span><br />What if this system of secrets, with its promises not to reveal them, has led to a government whose spies have intimidated and terrified some members of Congress? What if one member of Congress -- Sen. Jay Rockefeller, a Democrat from West Virginia -- wrote to then-Vice President Dick Cheney and voiced fears that totalitarianism is creeping into our democracy? What if he wrote that letter in his own hand because he feared he might be prosecuted if he dictated it to a secretary or gave it to his secretary for typing? What if he was terrified to learn what the spies told him because he knew he could not share it with anyone or do anything about it?</span><br /><span><br />What if the NSA's chief apologist in Congress -- Sen. Dianne Feinstein, a Democrat from California -- took to the only safe place in the world where she could reveal what she learned from the spies and not be prosecuted for violating her oath of secrecy and there revealed a secret? What if that place is the Senate floor, and what if, while there, she revealed that she approved of the NSA spying on all Americans but disapproved of the CIA spying on her staff? What if it is unlawful and unconstitutional for the CIA to spy on anyone in the United States -- whether private citizen, illegal alien or member of a Senate staff?</span><br /><span><br />What if the equality of the branches of government is destroyed when one of them spies on the other? What kind of a president spies on Congress? What kind of members of Congress sit back and let themselves become victims of spying? What if Congress could stop all spying on all Americans by a simple vote? What if Congress could stop the president from spying on its own members with a simple vote? What if Congress is afraid to take these votes?</span><br /><span><br />What if secret government is unaccountable precisely because it is secret? What if the people's representatives in government have a moral obligation to reveal to their constituents that the president's spies are spying on all of us, and they -- members of Congress -- have not lifted a finger to stop it? Would we all vote differently if we knew the secrets the government has shared with a select few but kept from the rest of us? What if your own representatives in the House and the Senate are lying to you because of fear of the consequences of revealing secrets?</span><br /><span><br />What if the NSA chief claimed to a congressional committee -- one of those with which he secretly shares secrets -- that all this spying has stopped 57 terror plots? What if the next day he changed that number to three plots? What if he has declined to say what those three plots were? What if a federal judge found that all this spying has not prevented any identifiable plots?</span><br /><span><br />What if all this spying doesn't work? What if the NSA has too much data about all of us? What if the president knowingly declined to uphold the Constitution and instructed his spies to do the same? What if the NSA is so accustomed to spying on all of us all the time that it lacks the ability to obtain probable cause and to identify the persons upon whom it needs to spy? What if the government's culture of secrecy and spying has taken on a life of its own? What if even those who started it are afraid to stop it?</span><br /><span><br />What if the NSA missed the shoe bomber, the underwear bomber, the Ft. Hood massacre, the Times Square bomber, the Boston Marathon bombers, the coup in Kiev and the Russian invasion of Ukraine? What if the NSA wasted its time spying on Aunt Tillie in Des Moines and the Pope in Rome and Chancellor Merkel in Berlin, instead of Vladimir Putin in Moscow?</span><br /><span><br />What if secrecy has replaced the rule of law? What if that replacement has left us in the dark about what the government knows and what it is doing? What if few in government believe in transparency? What if few in government believe in the Constitution?</span><br /><span><br />What do we do about it?</span></p>Judge Andrew Napolltano2014-04-03T23:47:00ZProbable CauseJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Probable-Cause/764916076430154069.html2014-03-27T19:09:00Z2014-03-27T19:09:00Z<p>Except for the definition and mechanism of proving treason, no area of the Constitution addressing the rights of all persons when the government is pursuing them is more specific than the Fourth Amendment. The linchpin of that specificity is the requirement that the government demonstrate probable cause to a judge as a precondition to the judge issuing a search warrant. The other specific requirement is identity: The government must identify whose property it wishes to search or whose behavior it wishes to monitor, because the Fourth Amendment requires that all warrants specifically describe the place to be searched or the person or thing to be seized.</p>
<p>The principal reason for these requirements is the colonial revulsion over general warrants. A general warrant does not specifically describe the place to be searched or the person or thing to be seized, and it is not based on the probable cause of criminal behavior of the person targeted by the government.</p>
<p>With a general warrant, the government simply gets authority from a judge to search a haystack looking for a needle, and in the process, it may disturb and move all the straw it wants. Stated differently, a general warrant permits the government to intrude upon the privacy of persons as to whom it has no probable cause of criminal behavior and without stating what it is looking for.</p>
<p>The Foreign Intelligence Surveillance Act (FISA) court has been issuing general warrants to the National Security Agency (NSA) since 1978, but it was not until last June that we learned that these general warrants have been executed upon the telephone calls, text messages, emails, bank records, utility bills and credit card bills of all persons in America since 2009.</p>
<p>The constitutional requirement of probable cause is not political fancy; rather, it saves us from tyranny. Probable cause is a quantum of evidence that is sufficient to lead a neutral judge to conclude that the person about whom the evidence has been presented is more likely than not to possess further evidence of criminal behavior, or has more likely than not engaged in criminal behavior that is worthy of the government's use of its investigatory tools such that the government may lawfully and morally invade that person's natural right to privacy.</p>
<p>Last week, Robert S. Litt, general counsel for the Office of the Director of National Intelligence, which runs the NSA, engaged in a curious colloquy with members of the president's Privacy and Civil Liberties Oversight Board. Litt complained that presenting probable cause about individuals to judges and then seeking search warrants from those judges to engage in surveillance of each of those individuals is too difficult.</p>
<p>This is a remarkable admission from the chief lawyer for the nation's spies. He and the 60,000 NSA employees and vendors who have been spying on us have taken oaths to uphold the Constitution. There are no loopholes in their oaths. Each person's oath is to the entire Constitution -- whether compliance is easy or difficult. Yet the "too difficult" admission has far-reaching implications.</p>
<p>This must mean that the NSA itself acknowledges that it is seeking and executing general warrants because the warrants the Constitution requires are too difficult to obtain. Stated differently, the NSA knows it is violating the Fourth Amendment to the Constitution, because that amendment expressly forbids general warrants.</p>
<p>In my career as a lawyer, judge, law professor, author and television commentator, I have heard many excuses for violating the Constitution. I reject all of them when they come from one who has sworn to uphold the Constitution, yet I understand the intellectually honest excuses -- like exigent circumstances -- when they are based on duty. The NSA's excuses are not intellectually honest, and they are not based on duty. They are based on laziness.</p>
<p>But there was more than met the eye in Litt's testimony last week. Two days after Litt admitted to the use of general warrants, and while the president was in Europe, the White House leaked to the press its plans to curtail the massive NSA spying. Those plans, which would change only the appearance of what the NSA does but not its substance, have three parts.</p>
<p>The first change relieves the NSA of the need for general warrants to require delivery of massive amounts of data about innocent Americans as to which the NSA has no probable cause, because the second change requires the computer servers and telecoms to preserve their records -- instead of the NSA preserving them -- and make them "immediately" available to the NSA when it comes calling. And the third is the requirement of a warrant from a FISA judge before the NSA may access that stored data. But because that warrant is not based on probable cause but rather on NSA whim, it is a foregone conclusion that the general warrants for examination, as opposed to delivery, will be granted. The FISA court has granted well in excess of 99 percent of the general warrants the NSA has sought.</p>
<p>Litt must have known what the White House planned to leak when he made his "too difficult" complaint, as it fits nicely with this new scheme. Yet the scheme itself, because it lacks the requirement of probable cause that the Constitution requires, is equally as unconstitutional and morally repugnant as what the NSA has been doing for five years. Moreover, the NSA will not exactly go hat in hand to the computer servers and telecoms once it wishes to hear telephone calls or read emails or credit card bills. Its agents will simply press a few buttons on their computers when they wish, and the data they seek will be made available to them.</p>
<p>These so-called changes should be rejected by Congress, which should overhaul the NSA instead. Hasn't Congress seen enough? The NSA and the CIA spy on the courts, Congress, the military, the police and everyone in America. This keeps none of us safer. But it does lessen our freedom when those in whose hands we repose the Constitution for safekeeping look the other way. What other freedoms are slipping because Congress, too, thinks upholding the Constitution is too difficult?</p>Judge Andrew Napolltano2014-03-27T19:09:00ZFreedom for Me, but Not for TheeJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Freedom-for-Me-but-Not-for-Thee/925281811844629441.html2014-03-20T07:00:00Z2014-03-20T07:00:00Z<span>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 Agency (CIA) over the issue of domestic spying.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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?</span><br /><span><br />You get the picture. She has no problem with experiments with our liberties, unless she and her staff are the victims.</span><br /><span><br />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.</span><br /><span><br />We are now well beyond that beginning.</span><span> </span>Judge Andrew Napolltano2014-03-20T07:00:00ZA Rivalry of Government HackersJudge Andrew Napolltanohttp://www.BillOReilly.com/b/A-Rivalry-of-Government-Hackers/517402387723240303.html2014-03-13T20:30:00Z2014-03-13T20:30:00Z<p>The government is caught up in another scandal in which federal agents have been accused of hacking into one another's computers.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>13In 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.</p>
<p>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.</p>Judge Andrew Napolltano2014-03-13T20:30:00ZMonster PutinJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Monster-Putin/108432939676193200.html2014-03-07T01:17:00Z2014-03-07T01:17:00Z<p><span>What happens when the United States government participates meaningfully in toppling foreign governments in the name of spreading democracy? That behavior usually results in unintended consequences and often produces disasters.</span><br /><span><br />When the United States invaded Iraq in 2003, initially to search for weapons of mass destruction that we now know the Bush administration knew did not exist there, and eventually for regime change, the U.S. succeeded in changing profoundly the Iraqi government. But in the process, we lost 4,500 American troops, suffered 45,000 substantial injuries, borrowed and spent and have not paid back more than $2 trillion, caused the deaths of 650,000 Iraqis, displaced 2.5 million Iraqis, and unleashed into Iraq our public enemy, al-Qaida. Al-Qaida was not in Iraq before we invaded.</span><span> </span><span id="OBJ_PREFIX_DWT1409_com_zimbra_date" class="Object">Today</span><span>, it controls one-third of that now unstable country.</span><br /><span><br />In 2010, President Obama decided he no longer liked America's favorite Middle Eastern dictator, President Hosni Mubarak of Egypt, even though he and his four immediate predecessors gave the Mubarak government about $4 billion annually. So our agents fomented revolution in the streets while Obama suggested openly that it was time for Mubarak to leave office. Then the hoped-for and promised free elections took place, and avowed enemy of the West and Islamic fanatic Mohammed Morsi became the first popularly elected president in Egyptian history. Then the U.S. decided it did not want him in power no matter the lawfulness and moral legitimacy of his election, and so the Obama administration encouraged a military coup.</span><br /><span><br />Morsi was arrested by his own military commanders and is currently on trial for permitting his soldiers under those same commanders to kill nine people who were resisting the coup, even though the American-backed military plotters -- who now rule Egypt and are prosecuting Morsi -- have killed thousands of Egyptian civilians who attempted to resist the removal of Morsi from office. The result is a military dictatorship and murderous resistance far more odious than in the Mubarak years.</span><br /><span><br />And in Ukraine in 2004, the Bush administration fomented the so-called Orange Revolution. This, too, was done by our diplomats and intelligence community, whose agents agitated demonstrators in the streets and liberally distributed American dollars to them. This resulted in a free election, which resulted in subsequent free elections, until the most recent of those produced a president who -- as an ex-communist -- was more drawn to Russia than to the U.S. or Europe.</span><br /><span><br />When the Ukraine government needed cash and Russia offered it a better deal than the European Union, our imperial diplomats and lawless intelligence gurus were embarrassed. So, the U.S. fomented another revolution in the streets of Kiev. One of our diplomats, Victoria Nuland, acknowledged as much in a tapped and taped (complete with expletives) and eventually viral cellphone conversation. Then, Viktor Yanukovich, the popularly and lawfully elected Ukraine president, was toppled and fled to Moscow. The new unelected Ukraine president has received American recognition and help. Earlier this week, the U.S. offered him $1 billion in immediate cash.</span><br /><span><br />Enter Vladimir Putin. He is the popularly elected president of Russia who has designs on reconstituting the old Soviet Union. Putin is also an ex-KGB agent; he is a torturer, a murderer, a tyrant and a monster. He often has lamented the demise of the former Soviet Union. Ukraine was a part of that union until the evil empire dissolved in 1991. It was the most economically productive part of that union.</span><span> </span><span id="OBJ_PREFIX_DWT1411_com_zimbra_date" class="Object">Today</span><span> </span><span>it enjoys a mostly free market and is highly entrepreneurial, though partly a welfare state. Roughly two-thirds of Ukraine identifies with Europe and one-third with Russia.</span><br /><span><br />After Yanukovich showed up at Putin's doorstep in Moscow, Putin flexed his muscles by sending 16,000 Russian troops, in uniforms without insignias and wearing black masks (you cannot make this up), over the border to occupy Crimea, a province of Ukraine, which had been part of Russia and the Soviet Union until 1954.</span><br /><span><br />Putin's invasion is profoundly unlawful, as it constitutes the introduction of military troops into a sovereign territory without governmental invitation or consent, and the absence of identifying insignia puts this invasion outside the protections of the Geneva Conventions and the rules of war. Hence the Russian troops are legally fair game for Ukrainian troops and civilian militias. But don't expect that to happen. Russia has two times the number of tanks as Ukraine, 10 times the troops and 12 times the air power.</span><br /><span><br />As well, don't expect the Russians to leave. Most residents of Crimea are Russian speaking and actually welcome their invaders (again, you cannot make this up). And Putin's track record in foreign incursions shows a pattern of retaining conquered territories. When he invaded Georgia in 2008, he kept two provinces, which are still occupied with more than 40,000 idle and costly Russian troops.</span><br /><span><br />The U.S. and Europe are in no position to resist the Russian invasion, nor should they. Europe receives roughly 30 percent of its oil, natural gas and coal from Russia. If the U.S. tightens the economic screws on Russia, American banks will suffer, and the Russian oligarchs and Russian people will suffer, but no group will suffer as much as Europeans who have grown dependent on Russian fuel. And Putin is unmoved by personal embarrassment or human suffering.</span><br /><span><br />The stated purpose of the Russian invasion is to protect predominantly ethnic Russians in Crimea from the mob-induced fate of Yanukovich. At first blush, this seems nonsense. But consider the view from Moscow of the American-induced expulsion of the popularly elected and Russian-oriented Ukraine president. And then consider this: What would the U.S. do if the Chinese had fomented a revolution in Mexico and installed a Chinese-friendly government there that solicited Chinese loans and invited the Chinese to help govern? Would the U.S. protect English-speaking American-friendly folks along the Texas-Mexico border?</span><br /><span><br />And how is anyone in the U.S. harmed by Putin's lawlessness? Should the United Sates government roam the world seeking monsters to slay, or should it learn from its recent grave mistakes? Nearly two centuries ago, President John Quincy Adams warned his successors against the foreign policies that would be manifest in the Bush/Obama years. "Americans should not go abroad to slay dragons that they do not understand in the name of spreading democracy."</span><br /><span><br />But the government is an old dog that cannot learn new tricks.</span></p>Judge Andrew Napolltano2014-03-07T01:17:00ZNew Assaults on American LawJudge Andrew Napolltanohttp://www.BillOReilly.com/b/New-Assaults-on-American-Law/597357251087523514.html2014-02-28T21:56:00Z2014-02-28T21:56:00Z<p><span>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.</span><br /><span><br />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.</span><br /><span><br />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.<br /></span></p>
<p><span>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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />What will they do next?</span></p>Judge Andrew Napolltano2014-02-28T21:56:00ZAn Unconscionable SilenceJudge Andrew Napolltanohttp://www.BillOReilly.com/b/An-Unconscionable-Silence/-745089655030970896.html2014-02-20T19:39:00Z2014-02-20T19:39:00Z<p><span>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.</span><br /><span><br />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.</span><br /><span><br />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.</span><span> </span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><span> </span><br /><span><br />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?</span><br /><span><br />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.</span><br /><span><br />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.</span></p>Judge Andrew Napolltano2014-02-20T19:39:00ZA New Assault on Freedom of the PressJudge Andrew Napolltanohttp://www.BillOReilly.com/b/A-New-Assault-on-Freedom-of-the-Press/127430248405989150.html2014-02-13T23:26:00Z2014-02-13T23:26:00Z<p><span>Last week, a little noticed clash took place on Capitol Hill involving the fundamental values underlying the First Amendment. The issue was the lawfulness of publishing the secrets that were given to reporters by former National Security Agency (NSA) contractor Edward Snowden. The disputants were Cong. Mike Rogers, R-Mich., and FBI Director James Comey.</span><br /><span><br />Rogers is the chief congressional apologist for the massive NSA spying apparatus. He is the current chair of the House Permanent Select Committee on Intelligence, and in that capacity, he is one of the dozen members of Congress from both houses who were privy to much of the NSA spying before the Snowden revelations. In our perverse post-9/11 world, federal law actually permits this Gang of 12 to substitute for all 535 members of Congress with respect to knowledge of intelligence secrets.</span><br /><span><br />Since 9/11, the Bush and Obama administrations have succeeded in claiming they have congressional consent for the massive NSA spying by merely getting a consensus from the Gang of 12. There is, of course, no provision in the Constitution for the substitution of all 535 members of Congress with a select group of 12 of them, but Congress and Presidents Bush and Obama have gone along with this. The kicker is that all members of the Gang of 12 have been sworn to secrecy and threatened with prosecution if they reveal to anyone, including other members of Congress, what the NSA and other intelligence agencies reveal to them. What kind of representative democracy is that?</span><br /><span><br />Rogers is one of the chief architects and cheerleaders of this post-9/11 unconstitutional version of representative democracy. This is the same system that sends the NSA to judges of the Foreign Intelligence Surveillance Court for search warrants that purport to authorize the NSA to capture the content of every text message, email, telephone call, bank statement, credit card bill and utility bill of everyone in America. This apparatus, too, involves another Gang of 12: the 12 federal judges on the FISA court. They suffer from the same secrecy kicker as Rogers' gang does: They, too, are sworn to secrecy and have been implicitly threatened with prosecution if they violate their oaths.</span><br /><span><br />These judges issue search warrants based on the NSA's unchallenged wishes, not based on the constitutional requirement of particularly identifying for the court the target of the search and then presenting evidence to the court that constitutes probable cause of criminal behavior on the part of the target. This, too, is unconstitutional, as it is the product of a congressional alteration of the Constitution. As most schoolchildren know, Congress cannot alter or amend the Constitution; only the states can. Yet, by instructing FISA judges to issue search warrants that do not meet the constitutional identity of target and probable cause standards, Congress has substantially altered the Constitution, and the judicial Gang of 12 has gone along with this.</span><br /><span><br />As one of the architects of all this domestic spying, and as one of the believers that the public should be kept in the dark about it, Rogers has not been happy with the Snowden revelations. Snowden subscribed to the same oath of secrecy as the two Gangs of 12, but he also swore -- as have both Gangs of 12 -- to uphold the Constitution.</span><span> </span><br /><span><br />To Snowden, the people have a fundamental right to know that their government has cooked up the most massive secret violation of civil liberties in the nation's history, and his oath to uphold the Constitution compelled his revelations. To Rogers, Snowden must be a traitor or a spy.</span><br /><span><br />Even the Obama administration has not bought that argument, as it only charged Snowden with the delivery of classified materials to unauthorized persons. It did not charge him with treason (waging war on the United States or giving aid and comfort to enemies of the United States) or spying (giving classified secrets to enemies of the United States).</span><br /><span><br />Frustrated that Snowden is apparently living freely in Moscow, Rogers summoned the FBI director before his House committee to float a truly novel and pernicious theory of First Amendment law. At that hearing last week, he attempted to persuade Comey to accept his idea that publishing classified secrets is a crime if the publisher was paid for his work. So, if the owners of and reporters at The Guardian of London or The New York Times or The Washington Post, who publicly revealed the secrets Snowden gave them, were paid for their work, the Rogers argument goes, they, too, could be prosecuted for espionage.</span><br /><span><br />Rogers is not a lawyer, but he is an ex-FBI agent. He should know the law, but it was necessary for Comey to tutor him. The law is clear and was stated by the Supreme Court in the Pentagon Papers case, and Comey publicly reminded Rogers of this: If classified materials are of interest to the public, their publication is protected.</span><br /><span><br />Stated differently, it matters not how the journalist acquires the classified materials or whether the journalist and his bosses are paid for his work. If the classified materials are newsworthy, they can be published, and no one can be sued or prosecuted for doing so.</span><br /><span><br />In the clash between government secrecy and public transparency, the Framers placed a value judgment in the First Amendment. Since the press is the eyes and ears of the public, and since the public needs to know what the government is doing so it can make informed decisions when electing people to the government, publishers and reporters are immune from criminal prosecution and civil liability for lifting the veil on the governments' secrets. An informed public is more likely to make better decisions than an ignorant one.</span><br /><span><br />I am happy that Comey did not fall for Rogers' ignorant argument, and I am happy, too, that the argument will fall on deaf ears. In a free society, knowledge is superior to ignorance. Politicians who would criminalize publishing the truth should be voted out of office.</span></p>Judge Andrew Napolltano2014-02-13T23:26:00ZExecutive Order TyrannyJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Executive-Order-Tyranny/-56670701618618193.html2014-02-06T08:00:00Z2014-02-06T08:00:00Z<p><span>Can the president legally bypass Congress and rule the government by decree?</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />He has carried out that threat already. In</span><span> </span><span id="OBJ_PREFIX_DWT422_com_zimbra_date" class="Object">June 2012</span><span>, 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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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</span><span> </span><span id="OBJ_PREFIX_DWT424_com_zimbra_date" class="Object">Jan. 1, 2014</span><span>, which is the date in the law after which the substandard policies are unlawful, to</span><span> </span><span id="OBJ_PREFIX_DWT425_com_zimbra_date" class="Object">Jan. 1, 2015</span><span>, which is the date he now prefers.</span><br /><span><br />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.</span><br /><span><br />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 <em>veto</em> that legislation should Congress pass it.</span><br /><span><br />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.</span><br /><span><br />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?</span></p>Judge Andrew Napolltano2014-02-06T08:00:00ZA Sorry State of the UnionJudge Andrew Napolltanohttp://www.BillOReilly.com/b/A-Sorry-State-of-the-Union/-909223952212123468.html2014-01-30T08:00:00Z2014-01-30T08:00:00Z<p><span>What if the state of the union is a mess? What if the government spies on all of us all of the time and recognizes no limits to its spying? What if its appetite for acquiring personal knowledge about all Americans is insatiable? What if the government uses the microchips in our cellphones to follow us and listen to us as we move about?</span><br /><span><br />What if the Constitution expressly prohibits the government from doing this? What if the government has written laws that are interpreted in secret by judges who meet in secret and are applied by federal agents who operate in secret and their secret behavior doesn't even resemble what the laws say they can do?</span><br /><span><br />What if the feds have seized the</span><span> </span><span id="DWT256" class="ZmSearchResult"><span id="DWT258" class="ZmSearchResult">content</span></span><span> </span><span>of every text message, email, mobile and landline telephone call, utility bill, credit card bill and bank statement of everyone in America for the past four years? What if no law has authorized them to capture this? What if when asked by members of Congress, in public and under oath, high-ranking officials, at least one with ribbons on his chest and stars on his shoulders, lied about what the government is doing?</span><br /><span><br />What if the government's spies have so insinuated themselves into our computers that they can capture every keystroke we press on all of our computers before we hit "send"? What if the feds have hacked into the servers of every major computer service provider in the country and they know what we have typed before we even make corrections? What if the feds have a copy of what we have deleted? What if our typed innermost thoughts and even second thoughts that were never sent in emails nevertheless reside in the government's databank?</span><br /><span><br />What if the president knows all this and supports what his spies are doing? What if he secretly authorized all this, but only admitted to some of it when he got caught? What if he uses his spies to tell him what he wants to know about those who oppose him?</span><br /><span><br />What if the president sold Congress and the country a Trojan horse called Obamacare? What if he promised that under Obamacare you could keep the health insurance you had before Obamacare, and he lied and he knew it? What if he promised that under Obamacare you could keep the same physicians who treated you before Obamacare, and he lied and he knew it?</span><br /><span><br />What if Obamacare made insurance coverage so expensive that some people lost their jobs because their employers could not afford to pay for it? What if under Obamacare more than six million Americans lost their insurance coverage overnight and most haven't gotten it back yet? What if this was the president's plan all along so that he could orchestrate a government takeover of the health insurance industry?</span><br /><span><br />What if the secretary of defense and the chairman of the Joint Chiefs of Staff told the president one night that our consulate in Benghazi, Libya, was under attack by organized al-Qaida troops while the attack was taking place? What if the president did nothing about it? What if the president knew the truth about the Benghazi attack, but for three weeks claimed that the attack was just an out-of-control political demonstration by fanatics who were upset about a cheap 15-minute low-grade Hollywood movie that never made it into theaters?</span><br /><span><br />What if our ambassador to Libya died in that attack and the president covered up the facts surrounding his death? What if the president dispatched our U.N. ambassador to all major TV networks to hide the truth? What if he tried to promote the lying U.N. ambassador to secretary of state?</span><br /><span><br />What if, in five years, the president has borrowed more than $6 trillion and spent it all on his favorite industries and risky bailouts and fruitless wars, and now has nothing to show for it but the debts that will one day come due? What if the government claims the unemployment rate is 6.7 percent but so many people have stopped looking for jobs that it is really 10.2 percent?</span><br /><span><br />What if the president alone has increased the number of people on food stamps and increased the amount of money they each receive? What if half of the adults in the nation are now receiving material assistance from the government in the form of money the government has borrowed? What if generations of Americans as yet unborn will be obliged to pay back the money the president has borrowed and given away?</span><br /><span><br />What if nearly two-thirds of Americans simply don't trust the president's judgment? What if the president alone raised the minimum wage to be paid to workers on federal projects? What if the president has threatened to use his pen and his phone to operate the government in ways the Constitution forbids? What if the Constitution makes clear and the courts have underscored the truism that the president cannot modify or amend or postpone the effective dates of federal laws? What if the president has modified and amended and postponed federal laws so as to help his friends and wound his foes?</span><br /><span><br />What if the president has tried to force the Little Sisters of the Poor to pay for contraceptive services that they cannot use and that are prohibited by the Roman Catholic Church? What if the Sisters sued the president and asked the court to relieve them of the burden of paying for contraception? What if the president resisted the Sisters' lawsuit and questioned the sincerity of their religious beliefs? What if the Supreme Court stopped the president from forcing the nuns to pay for contraception before it even heard their case?</span><br /><span><br />What if the president has discussed none of this in his State of the Union address? What if the president believes that during his second term in office he answers to no one? What if the president lives and works surrounded by those who reinforce his beliefs? What if he has rejected his oath of fidelity to the Constitution? What will he do next? What will we do about it?</span></p>Judge Andrew Napolltano2014-01-30T08:00:00ZPresidential PlaceboJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Presidential-Placebo/541761833210349550.html2014-01-23T23:30:00Z2014-01-23T23:30:00Z<p>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.</p>
<p>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.</p>
<p>Just how massive is this scandal? The Washington Post has reported that 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 that 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.</p>
<p>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?</p>
<p>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.</p>
<p>In a thinly disguised effort to change the subject, Obama's Friday 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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>Judge Andrew Napolltano2014-01-23T23:30:00ZThe Nuns and the PresidentJudge Andrew Napolltanohttp://www.BillOReilly.com/b/The-Nuns-and-the-President/980892134737733116.html2014-01-16T20:23:00Z2014-01-16T20:23:00Z<p><span>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.</span><br /><span><br />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.</span><br /><span><br />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.</span><span> </span><br /><span><br />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.</span><br /><span id="OBJ_PREFIX_DWT4598_com_zimbra_date" class="Object"><br />Today</span><span>, 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 that 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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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.</span><br /><span><br />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?</span><br /><span><br />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.</span></p>Judge Andrew Napolltano2014-01-16T20:23:00ZSpying on CongressJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Spying-on-Congress/-768579430172679023.html2014-01-09T08:00:00Z2014-01-09T08:00:00Z<p><span>Happy New Year. Just when you thought the NSA spying scandal couldn't get any worse, it has.</span><span> </span><br /><span><br />Last week, Sen. Bernie Sanders, I-Vt., wrote to Gen. Keith Alexander, director of the National Security Administration (NSA), and asked plainly whether the NSA has been or is now spying on members of Congress or other public officials. The senator's letter was no doubt prompted by the revelations of Edward Snowden to the effect that the federal government's lust for personal private data about all Americans and many foreigners knows no bounds, and its respect for the constitutionally protected and statutorily enforced right to privacy is nonexistent.</span><br /><span><br />The senator's benign and neutral letter came on the heels of a suggestion by his colleague Sen. Rand Paul, R-Ky., to the effect that Alexander's boss, Gen. James Clapper, director of national intelligence, perjured himself before a Senate subcommittee when he testified that the NSA is not gathering massive amounts of data from tens or hundreds of millions of Americans. Alexander himself is also on the hook for having testified in a highly misleading manner to a House committee when he was asked whether the NSA has the ability to read emails and listen to phone calls and he stated: "No, we don't have that authority."</span><br /><span><br />Thus far, Paul is the only member of Congress possessed of the personal courage to call out Clapper by arguing that working for the government is no defense to lying under oath. The gravity of Paul's charges was enhanced by revelations subsequent to the Clapper testimony to the effect that Clapper was told in advance of his testimony what questions would be put to him and then declined an offer afterward to correct any misstatements. In a new low for members of Congress, the NSA's own advocate in the House, Long Island's Rep. Peter King, R-N.Y., attacked Paul for attacking Clapper for lying under oath. The King argument is: Anything goes when it comes to national security -- even lying under oath, even violating everyone's constitutional rights, even destroying the freedom you have sworn to protect.</span><br /><span><br />All of this is background to the timing of Sanders' letter. That Clapper perjured himself before, and Alexander misled, Congress is nothing new. And the punishments for lying to Congress and for misleading Congress are identical: five years per lie or per misleading statement. Hence, the silence from the NSA to Sanders.</span><br /><span><br />Well, it wasn't exactly silence, but rather a refusal to answer a simple question. The NSA did reply to Sanders by stating -- in an absurd oxymoron -- that members of Congress receive the same constitutional protections as other Americans: that is to say, <em>none</em> from the NSA.</span><br /><span><br />The NSA's refusal to answer Sanders' question directly is a tacit admission, because we are all well aware that the NSA collects identifying data on and the content of virtually every email, text message and phone call sent or received in the U.S. In fact, just last week, the secret FISA court renewed the order authorizing massive records collection for the 36th time. If members of Congress are treated no differently than the American public, then the NSA is keeping tabs on every email, text and phone call members of Congress send and receive, too.</span><br /><span><br />That raises a host of constitutional questions. Under the Constitution, Congress and the executive branch are equals. The president -- for whom the NSA works -- can no more legally spy on members of Congress without a search warrant about the members to be spied upon than Congress can legally spy on the president. Surely the president, a former lecturer in constitutional law at the University of Chicago Law School, knows this.</span><br /><span><br />There was a time when the NSA's failure to answer such a straightforward question as Sanders has asked would have led to hearings and bipartisan investigations. However, Democrats are largely silent, choosing party and personality over principle, and Republicans know all of this started under President George W. Bush and are afraid to open a can of worms -- except for King, who apparently likes to be spied upon.</span><br /><span><br />Under laws that have been held to be both unconstitutional and constitutional by two different courts, the NSA can obtain surveillance orders with no articulated suspicion about those to be spied upon, even though the Fourth Amendment requires probable cause, a high level of individualized suspicion.</span><br /><span><br />Basically, the NSA can tell a FISA judge that two thugs in area code 212 are chatting with five jerks in area code 312, and they are all texting six malcontents in area code 310. It knows who they are and where they are, but instead of going to New York and Chicago and Los Angeles and following them and investigating them, instead of asking for a search warrant to spy on just them, the NSA wants a warrant to spy on <em>everyone</em> in those area codes. It is a lot easier for our spies to throw a few switches at a telecom office than to burn shoe leather. If authorities in New Jersey had asked this of me when I was on the bench there, I'd have thrown them out of my courtroom because the Constitution expressly forbids this.</span><br /><span><br />Just as disturbing as the revelation that the NSA is spying on members of Congress is the fear of what the NSA does with the information it collects. In September, The Guardian newspaper reported that the NSA shares raw, unfiltered information it has gathered with some foreign nations, including England and Israel. It also reported that the NSA shares this raw data with its boss: President Obama. Hence, Sanders' letter.</span><br /><span><br />The lawlessness continues. The president's NSA spies remain out of control. They are spying on Congress and the courts; the military and the press; the CIA and other spies; friends, foes and the Pope. If we fail to stop this soon, the next generation of Americans will not even know what privacy is.</span></p>Judge Andrew Napolltano2014-01-09T08:00:00ZAlmost OrwellianJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Almost-Orwellian/698091269189152698.html2013-12-21T03:21:00Z2013-12-21T03:21:00Z<p><span>"Almost Orwellian" -- that's the description a federal judge gave earlier this week to the massive spying by the National Security Agency (NSA) on virtually all 380 million cellphones in the United States.</span><br /><span><br />In the first meaningful and jurisdictionally grounded judicial review of the NSA cellphone spying program, U.S. District Court Judge Richard Leon, a George W. Bush appointee sitting in Washington, D.C., ruled that the scheme of asking a secret judge on a secret court for a general warrant to spy on all American cellphone users without providing evidence of probable cause of criminal behavior against any of them is unconstitutional because it directly violates the Fourth Amendment.</span><br /><span><br />Readers of this page are familiar with the purpose of that Amendment and the requirements it imposes on the government. The Framers intended it to prevent the new government in America from doing to Americans what the British government had done to the colonists under the king.</span><br /><span><br />The British government had used general warrants -- which are not based on individualized probable cause and do not name the place to be searched or the person or thing to be seized -- to authorize British soldiers to search the colonists wherever they pleased for whatever they wished to seize. The reason for the Fourth Amendment requirement of individualized probable cause and specificity in the warrant is to prevent the very type of general warrant that the NSA has claimed is lawful. The reason for preventing general warrants is that they have become an instrument of tyranny.</span><br /><span><br />It is against this well-known historical context that Leon engaged in his analysis of the feds who spy on us. This is truly the first jurisdictionally based judicial ruling on the cellphone aspect of the domestic spying that former NSA contractor Edward Snowden revealed last spring. Though the NSA and the Obama and Bush administrations have claimed that judges of the Foreign Intelligence Surveillance Court (FISC) not only found the NSA cellphone spying to be constitutional, but also authorized it, those judges were performing a statutory clerical function, not a constitutional jurisdictionally based judicial function.</span><br /><span><br />The Constitution requires a case or controversy -- basically lawyers arguing against each other on behalf of clients whose interests are adverse -- in order to invoke the jurisdiction of federal courts. The FISC judges, who sit and sign in secret, do not do so under the Constitution, because they have no case or controversy before them. They have only the NSA before them. Leon was the first federal judge to rule on the constitutionality of NSA spying under the Constitution -- in the context of a litigant challenging the government and the government defending itself. And he found that spying to be in violation of the Constitution.</span><br /><span><br />In his ruling, he dispatched with clarity the government's argument that two Supreme Court cases from the late 1970s and early 1980s, in which the court permitted evidence obtained from telephone billing data without a search warrant to be introduced in criminal cases, support the constitutionality of the NSA's phone metadata collection. That was before the era of cellphones, and that was before the Supreme Court ruled that a search warrant is required to hunt electronically for marijuana plants in a home and to install and follow a GPS in a car. By ruling that two now-outdated Supreme Court cases are no longer controlling, he almost guaranteed that the high court will take this case.</span><br /><span><br />The NSA was emasculated before Leon. Gone were the lies of Director of National Intelligence James Clapper, who stated under oath that the government does not spy on Americans. Gone was the bravado of NSA boss Gen. Keith Alexander, who claimed initially under oath that his spies stopped 52 terrorist plots and then mysteriously corrected himself and said they really stopped just three, but declined to identify the three. Gone was the if-we-don't-do-this-we-all-will-die argument. Gone was the if-you-have-nothing-to-hide-you-have-nothing-to-fear nonsense that congressional NSA apologists have advanced.</span><br /><span><br />In place of the political claptrap is the court's finding that not only is the NSA spying unconstitutional, but it doesn't work. After hearing the NSA state its case, Leon wrote, "I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism." And he added an admonition that it doesn't help the NSA's case to be less than candid with the judge.</span><br /><span><br />This was not a difficult case for the court. The government's behavior was utterly indefensible. It was profoundly dismissive of the Constitution that federal employees have sworn to uphold. Leon wrote: "I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast."</span><br /><span><br />Even though Madison would be aghast, surely the Obama administration will appeal this, and just as surely, appellate judges or Supreme Court justices will have the final say. But for now, we have the great satisfaction of knowing that an independent judiciary has saved our liberties from the tyranny of the majority. And this is a cause for great joy.</span><br /><span> </span><span>* * *</span><br /><span>Also a cause for great joy is the rebirth of Christ in our hearts as we celebrate</span><span> </span><span id="OBJ_PREFIX_DWT865_com_zimbra_date" class="Object">Christmas</span><span>. As we do so, may you embrace and enjoy the freedom to seek the Truth. And may you find the Truth, which is Him.</span></p>Judge Andrew Napolltano2013-12-21T03:21:00ZA Conspiracy So VastJudge Andrew Napolltanohttp://www.BillOReilly.com/b/A-Conspiracy-So-Vast/707553201242234349.html2013-12-13T18:08:00Z2013-12-13T18:08:00Z<p><span>Readers of this page are well aware of the revelations during the past six months of spying by the National Security Agency (NSA). Edward Snowden, a former employee of an NSA vendor, risked his life and liberty to inform us of a governmental conspiracy to violate our right to privacy, a right guaranteed by the Fourth Amendment.</span><br /><span><br />The conspiracy he revealed is vast. It involves former President George W. Bush, President Obama and their aides, a dozen or so members of Congress, federal judges, executives and technicians at American computer servers and telecoms, and the thousands of NSA employees and vendors who have manipulated their fellow conspirators. The conspirators all agreed that it would be a crime for any of them to reveal the conspiracy. Snowden violated that agreement in order to uphold his higher oath to defend the Constitution.</span><br /><span><br />The object of the conspiracy is to emasculate all Americans and many foreigners of their right to privacy in order to predict our behavior and make it easier to find among us those who are planning harm.</span><br /><span><br />A conspiracy is an agreement among two or more persons to commit a crime. The crimes consist of capturing the emails, texts and phone calls of every American, tracing the movements of millions of Americans and foreigners via the GPS system in their cellphones, and seizing the bank records and utility bills of most Americans in direct contravention of the Constitution, and pretending to do so lawfully. The pretense is that somehow Congress lessened the standard for spying that is set forth in the Constitution. It is, of course, inconceivable that Congress can change the Constitution (only the states can), but the conspirators would have us believe that it has done so.</span><br /><span><br />The Constitution, which was written in the aftermath of the unhappy colonial experience with British soldiers who executed general warrants upon the colonists, forbids that practice</span><span> </span><span id="OBJ_PREFIX_DWT192_com_zimbra_date" class="Object">today</span><span>. That practice consists of judges authorizing government agents to search for whatever they want, wherever they wish to look. By requiring a warrant from a judge based on probable cause of criminal behavior on the part of the very person the government is investigating, however, and by requiring judges to describe particularly in the warrants they issue the places to be searched or the persons or things to be seized, the Constitution specifically outlaws general warrants.</span><br /><span><br />This is more than just a constitutional violation; it is a violation of the natural right to be left alone. When that right is violated, when all of our private movements are monitored by the government, the menu of our free choices is reduced, as we surely alter our private behavior to compensate for being watched. And just as surely, the government expands its surveillance, knowing that it is not being watched.</span><br /><span><br />As a result of these revelations, no one has been fired, except Snowden, and the conspiracy has grown. Earlier this week, The Washington Post reported that the Federal Bureau of Investigation is now spying on us. It seems that the FBI, no doubt jealous of the unpunished lawlessness of the NSA, has acquired software that permits it to utilize the tiny cameras in many home computers to observe whoever or whatever may be in front of the computer screen. The FBI doesn't only look at whoever is using the computer screen; it also captures the words and images on the screen. It seems to have an affinity for monitoring online gaming, even the lawful variety.</span><br /><span><br />In 1949, when George Orwell predicted in his terrifying novel "1984" the future use of television sets to watch us in our homes, many thought he was a delusional paranoid. It turns out that he was just off by a generation. His predictions have come to pass.</span><br /><span><br />Like many growing conspiracies, this one has spawned others. The Washington Post also reported this week that local cops, too, are jealous of the NSA and its ability to break the law with impunity. In an effort to catch bad guys, local police in half a dozen American cities have begun to ask local telecom providers for a "tower dump." A tower dump consists of digital recordings of all cellphone usage from a given cell tower.</span><br /><span><br />When some telecoms balked at these requests, the cops went to judges, some of whom unlawfully authorized these dumps and some of whom declined. Frustrated that the NSA seems to get whatever it wants, some local police have used their own technology to spy. They've purchased a $400,000 device that mimics cellphone towers, drawing cellphone signals to it and enabling the cops to capture telephone calls without the cooperation of telecoms or permission from federal judges. That's called hacking; it is a federal crime and in most areas a state crime, as well.</span><br /><span><br />The assaults on personal freedom never seem to end. The very concept of violating the rights of many in order to catch a few -- a practice perfected by tyrannical regimes -- has been prohibited for 222 years by the same Constitution that the perpetrators of these practices and the conspirators in these schemes have sworn to uphold.</span><br /><span><br />Sometimes, dissents in Supreme Court decisions articulate American values better than majority opinions do. Here is one from Justice Louis Brandeis that did: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men."</span><span><br />If we permit the government to destroy that right, we will live under tyrannies similar to the ones we thought we defeated.</span></p>Judge Andrew Napolltano2013-12-13T18:08:00ZThe Pope and Basic EconomicsJudge Andrew Napolltanohttp://www.BillOReilly.com/b/The-Pope-and-Basic-Economics/661466098021890835.html2013-12-06T19:03:00Z2013-12-06T19:03:00Z<p><span>What is the worst problem in the world</span><span> </span><span id="OBJ_PREFIX_DWT133_com_zimbra_date" class="Object">today</span><span>? Might it be war, starvation, genocide, sectarian violence, murder, slaughter of babies in the womb? Any of these would be a rational answer. But when Pope Francis was asked this question recently, he replied, "Youth unemployment."</span><br /><span><br />To be sure, youth unemployment is a serious problem. In some parts of the United States, the richest country in the world, it has reached 25 percent. These are people who are no longer in school full time and are not yet 30 years of age. It is a problem for them and their families, for their communities, and for the welfare states that are supporting them. But is it the worst problem in the world? Is it a problem for the Roman Catholic Church? And is it something the Pope is competent to comment upon or to resolve?</span><br /><span><br />The Pope's youth unemployment comments recently were removed from the Vatican's website. No sooner had that been done than the Holy Father issued his first encyclical: a formal papal teaching, as opposed to his now famous impromptu back-of-the-plane yet on-the-record comments.</span><br /><span><br />His encyclical is about economics, and it reveals a disturbing ignorance. I say this with deference and respect. I also say this as a traditionalist Roman Catholic who laments the post-Vatican II watering down of sacred traditions, lessening of moral teaching and trivialization of liturgical practices. But I also say this as a firm believer that Pope Francis is the Vicar of Christ on Earth and, as such, personifies the teaching authority of the Church. He is morally and juridically capable of speaking ex cathedra -- that is, infallibly -- but only after surveying and distilling traditional Church teachings and only on matters affecting faith and morals.</span><br /><span><br />Thank God, so to speak, that his teaching authority is limited to faith and morals, because in matters of economics, he is wide of the mark.</span><br /><span><br />His encyclical, entitled "Joy of the Gospel," attacks free market capitalism because it takes too long for the poor to get rich. "They are still waiting," the Pope wrote. Well, without capitalism, which rewards hard work and sacrifice, they will wait forever. No economic system in history has alleviated more poverty, generated more opportunity and had more formerly poor people become rich than capitalism. And the essence of capitalism goes to the core of Catholic teaching: the personal freedom of every person. Capitalism is freedom to risk, freedom to work, freedom to save, freedom to retain the fruits of one's labors, freedom to own property and freedom to give to charity.</span><br /><span><br />The problem with modern capitalism -- a problem that escaped the scrutiny of His Holiness -- is not too much freedom, but too little. The regulation of free markets by governments, the control of the private means of production by government bureaucrats, and the unholy alliances between governments, banks and industry have raised production costs, stifled competition, established barriers to entry into markets, raised taxes, devalued savings and priced many poor out of the labor force. The Pope would do well to pray for those who have used government to steal freedom so as to satisfy their lust for power, and for those who have bowed to government so as to become rich from governmental benefits and not by the fruits of their own labors.</span><br /><span><br />Traditional Catholic social teaching imposes on all of us a moral obligation to become our brothers' keepers. But this is a personal moral obligation, enforced by conscience and Church teaching and the fires of Hell -- not by the coercive powers of the government. Charity comes from the heart. It consists of freely giving away one's wealth. It is impossible to be charitable with someone else's money. That's theft, not charity.</span><br /><span><br />If you give until it hurts, freely and out of love, and seek nothing temporal in return, you have built up treasure in Heaven. But if the government takes from you and redistributes your wealth to those whom the government has decided to benefit -- rich and poor alike -- what merit is there in that for you? If you give a poor person a fish to eat, in a day, he'll be hungry. If you show him how to catch fish and teach him how to acquire the tools needed to do so, he can become self-sufficient and perhaps one day rich enough to help others. If the government takes money from you to buy the person a fish, half of the money will be wasted.</span><br /><span><br />The Pope seems to prefer common ownership of the means of production, which is Marxist, or private ownership and government control, which is fascist, or government ownership and government control, which is socialist. All of those failed systems lead to ashes, not wealth. Pope Francis must know this. He must also know that when Europe was in turmoil in 1931, his predecessor Pius XI wrote in one of his encyclicals: "(N)o one can be at the same time a sincere Catholic and a true Socialist."</span><br /><span><br />The Church does not teach just for</span><span> </span><span id="OBJ_PREFIX_DWT135_com_zimbra_date" class="Object">today</span><span>, but for the life of man on Earth. That's why the essence of the Papacy is not contemporary problem solving, but preservation of truth and continuity of tradition. For this reason, Popes do not lightly contradict their predecessors. If it was sacred then, it is sacred now.</span><br /><span><br />Timothy Cardinal Dolan, the Archbishop of New York, recently discovered serious structural problems with St. Patrick's Cathedral that will cost $200 million to repair. He will soon have that bill paid. Where did that money come from? It came from the disposable income of rich Catholic capitalists. Who will benefit from this? The blue-collar workers whom the restoration project is employing now have jobs, and everyone -- rich and poor -- who attends Mass at the refurbished St. Patrick's will do so in comfort and beauty.</span><br /><span><br />What shall we do about the Pope and economics? We should pray for his faith and understanding and for a return to orthodoxy. That means Holy Mother Church under the Vicar of Christ -- saving souls, not pocketbooks.</span></p>Judge Andrew Napolltano2013-12-06T19:03:00ZWhat if Thanksgiving Exposes the Government?Judge Andrew Napolltanohttp://www.BillOReilly.com/b/What-if-Thanksgiving-Exposes-the-Government/-937799734426345471.html2013-11-28T22:25:00Z2013-11-28T22:25:00Z<p><span>What if another</span><span> </span><span id="OBJ_PREFIX_DWT271_com_zimbra_date" class="Object">Thanksgiving</span><span> </span><span>Day is upon us and because of the government we have less to be thankful for than we did at the last one? What if at every</span><span> </span><span id="OBJ_PREFIX_DWT272_com_zimbra_date" class="Object">Thanksgiving</span><span> </span><span>liberty is weakened and the government is strengthened? What if</span><span> </span><span id="OBJ_PREFIX_DWT273_com_zimbra_date" class="Object">Thanksgiving</span><span>'s warm and breezy seduction of gratitude is just the government's way of inducing us to think we should be grateful for it?</span><span> </span><br /><span><br />What if we don't owe the government any thanks for anything? What if the government owes us back all the freedom and property it has stolen from us? What if the government has produced nothing and owns nothing, save what it has coerced us to give it? What if the courts have ruled that the government can lie and cheat with impunity in order to acquire our property or assault our freedoms?</span><br /><span><br />What if the government lies and cheats regularly to enhance its own wealth and power? What if the government claims that its power comes from the consent of the governed? What if no one consented to the government's spying and lying except those who personally and directly benefit from it?</span><br /><span><br />What if the government is afraid to tell us all it is doing to us for fear we might vote it out of office? What if that vote would change nothing? What if the spying and lying continued no matter who ran the government? What if those who spy and lie don't lose their jobs no matter how they lie or upon whom they spy or who gets elected?</span><br /><span><br />What if this holiday of turkey and football and family is the modern-day version of bread and circuses? What if bread and circuses -- which Roman emperors gave to the mobs to keep them sated -- _are just the government's way</span><span> </span><span id="OBJ_PREFIX_DWT277_com_zimbra_date" class="Object">today</span><span> </span><span>of keeping us _sated at the end of every November? What if the government expects us to give thanks to it for letting us have</span><span> </span><span id="OBJ_PREFIX_DWT280_com_zimbra_date" class="Object">Thanksgiving</span><span>Day and Black</span><span> </span><span id="OBJ_PREFIX_DWT278_com_zimbra_date" class="Object">Friday</span><span> </span><span>off?</span><br /><span><br />What if the president thinks he's a king? What if he claims the power to kill people outside the Constitution? What if some of these people were your sisters or neighbors or friends? What if he thinks he's so smart that he knows what choices we should make? What if he makes those choices for us?</span><br /><span><br />What if we each have the natural right to choose how to care for our own bodies, but he has used the coercive powers of the law to tell us how to do so? What if that law compelled all persons to pay for more health insurance than they needed or wanted or could afford? What if the president deceived dupes in Congress into voting for that law? What if the president deceived millions of Americans into supporting that law? What if the president forced you to pay for a health insurance policy that funded killing babies in their mothers' wombs?</span><br /><span><br />What if the president knows what you want and need because his spies have captured your every telephone call, text and email? What if the Declaration of Independence says that our rights are personal, inalienable and come from God? What if the Constitution says that among our inalienable rights are the right to be left alone and the right to be different?</span><br /><span><br />What if the president took an oath to uphold the Declaration and the Constitution but believes in neither? What if he believes that our rights come from the collective consent of our neighbors, whom he can influence, or, worse yet, from the government, which he can control? What if he believes that he can invade our right to be left alone by spying on us and lying to us and destroy our right to be different by killing us? What if he actually did all these things?</span><br /><span><br />What if only individuals foolish enough to do so give up their own rights but cannot give up the rights of those of us who refuse to surrender them? What if the government can only constitutionally take away personal freedoms when a jury has convicted someone of a crime? What if the government thinks it can take our rights away by ordinary legislation or by presidential fiat? What if it has done so?</span><br /><span><br />What if someone who once worked for the government knew all this and risked life and limb to tell us about it? What if the government at first denied that it lies to and spies upon all Americans? What if it demonized the whistle blower? What if it chased him to the ends of the Earth because he revealed awful truths? What if everything Edward Snowden revealed about the government turned out to be true?</span><br /><span><br />What if it is the personal courage and constitutional fidelity of Edward Snowden for which we should be thankful? What if the government hates and fears our freedoms just as it hates and fears the revelation of the awful truths Snowden possesses?</span><br /><span><br />What if our thanks are due primarily to the Author of our freedoms, who made us in His image and likeness, and to those who have exercised those freedoms to seek and reveal the truth? What if it is the truth, and not the government, that will keep us free?</span><br /><span><br />What if we have the right to pursue happiness no matter what the government says? What if we have the right to be unique no matter what the government wants? What if the freedom to seek the truth will bring us happiness?</span><br /><span><br />What if that freedom which is still ours is a just cause for a happy</span><span> </span><span id="OBJ_PREFIX_DWT283_com_zimbra_date" class="Object">Thanksgiving</span><span>, after all?</span><span> </span></p>Judge Andrew Napolltano2013-11-28T22:25:00ZThe Shutdown and the RolloutJudge Andrew Napolltanohttp://www.BillOReilly.com/b/The-Shutdown-and-the-Rollout/-200900861641033830.html2013-11-21T17:45:00Z2013-11-21T17:45:00Z<p><span>Here is a quick pop quiz. Which presented more harm to human life and personal freedom: the four-week partial shutdown of the federal government last month or the rollout of Obamacare this month?</span><br /><span><br />Obamacare is the greatest single expansion of federal regulatory authority in American history. In one stroke, it puts 16 percent of American economic activity -- virtually all of health care and health insurance -- under the thumb of federal bureaucrats. It dictates the minimum insurance coverage that everyone in the United States must have.</span><br /><span><br />It punishes severely, without a hearing, anyone who deviates below the prescribed minimum. It forces nearly all Americans to acquire coverage in a one-size-fits-all policy, including coverage for events that cannot occur.</span><br /><span><br />Obamacare was passed by both houses of Congress with support from Democrats only, using parliamentary tricks, rather than straight up or down votes. And all the Democrats voted for it after President Obama promised them and the American people <em>ad nauseam</em> that if they like their current doctor and if they like their current health insurance, they would be able to keep them under Obamacare.</span><br /><span><br />The law was found constitutional by the Supreme Court only after the chief justice -- who acknowledged in his opinion in the case that Congress lacks the authority to compel people to engage in interstate commerce by forcing them to purchase a good they don't want -- changed his mind on the ultimate outcome of the challenge. In order to save the law from imminent constitutional extinction, he created a novel legal theory, and he persuaded the four progressives on the court to join him.</span><br /><span><br />They ruled that the punishment for the failure to obtain the level of health care coverage that the law requires is actually a tax. Then the court ruled that because Congress can constitutionally tax any event, it can tax nonevents (like the failure to purchase health insurance), and so the entire scheme is constitutional because it is really just a tax law.</span><br /><span><br />The Supreme Court, lawyers sometimes say, is infallible because it is final; it is not final because it is infallible. I am a student of the court, and I revere it. It can change the laws of the land, but it can't change the laws of economics. And so, when Obamacare ordered all insurance carriers in the land to cease offering health care plans that provide insurance coverage below the federally mandated minimum, they naturally began to cancel those plans. And when the new health care exchanges that Obamacare established failed to find coverage for those formerly insured by the substandard plans, those who had these plans and liked them suddenly were told that on</span><span> </span><span id="OBJ_PREFIX_DWT853_com_zimbra_date" class="Object">Jan. 1, 2014</span><span>, when Obamacare becomes effective, they will have no health insurance. The old insurance coverage will be illegal, and there is no new coverage for them.</span><br /><span><br />Why were these substandard plans canceled when the president repeatedly promised that they could be kept? Didn't the president know that he was not being truthful when he signed a bill into law that mandated minimum coverage, yet promised that plans that failed to meet that minimum coverage could survive the law? How is it that emails from the West Wing to the White House and legal briefs filed by the Department of Justice defending Obamacare in various federal courts acknowledged that millions would lose the doctors and the coverage that they liked?</span><br /><span><br />One of the reasons many Americans had their policies canceled this month is the failure of those policies to conform to the new federal minimum requirements. At the heart and soul of Obamacare is the power of bureaucrats to tell everyone what coverage to have. At the core of Obamacare is the removal of individual choice from the decision to purchase health care coverage. The goal of Obamacare is high-end coverage for everyone -- brought about by Soviet-style central planning, not in response to free market forces.<br /><br /></span><span>From the perspective of the central planners who concocted Obamacare, minimum insurance coverage is the <em>sine qua non</em> of the statute. They want you to pay for coverage you will not need or ever use, so that the insurance carriers will have extra cash on hand to fund coverage for those who cannot afford high-end policies. This is where the laws of economics enter. By forcing all carriers to offer only high-end policies, the statute forced the carriers to raise their rates. By raising rates, the substandard policies -- with their lower rates -- could no longer be offered. If the government forced everyone to buy a Mercedes, when most are perfectly happy with an Acura, soon the Acuras would disappear from the market and most of us would be walking to work.</span><br /><span><br />Now back to our pop quiz. When Congress was unable to agree on a budget for this present fiscal year because tea party Republicans saw this mess coming and wanted to dull its sting and congressional Democrats refused to negotiate with them, the federal government partially shut down. The Democrats and the mainstream media went wild. They claimed the government would default on its obligations and millions would suffer without the conveniences normally offered by the federal government. Yet, the only inconvenience we really heard about was the inability of a few hundred folks to visit federal parks and monuments. All federal services -- defense, the courts, the airports, the TSA (ugh), customs, and meat inspectors -- continued to operate as before the shutdown.</span><br /><span><br />Yet, when Obamacare was rolled out earlier this month, more than 5,500,000 innocent Americans lost their health insurance, and the president knew of this in advance and lied about it repeatedly, and caused it with the one-size-fits-all mentality of his signature piece of legislation. Last week he caved and said that folks who have the old substandard policies could keep them for another year. This was too little and too late. He can no more change federal law than he can change the laws of economics. And he knows that.</span><br /><span><br />In modern times, we have endured great lies told in the White House. One great lie was about a third-rate burglary, and it ended in a presidential resignation. Another great lie was about a private sexual affair, and it ended in a presidential impeachment. The present great lies are about the health and freedom of 5,500,000 Americans. How will this mess end?</span></p>Judge Andrew Napolltano2013-11-21T17:45:00ZFreedom and FederalismJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Freedom-and-Federalism/939972665435923786.html2013-11-14T17:34:00Z2013-11-14T17:34:00Z<p><span>One of the bedrocks of our governmental infrastructure is federalism. This</span><br /><span>is the constitutional recognition of the legal origins of the United States</span><br /><span>as a union of independent states. America started, of course, with 13</span><br /><span>colonies, which became 13 states, and gradually added 37 additional states.</span><br /><span><br />Though the federal government is a behemoth</span><span> </span><span id="OBJ_PREFIX_DWT461_com_zimbra_date" class="Object">today</span><span>, it was created when each</span><br /><span>of those states ceded some of their sovereignty to the federal government.</span><br /><span>They did this in writing. The writing is the Constitution, and it explicitly</span><br /><span>states that the governmental powers not ceded are retained by the states.</span><br /><span><br />President Reagan reminded us of the origins of the country in his first</span><br /><span>inaugural address when he stated, "All of us need to be reminded that the</span><br /><span>federal government did not create the states; the states created the federal</span><br /><span>government." He also said that the beauty of the retention of powers by the</span><br /><span>states is that they are likely to exercise those powers differently and</span><br /><span>become laboratories of democracy -- hence, Reagan's famous quip that one of</span><br /><span>the benefits of living in the U.S. is federalism, because "you can vote with</span><br /><span>your feet."</span><br /><span><br />So, if you don't like the over-regulated Massachusetts, you can move to New</span><br /><span>Hampshire, and if you don't like the over-taxed New Jersey, you can move to</span><br /><span>Pennsylvania. This is easier said than done, but the principle subsists, and</span><br /><span>as long as we have not surrendered the freedom to travel, we can still move</span><br /><span>to more freedom-friendly states.</span><br /><span><br />This is not an academic theory; it has real-world consequences for my Fox</span><br /><span>News colleague Jana Winter. Jana is an investigative reporter for</span><br /><span>foxnews.com. Like all good folks on her end of journalism, Jana has</span><br /><span>developed sources. In the course of investigating the </span><span id="OBJ_PREFIX_DWT463_com_zimbra_date" class="Object">July 20, 2012</span><span>,</span><br /><span>slaughter in a movie theater in Aurora, Colo., Jana learned from sources to</span><br /><span>whom she promised confidentiality that the alleged murderer, James Holmes,</span><br /><span>sent a notebook to his treating psychiatrist at the University of Colorado,</span><br /><span>a state-owned school. This information was earth-shattering for the Holmes</span><br /><span>case because it triggered the argument that a government psychiatrist ought</span><br /><span>to have known of Holmes' violent ideations a week before he allegedly</span><br /><span>carried them out in a movie theater.</span><br /><span><br />At the time Jana learned and reported about the Holmes notebook, all</span><br /><span>witnesses in the Holmes case were under a court order not to speak with</span><br /><span>anyone, least of all reporters. When Holmes' lawyers learned that Jana</span><br /><span>reported on the notebook, they subpoenaed her notes, and lawyers for Fox</span><br /><span>moved to quash the subpoena. Fox's lawyers argued that her sources were</span><br /><span>protected by a Colorado shield law. That law compels lawyers who are seeking</span><br /><span>the names of reporters' confidential sources to seek them elsewhere before</span><br /><span>approaching the reporter. That law also permits the incarceration of</span><br /><span>reporters who decline to obey any court order compelling the production of</span><br /><span>the names of their sources.<br /></span><br /><span>Holmes' lawyers apparently want the names of Jana's sources because they</span><br /><span>believe them to be law enforcement personnel who violated the gag order.</span><br /><span>Criminal defense lawyers can have a field day on cross examination of cops</span><br /><span>when they have caught the cops breaking a law they have sworn to uphold. On</span><br /><span>the other hand, the press, which is the eyes and ears of individuals, a role</span><br /><span>it enjoys under the First Amendment as interpreted by numerous Supreme Court</span><br /><span>cases, would be fruitless if reporters could not promise confidentiality to</span><br /><span>sources. This goes back to the Pentagon Papers case in which the Supreme</span><br /><span>Court held that matters of material public interest in the hands of</span><br /><span>reporters -- no matter how acquired -- may "freely" be published. Freely</span><br /><span>means free from government retribution.</span><br /><span><br />Here is where federalism enters the picture. Jana lives and works in New</span><br /><span>York. She was ordered by a state judge in Colorado to reveal her sources and</span><br /><span>threatened with incarceration. New York law does not permit incarceration</span><br /><span>for failure to reveal sources. So, Fox's legal team filed an application in</span><br /><span>a New York state court to block the order of the Colorado state judge. That</span><br /><span>application was denied by a trial judge, and that denial was upheld by an</span><br /><span>appeals panel by a 3-to-2 vote, and earlier this week, the case was argued</span><br /><span>before New York's highest state court, the Court of Appeals.</span><br /><span><br />This should be a no-brainer. Jana voted with her feet and chose to live and</span><br /><span>work in the most First Amendment-friendly state in the union. She should be</span><br /><span>protected by New York law. If she is not, then all reporters will lose their</span><br /><span>confidential sources, and all Americans will be in the dark when</span><br /><span>whistleblowers know awful truths but are unwilling to pay the price of</span><br /><span>public revelation.</span><br /><span><br />In this era of the Internet, all information is available everywhere all</span><br /><span>the time. Just because the information in the Holmes case was about an event</span><br /><span>in Colorado does not mean that Colorado law should control the fate of a New</span><br /><span>York reporter. The controlling factor should be freedom: the freedom of</span><br /><span>sources to reveal truths, the freedom of reporters to publish truths, and</span><br /><span>the freedom of sources and reporters from government retribution.<br /></span><span><br />There is always a common theme in these reporter sources cases, and Jana's</span><br /><span>is no different. Invariably, the awful truth is about a failure of</span><br /><span>government -- in this case a government psychiatrist. The government hates</span><br /><span>and fears the truth. Yet, if the government could control the flow of news,</span><br /><span>it would only tell us what makes it look good, and we would lack the</span><br /><span>knowledge with which to make prudent judgment about its policies. Thomas</span><br /><span>Jefferson once remarked that he'd prefer newspapers without government to</span><br /><span>government without newspapers.</span><br /><span><br />A proper application of federalism could save the values of the First</span><br /><span>Amendment and the freedom of Jana Winter. If not, we face the ancient</span><br /><span>spectacle of a courageous reporter being jailed not for committing a crime,</span><br /><span>but for telling a truth. And the confidential sources will dry up, and the</span><br /><span>whistleblowers will clam up, and the government will control more of our</span><br /><span>lives.</span></p>Judge Andrew Napolltano2013-11-14T17:34:00ZEnd Runs Around the ConstitutionJudge Andrew Napolltanohttp://www.BillOReilly.com/b/End-Runs-Around-the-Constitution/-837426430407992699.html2013-11-07T03:28:00Z2013-11-07T03:28:00Z<p><span>Two weeks ago we learned that the National Security Agency (NSA) has been spying on the chancellor of Germany and on the president of the United States. Last week we learned that it has spied on the Pope and on the conclave that elected him last March. This week we learned that it also has spied on the secretary general of the United Nations and has hacked into the computer servers at Google and Yahoo.</span><br /><span><br />What's going on?</span><br /><span><br />President Obama, who has yet to address these outrages to serious questioners, must know of them, because apparently he has gotten into the habit of wanting to know in advance what is on the minds of those with whom he is scheduled to meet. The New York Times reported recently that it learned from NSA whistleblower Edward Snowden that the NSA happily told Obama what U.N. Secretary-General Ban Ki-Moon was planning to ask him well in advance of when he asked it. The NSA could have learned that only from its surveillance of the secretary general's personal cellphone calls, emails and texts. It seems the NSA is providing this service to its clients, and chief among them is the president.</span><br /><span><br />Also among them are other parts of the government, such as the Department of Justice, the IRS, the FBI and the Department of Homeland Security. This is where we find even more dangers to personal freedom than the constitutional violations and personal privacy outrages visited on all Americans and on foreign officials. The NSA claims it can operate outside the restraints of the Fourth Amendment. The NSA and its congressional apologists have argued that because its task is essentially to gather foreign intelligence for national security purposes only, and because the Fourth Amendment, which requires detailed language in search warrants particularly describing the person or place to be searched and the person or thing to be seized, only restrains the government when it is engaged in criminal prosecutions and not when it is on a fishing expedition for intelligence purposes, the Fourth Amendment does not restrain the NSA.</span><br /><span><br />Yet, the plain language of the Fourth Amendment protects everyone in America from government intrusion in their persons, houses, papers and effects, whether the government is looking for evidence of crimes or of evidence of sophistry. The NSA's argument that the Fourth Amendment only regulates criminal prosecutions is nonsense. It never has seriously been made to or accepted by the Supreme Court, and it defies what we now know about the client list of the NSA. Its clients consist surely of the 15 or so other intelligence agencies in the federal government. But its clients are also the premiere federal agencies that decide whom to prosecute. In order to decide whom to prosecute, these agencies need to examine evidence. And if the evidence they are examining has come through extra-constitutional means, these agencies are destroying the fabric of liberty they have sworn to uphold, which includes the use of only lawfully and constitutionally gathered evidence.</span><br /><span><br />The NSA's own behavior defies its argument that so long as it is not involved in obtaining evidence for criminal prosecutions, it is free to use extra-constitutional means to gather data. The whole purpose of the Fourth Amendment is to prevent the government from going house to house without probable cause until it finds evidence of a crime -- as British soldiers did to the colonists -- and then using that evidence in criminal prosecutions. But if the NSA can go from computer to computer without probable cause until it finds what it wants -- and turn some of that evidence over to law enforcement -- the Constitution's protections effectively have been short-circuited.</span><br /><span><br />Why does the government, which has sworn an oath to uphold the Constitution, find ways to short-circuit it? The answer goes to the nature of government. Even in a free society, government always grows, always expands and always wants to control more human behavior. But government that operates in secrecy, where no one can see it and criticize it, will do whatever it can get away with -- like spy on the Pope, share unconstitutionally acquired evidence with law enforcement or sate the president's curiosity.</span><br /><span><br />As if all of this were not bad enough, we learned just a few days ago that the NSA has hacked into the enormous computer servers of Google and Yahoo. These two companies, which have been coerced into and rewarded for their cooperation with the NSA, have now been betrayed by their spying partners in the government. They must have been gullible enough to believe that all NSA access to their hardware had been by consent or at least by court order and with their knowledge. It is almost inconceivable that any judge of the FISA court ordered <em>hacking</em>, as that is expressly prohibited by federal statute. Hacking is criminal no matter who orders it.</span><br /><span><br />Even some of the president's congressional supporters now acknowledge that the NSA is out of control and destroys more liberty than it protects.</span><br /><span><br />Why would the NSA do all of this? Because in secret it can cut constitutional corners with impunity. And it no doubt believes it is easier to tap into the telephones and computers of all 330 million of us who live in the United States in order to monitor the few dozen among us whom it really wants to watch than to develop probable cause against its true targets as the Framers intended and the Constitution expressly requires. And as well, who knows what teasing cute morsel its agents can deliver to the president before his next Oval Office visitor arrives?</span><br /><span><br />Is this the government the Framers gave us? Is this the government to which we consented? Is this the government most conducive to personal liberty in a free society? The answers are obvious.</span></p>Judge Andrew Napolltano2013-11-07T03:28:00ZSpying on the PresidentJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Spying-on-the-President/-972425823816094615.html2013-11-01T02:26:00Z2013-11-01T02:26:00Z<p><span>When German Chancellor Angela Merkel celebrated the opening of the new U.S. embassy in Berlin in 2008, she could not have imagined that she was blessing the workplace for the largest and most effective gaggle of American spies anywhere outside of the U.S.</span><br /><span><br />It seems straight out of a grade-B movie, but it has been happening for the past eleven years: The NSA has been using Merkel to spy on the president of the United States. We now know that the NSA has been listening to and recording Merkel's cellphone calls since 2002. In 2008, when the new embassy opened, the NSA began using more sophisticated techniques that included not only listening, but also following her. Merkel uses her cellphone more frequently than her landline, and she uses it to communicate with her husband and family members, the leadership of her political party, and her colleagues and officials in the German government.</span><br /><span><br />She also uses her cellphone to speak with foreign leaders, among whom have been President George W. Bush and President Obama. Thus, the NSA -- which Bush and Obama have unlawfully and unconstitutionally authorized to obtain and retain digital copies of all telephone conversations, texts and emails of everyone in the U.S., as well as those of hundreds of millions of persons in Europe and Latin America -- has been listening to the telephone calls of both American presidents whenever they have spoken with the chancellor.</span><br /><span><br />One could understand the NSA's propensity to listen to the conversations of those foreign leaders who wish us ill. And one would expect that it would do so. But the urge to listen to the leadership of our allies serves no discernible intelligence-gathering purpose. Rather, it fuels distrust between our nations and in the case of Merkel exacerbates memories of the all-seeing and all-hearing Stasi, which was the East German version of the KGB that ruled that police state from the end of World War II until it collapsed in 1989. Merkel was raised in East Germany, and she has a personal revulsion at the concept of omnipresent state surveillance.</span><br /><span><br />Obama apparently has no such revulsion. One would think he's not happy that his own spies have been listening to him. One would expect that he would have known of this. Not from me, says Gen. Keith Alexander, the director of the NSA, who disputed claims in the media that he told Obama of the NSA spying network in Germany last summer. Either the president knew of this and has denied it, or he is invincibly ignorant of the forces he has unleashed on us and on himself.</span><br /><span><br />When Susan Rice, Obama's national security advisor, was confronted with all of this by her German counterpart, she first told him the White House would deny it. Then she called him to say that the White House could not deny it, but the president would deny that he personally knew of it.</span><br /><span> <br /></span><span>How did we get here? What are the consequences of a president spying on himself? What does this mean for the rest of us?</span><br /><span><br />Neither Bush nor Obama has had a strong fidelity to the Constitution. They share the views of another odd couple of presidents from opposing political parties, Teddy Roosevelt and Woodrow Wilson, in that the Constitution is not the supreme law of the land as it proclaims to be, but rather a guideline that unleashes the president to do all that it does not expressly forbid him to do. In the progressive era 100 years ago, that presidential attitude brought us the Federal Reserve, the federal income tax, Prohibition, World War I, prosecutions for speech critical of the government and the beginnings of official modern government racial segregation.</span><br /><span><br />That same attitude in our era has brought us the Patriot Act, which allows federal agents to write their own search warrants, government borrowing that knows no end -- including the $2 trillion Bush borrowed for the war in Iraq, a country which is now less stable than before Bush invaded, and the $7 trillion Obama borrowed to redistribute -- and an NSA that monitors all Americans all the time. In the case of the NSA spying, this came about by the secret orders of Bush and Obama, animated by that perverse TR/Wilsonian view of the Constitution and not by a congressional vote after a great national debate.</span><br /><span><br />Just as people change when they know they are being watched, the government changes when it knows no one can watch it. Just as we can never be ourselves when we fear that we may need to justify our most intimate thoughts to an all-knowing government, so, too, the government knows that when we cannot see what it is doing, it can do whatever it wants. And it is in the nature of government to expand, not shrink. Thomas Jefferson correctly predicted that 175 years ago.</span><span> </span><br /><span><br />But spying on yourself is truly asinine and perhaps criminal. You see, the president can officially declassify any secrets he wants, but he cannot -- without official declassification -- simply reveal them to NSA agents. One can only imagine what NSA agents learned from listening to Bush and Obama as they spoke to Merkel and 34 other friendly foreign leaders, as yet unidentified publicly.</span><br /><span><br />Now we know how pervasive this NSA spying is: It not only reaches the Supreme Court, the Pentagon, the CIA, the local police and the cellphones and homes of all Americans; it reaches the Oval Office itself. Yet when the president denies that he knows of this, that denial leads to more questions.</span><br /><span><br />The president claims he can start secret foreign wars using the CIA, secretly kill Americans using drones, and now secretly spy on anyone anywhere using the NSA. Is the president an unwitting dupe to a secret rats' nest of uncontrolled government spies and killers? Or is he a megalomaniacal, totalitarian secret micromanager who lies regularly, consistently and systematically about the role of government in our lives?</span><br /><span><br />Which is worse?</span></p>Judge Andrew Napolltano2013-11-01T02:26:00ZA Government of Secrecy and FearJudge Andrew Napolltanohttp://www.BillOReilly.com/b/A-Government-of-Secrecy-and-Fear/-337773242602947021.html2013-10-24T16:48:00Z2013-10-24T16:48:00Z<p><span>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.</span><br /><span><br />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.</span><br /><span><br />I reject the argument that the government is empowered to take our liberties -- here, the right to privacy -- by majority vote or by secret fiat as part of an involuntary collective bargain that it needs to monitor us in private in order to protect us in public. The government's job is to keep us free and safe. If it keeps us safe but not free, it is not doing its job.</span><br /><span><br />Since the revelations about Verizon, we have learned that the NSA has captured and stored in its Utah computers the emails, texts, telephone conversations, utility bills, bank statements, credit card statements and digital phone books of everyone in America for the past two and a half years. It also has captured hundreds of millions of phone records in Brazil, France, Germany and Mexico -- all U.S. allies -- and it has shared much of the seized raw American data with intelligence agencies in Great Britain and Israel. Its agents have spied on their girlfriends and boyfriends literally thousands of times, and they have combed the collected raw data and selectively revealed some of it to law enforcement. All of this directly contradicts the Constitution.</span><br /><span><br />And, if all of this is not enough to induce one to realize that the Orwellian future is here thanks to the secret governments of George W. Bush and Barack Obama, Snowden also revealed that the NSA can hack into anyone's mobile phone, <em>even when it is turned off</em>, and use each phone as a listening device and as a GPS to track whoever possesses it.</span><br /><span><br />When Gen. Keith Alexander, the head of the NSA, was confronted with this litany of unlawful and unconstitutional behavior, he replied by claiming that his spies have saved the U.S. from 54 terrorist plots. He pleaded with lawmakers not to strip him of the power to spy or of the billions they have given him to spend on spying, lest another 9/11 plot befall us.</span><br /><span><br />Many Americans were willing to make this trade: spy on 330,000,000 Americans in order to stop 54 plots. But the government lacks the moral and constitutional power to compel this trade, because the right to privacy is a personal, individual and inalienable right, and so it cannot lawfully be taken away by majority vote (which never happened) or by secret fiat (which did happen). The government also lacks the authority to spy without legal constraint on anyone it wishes, because that violates the Constitution and fundamentally changes our open and free society. All-hearing ears and all-seeing eyes and unconstrained power exercised in secret are a toxic mix destined to destroy personal freedom.</span><br /><span><br />Now we know that Alexander has lied yet again to a congressional committee. He recently acknowledged that the number of plots foiled is not the stated-under-oath 54, but is either two or three. He won't say which two or three or how spying on every American was the only lawful or constitutional way to uncover these plots. He also won't say why he originally said 54, instead of two or three; but he did say last week that he will retire next spring.</span><br /><span><br />This is maddening. The government breaks the law it has been hired to enforce and violates the Constitution its agents have sworn to uphold; it gets caught and lies about it; and no one in government is punished or changes his behavior.</span><br /><span><br />Then we realize that the so-called court that authorized all of this is not a court at all. Federal judges may only exercise the judicial function when they are addressing cases or controversies; and their opinions only have the force of law when they emanate from that context. But when federal judges serve an essentially clerical function, they are not serving as judges, their opinions are self-serving and legally useless, and their apparent imprimatur upon spying gives it no moral or legal legitimacy.</span><br /><span><br />All of this -- which is essentially undisputed -- leads me to the question: Where is the outrage? I think the government has succeeded in so terrifying us at the prospect of another 9/11 that we are afraid to be outraged at the government when it claims to be protecting us, no matter what it does. C.S. Lewis once remarked that the greatest trick the devil has pulled off is convincing us that he does not exist. The government's greatest trick has been persuading us to surrender our freedoms.</span><br /><span><br />Will we ever get them back? The answer to that depends upon the fidelity to freedom of those in whose hands we have reposed the Constitution for safekeeping. At present, those hands are soiled with the filth of totalitarianism and preoccupied with the grasp of power. And they seem to be getting dirtier and their grip tighter every day.</span></p>Judge Andrew Napolltano2013-10-24T16:48:00ZJudge Nap's Latest Column: Debt and DestructionJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Debt-and-Destruction/-29539198462338844.html2013-10-18T17:53:00Z2013-10-18T17:53:00Z<p>From <span id="OBJ_PREFIX_DWT276_com_zimbra_date" class="Object">April 1917</span> to <span id="OBJ_PREFIX_DWT277_com_zimbra_date" class="Object">November 1919</span>, 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.<br /><span><br />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.</span><br /><span><br />This is not an academic difference. Wilson knew his creditors could not seize government buildings if he or a successor could not repay the loans in a timely manner. But the IRS could seize private wealth if taxpayers didn't cough up. At the time, the federal income tax was new. In order to get it passed in Congress, Wilson promised that the tax rate on personal incomes would never exceed 3 percent of adjusted gross income, and that it would only be assessed on adjusted gross incomes north of $10,000 a year -- the rough equivalent of $250,000</span><span> </span><span id="OBJ_PREFIX_DWT280_com_zimbra_date" class="Object">today</span><span>.</span><br /><span><br />Wilson also had a brand-new bank with its own legal printing press at his disposal: the Federal Reserve. With its power, the Federal Reserve could print and lend all the cash it wanted, flood the economy with money, and cheapen the value of the dollar so that when Wilson's $30 billion debt was repaid, it would be done with dollars worth far less -- and thus less painful to extract from taxpayers -- than those he borrowed.</span><br /><span><br />This is, of course, government-induced inflation. It was relatively new in Wilson's era, but it has been practiced by the Fed and accepted by every president from Wilson to Barack Obama. And it can be done without the consent of Congress because Congress already gave the Fed the unlimited power to print cash and lend it.</span><span> </span><span id="OBJ_PREFIX_DWT282_com_zimbra_date" class="Object">Today</span><span>, this is done without ink and paper; rather, by pressing a few computer keys.</span><br /><span><br />So</span><span> </span><span id="OBJ_PREFIX_DWT284_com_zimbra_date" class="Object">today</span><span>, when the president wants to borrow more than the law allows, the Fed can provide the cash, but the president needs a change in the law so as to have the legal authority to commit as yet unborn taxpayers to repay the government's additional debt. While in office, Obama has borrowed about $1.2 trillion a year with the approval of Republicans as well as Democrats in Congress. The lenders are quick to make their loans, because the feds have never failed to extract the cash from taxpayers or borrow more in their names to pay the debt service. Presidents and Congresses don't worry about paying back the principal or paying the debt service, as long as they can continue to borrow more in order to do so.</span><br /><span><br />As absurd as it sounds, <em>the federal government borrows money in order to pay the debt service on money it has already borrowed and spent.</em> Is it any wonder that</span><span> </span><span id="OBJ_PREFIX_DWT286_com_zimbra_date" class="Object">today</span><span> </span><span>the government's debt has reached $17 trillion?</span><span> <br /></span><br /><span>In his zeal to persuade Congress to let the government borrow another trillion dollars in the next nine months, Obama has stated that raising the debt ceiling will not add to the nation's debt. He is either willfully ignorant or Clintonesque in his use of misleading words. He knows the feds never have declined to borrow whatever they want, whenever they want it, up to the limit of their legal borrowing authority. And they have done so with their eyes on only immediate political needs, with disdain for the economic consequences and with contempt for the future.</span><br /><span><br />But the future cannot sustain this much longer. The half-trillion dollars a year the feds now pay in debt service on present and ancient debt is equivalent to one-fifth of all the yearly revenue collected in taxes. And the $1.2 trillion the feds borrow and spend each year is the equivalent of half of all the yearly revenue collected in taxes. If the mindset of borrow and spend and damn the future persists, American society as we know it will collapse as taxpayers reach the tipping point beyond which it will no longer make sense to earn income.</span><br /><span><br />Do you think this sounds apocalyptic? Think again. Nearly half of the taxpayers in America are there already. Why should they work, they no doubt reason, when the feds will continue to tax and borrow and transfer wealth to them.</span><br /><span><br />The president and all congressional Democrats and most Senate Republicans and about half of the House Republicans want to continue this descent into an economic maelstrom, and they have demonized those brave House and Senate Republicans who have had enough of it. Many courageous congressional Republicans understand the harm the feds have done to the dollar, believe the government must stay within the confines of the Constitution and recognize that borrowing money in order to pay the interest on money already borrowed will lead to perdition -- and they are resisting it.</span><br /><span><br />Obama says they are holding the Treasury hostage and demanding a ransom. He is wrong again. They are defending the dollar and the Constitution. He is saddling future generations with debt they will not be able to afford. He will turn the IRS into debt collectors for the Chinese government, which is the federal government's largest foreign creditor. The courageous House and Senate Republicans are standing athwart the progressive tidal wave and saying: STOP. I expect they will stand firm. When they do, they will be history's heroes.</span><br /><span><br />As for Obama, I suspect he doesn't realize that since the principal of Wilson's $30 billion loan has yet to be repaid, the Treasury is still paying interest on it. Do you know anyone who consented to that?</span></p>Judge Andrew Napolltano2013-10-18T17:53:00ZJudge Nap's Latest Column: Before You RejoiceJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Before-You-Rejoice/357331752218693516.html2013-10-10T21:11:00Z2013-10-10T21:11:00Z<p>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.<br /><br /> 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.<br /><br /> Obama apologists have praised this maneuver as a bloodless way to obtain justice without using drones to kill. (How low we have sunk when Obama can be praised for not executing someone with a drone.) Secretary of State John Kerry, acknowledging that al-Libi is innocent until proved guilty, has claimed that the rule of law was followed here because he will be brought to a civilian U.S. court for trial. Former George W. Bush administration Attorney General Michael Mukasey claimed that because the embassy bombings constituted an act of war, the kidnapping of al-Libi was a lawful wartime assault, and he should be tried before a military tribunal.<br /><br /> It borders on the ridiculous for Kerry to profess fidelity to the rule of law when this criminal gambit was anything but. Fact: We are not at war with Libya. Fact: We cannot lawfully -- under international law, American law or Libyan law -- engage in law enforcement or offensive operations in Libya without the express consent of the local and national authorities. Fact: As a defendant in federal court in the Second Circuit, al-Libi must be brought to a federal judge in New York City within 48 hours of his arrest.<br /><br /> Don't hold your breath waiting for him in lower Manhattan, as the feds will "debrief" al-Libi aboard ship before turning him over to federal prosecutors for trial. One can only imagine what that debriefing will be like. It will no doubt consist of torture. That's why the interrogation is being conducted on the high seas, where the government will claim it is free to disobey any federal law. And that's why the Geneva Conventions prohibit housing prisoners of war aboard ship.<br /><br /> What kind of government seeks venues in which it can break the law? One that has forgotten that every time Bush made his extra-territorial argument to the Supreme Court, it was rejected. Wherever the American government goes and whatever it does, it remains subject to the confines of the Constitution.<br /> Not to worry, administration sources claim, the FBI won't learn of whatever beans al-Libi spills while the CIA is simulating his drowning. Wrong again. While no federal court will admit evidence obtained under torture, the Patriot Act -- that monstrosity that permits federal agents to write their own search warrants and FISA court judges to evade the Constitution -- requires intelligence interrogators and law enforcement interrogators to share information -- even the results of torture. So much for the presumption of innocence, the right to a lawyer, the right to remain silent, the right to be brought before a judge, and the rule of law.<br /><br /> The U.S. is a signatory to treaties that prohibit kidnapping, no matter the governmental need for the victim. Just ask Robert Seldon Lady, the former CIA station chief in Milan who was convicted in absentia a few years ago in Italy of kidnapping a Muslim imam there, and then was arrested on an international warrant in Panama this summer. And President George W. Bush himself and others were convicted in absentia of war crimes by a court in Malaysia last year. Can you imagine the outcry if Bush or Lady were kidnapped off of American streets by foreign agents? How can it be lawful for the U.S. government to kidnap innocent foreigners but not for foreign agents to kidnap guilty Americans?<br /><br /> While much of the above was going on in secret, two public spectacles played out on American TV last week. One involved a gang of bikers in New York City who chased a family in a Range Rover at high speeds and eventually pulled the driver from his car and beat and kicked him. Eventually the cops caught the gang, but not all gang members will be prosecuted, as at least three of them are cops -- and they did nothing to stop the assault.<br /><br /> Also last week, a deranged single mom rammed her car into a fence that surrounds the White House. Then she sped toward Capitol Hill, a few blocks away. Instead of using any one of a number of non-lethal procedures to stop her, dozens of police gave chase and fired military-grade weapons wildly at her, hitting one of their own. After containing the car, the cops slaughtered her in a hail of bullets. Then the cops discovered that she was unarmed and had her 1-year-old baby with her.<br /><br /> What's going on here? <br /><br /> What's going on is the flow of government lawlessness down from the feds to the cops in the streets. Like children observing and imitating their parents' unsanctioned, inappropriate, yet repeated behavior, when cops see the use of the military today to pull off government crimes, to shortcut the law and to evade the Constitution, they arm themselves with military-grade hardware and do the same.<br /><br /> In America today, to paraphrase Voltaire, criminals are punished for their crimes, except when they commit them to the sounds of official rejoicing.</p>Judge Andrew Napolltano2013-10-10T21:11:00ZJudge Nap's Latest Column: Before You RejoiceJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Before-You-Rejoice/-892818920519783229.html2013-10-10T21:11:00Z2013-10-10T21:11:00Z<p>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.<br /><br /> 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.<br /><br /> Obama apologists have praised this maneuver as a bloodless way to obtain justice without using drones to kill. (How low we have sunk when Obama can be praised for not executing someone with a drone.) Secretary of State John Kerry, acknowledging that al-Libi is innocent until proved guilty, has claimed that the rule of law was followed here because he will be brought to a civilian U.S. court for trial. Former George W. Bush administration Attorney General Michael Mukasey claimed that because the embassy bombings constituted an act of war, the kidnapping of al-Libi was a lawful wartime assault, and he should be tried before a military tribunal.<br /><br /> It borders on the ridiculous for Kerry to profess fidelity to the rule of law when this criminal gambit was anything but. Fact: We are not at war with Libya. Fact: We cannot lawfully -- under international law, American law or Libyan law -- engage in law enforcement or offensive operations in Libya without the express consent of the local and national authorities. Fact: As a defendant in federal court in the Second Circuit, al-Libi must be brought to a federal judge in New York City within 48 hours of his arrest.<br /><br /> Don't hold your breath waiting for him in lower Manhattan, as the feds will "debrief" al-Libi aboard ship before turning him over to federal prosecutors for trial. One can only imagine what that debriefing will be like. It will no doubt consist of torture. That's why the interrogation is being conducted on the high seas, where the government will claim it is free to disobey any federal law. And that's why the Geneva Conventions prohibit housing prisoners of war aboard ship.<br /><br /> What kind of government seeks venues in which it can break the law? One that has forgotten that every time Bush made his extra-territorial argument to the Supreme Court, it was rejected. Wherever the American government goes and whatever it does, it remains subject to the confines of the Constitution.<br /> Not to worry, administration sources claim, the FBI won't learn of whatever beans al-Libi spills while the CIA is simulating his drowning. Wrong again. While no federal court will admit evidence obtained under torture, the Patriot Act -- that monstrosity that permits federal agents to write their own search warrants and FISA court judges to evade the Constitution -- requires intelligence interrogators and law enforcement interrogators to share information -- even the results of torture. So much for the presumption of innocence, the right to a lawyer, the right to remain silent, the right to be brought before a judge, and the rule of law.<br /><br /> The U.S. is a signatory to treaties that prohibit kidnapping, no matter the governmental need for the victim. Just ask Robert Seldon Lady, the former CIA station chief in Milan who was convicted in absentia a few years ago in Italy of kidnapping a Muslim imam there, and then was arrested on an international warrant in Panama this summer. And President George W. Bush himself and others were convicted in absentia of war crimes by a court in Malaysia last year. Can you imagine the outcry if Bush or Lady were kidnapped off of American streets by foreign agents? How can it be lawful for the U.S. government to kidnap innocent foreigners but not for foreign agents to kidnap guilty Americans?<br /><br /> While much of the above was going on in secret, two public spectacles played out on American TV last week. One involved a gang of bikers in New York City who chased a family in a Range Rover at high speeds and eventually pulled the driver from his car and beat and kicked him. Eventually the cops caught the gang, but not all gang members will be prosecuted, as at least three of them are cops -- and they did nothing to stop the assault.<br /><br /> Also last week, a deranged single mom rammed her car into a fence that surrounds the White House. Then she sped toward Capitol Hill, a few blocks away. Instead of using any one of a number of non-lethal procedures to stop her, dozens of police gave chase and fired military-grade weapons wildly at her, hitting one of their own. After containing the car, the cops slaughtered her in a hail of bullets. Then the cops discovered that she was unarmed and had her 1-year-old baby with her.<br /><br /> What's going on here? <br /><br /> What's going on is the flow of government lawlessness down from the feds to the cops in the streets. Like children observing and imitating their parents' unsanctioned, inappropriate, yet repeated behavior, when cops see the use of the military today to pull off government crimes, to shortcut the law and to evade the Constitution, they arm themselves with military-grade hardware and do the same.<br /><br /> In America today, to paraphrase Voltaire, criminals are punished for their crimes, except when they commit them to the sounds of official rejoicing.</p>Judge Andrew Napolltano2013-10-10T21:11:00ZJudge Nap's Latest Column: Government Looking for Witches Will Find ThemJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Government-Looking-for-Witches-Will-Find-Them/-902704854550290110.html2013-10-03T07:00:00Z2013-10-03T07:00:00Z<p>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.<br /> 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.<br /> <br />General warrants do not state the name of the place to be searched or the person or thing to be seized, and they do not have the necessity of individualized probable cause as their linchpin. They simply authorize the bearer to search wherever he wishes for whatever he wants. General warrants were universally condemned by colonial leaders across the ideological spectrum -- from those as radical as Sam Adams to those as establishment as George Washington, and from those as individualistic as Thomas Jefferson to those as big-government as Alexander Hamilton. We know from the literature of the times that the whole purpose of the Fourth Amendment -- with its requirements of individualized probable cause and specifically identifying the target -- is to prohibit general warrants.<br /> And yet, the FISA court has been issuing general warrants and the NSA executing them since at least 2004.<br /> <br />Last week we learned in a curious colloquy between members of the Senate Select Intelligence Committee and Gen. Keith Alexander and Deputy Attorney General James Cole that it is more likely than not that the FISA court has permitted the NSA to seize not only telephone, Internet and texting records, but also utility bills, credit card bills, banking records, social media records and digital images of mail, and that there is no upper limit on the number of Americans' records seized or the nature of those records.<br /> <br />The judges of the FISA court are sworn to secrecy. They can't even possess the records of what they have done. There is no case or controversy before them. There is no one before them to oppose what the NSA seeks. They don't listen to challenged testimony. All of this violates the Constitution because it requires a real case or controversy before the jurisdiction of federal courts may be invoked. So when a FISA court judge issues an opinion declaring that NSA agents may spy to their hearts' content, such an opinion is meaningless because it did not emanate out of a case or controversy. It is merely self-serving rhetoric, unchallenged and untested by the adversarial process. Think about it: Without an adversary, who will challenge the NSA when it exceeds the "permission" given by the FISA court or when it spies in defiance of "permission" denied? Who will know?<br /> <br />For this reason, the FISA court is unconstitutional at best and not even a court at worst. It consists of federal judges administratively approving in secret the wishes of the government. By not adjudicating a dispute, which is all that federal judges can do under the Constitution, these judges are not performing a judicial function. Rather, they are performing a clerical or an executive one, neither of which is contemplated by the Constitution.<br /> <br />And yet, the president and his secret agents and the politicians who support them would have you believe that the NSA's spying has been approved by bona fide federal courts. It has not. Does the Constitution permit the federal government to put us all under a microscope? It does not. The government is supposed to work for us and derive its powers from the consent of the governed. Do you know anyone who consented to all this? I do not.<br /> <br />The traditional bar that the government must meet in order to begin gathering data on any of us is individualized articulable suspicion about criminal behavior. The purpose of that requirement is to prevent witch hunts and inquisitions and knocks on doors in the night. Without that bar, there are no limits as to whom the feds can pursue.<br /> <br />What will become of us if the feds can watch our every move and hear our every conversation and learn our every expenditure and read our every email and find out what we eat and whom we love and how we live? There are well over 4,500 federal crimes. The feds can find something wrong that anyone has done. Stalin's chief of secret police, the monster Lavrenti Beria, once famously proclaimed: "Show me the man and I will find you the crime." History teaches that a government on a witch hunt, unconstrained by law or Constitution, will not stop until it can brand someone as a witch. And an unbridled inquisition will not stop until it finds a heretic. The Constitution simply never entrusted the people who run the government with this awesome power. Rather, in the Fourth Amendment, it prohibited it.<br /> <br />If the right to life, liberty and the pursuit of happiness -- which are the stated reasons for forming the United States of America in the first place -- mean anything, they mean that we all possess the inalienable right to be different and the inalienable right to be left alone. Neither of these rights can be honored when the government knows all. And when the government knows all, and doesn't like what it knows, we will have an authoritarian state far more odious than any history has ever known.<br /> On the face of an all-knowing secret government are large and awful eyes -- and no smile.</p>
<p> </p>Judge Andrew Napolltano2013-10-03T07:00:00ZJudge Nap's Latest Column: Is the FISA Court Constitutional?Judge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Is-the-FISA-Court-Constitutional/-60350395463155547.html2013-09-26T17:18:00Z2013-09-26T17:18:00Z<p>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."</p>
<p>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.</p>
<p>When Edward Snowden, the former contractor to the National Security Administration (NSA), revealed that since at least 2004 the FISA court has been issuing general warrants to NSA agents and to telecoms and Internet service providers directing that the NSA capture in bulk the content of telephone calls and emails and texts sent into, out of or within the United States, we learned a bit more about the operation of the FISA court.</p>
<p>What we learned makes it self-evident that <em>the FISA Court itself is unconstitutional.</em> </p>
<p>The Constitution establishes a limited federal government, which includes a limited federal judiciary. Because the Framers feared that federal judges might act as super-legislatures and go about declaring unconstitutional whatever legislation or presidential actions displeased them, they wrote into Article III of the Constitution the absolute prerequisite of the existence of a case or controversy before the jurisdiction of any federal court could be invoked.</p>
<p>The case or controversy requirement was drafted to prevent courts from rendering advisory opinions whereby they simply declared that they had certain authority or that some statute or executive act was unconstitutional. The case or controversy requirement has been uniformly interpreted by the Supreme Court to require either a plaintiff whose allegations state a case of real palpable harm against a defendant, or a defendant in a criminal case who is in real jeopardy of losing life, liberty or property at the hands of the government before a federal court may have jurisdiction.</p>
<p>The case or controversy requirement demands that there be real adversity between two or more distinct entities each of which has a stake in the outcome of a dispute before a federal court can exercise any jurisdiction. Federal courts can only resolve disputes; they cannot rule with finality in the abstract or when approached by only one party. They can grant preliminary temporary relief to one party -- in order to freeze the status quo and in anticipation of an adversarial contest on the merits -- but they cannot rule when only one party is noticed and shows up.</p>
<p>This is precisely how the FISA court functions, and yet we have no merit-based ruling by the Supreme Court on its constitutionality. We do, however, have a solid indication as to how the court would rule. The seminal case in Supreme Court history is Marbury v. Madison (1803). In that case, Congress had attempted to give original jurisdiction to the Supreme Court to hear a dispute that the Constitution said could only be heard by that court in an appellate setting. In denying Marbury's meritorious claim, the court held definitively that Congress cannot alter the Constitution's requirements that serve as a precondition for invoking the jurisdiction of a federal court.</p>
<p>But this is just what Congress did with FISA. In the FISA court, only the government appears, seeking a generalized search warrant without regard to the facts of any specific case. There is no case or controversy in the constitutional sense as there is no adversariness: No plaintiff is suing a defendant, and no defendant is being prosecuted by the government. Absent adversariness, the federal courts have no jurisdiction to do anything.</p>
<p>This flawed system is complicated even further by the fact that should the FISA court deny an application for a general warrant because it believes the government's procedures to be illegal or unconstitutional, those court orders are non-binding and the government has ignored them. Unenforceable rulings that may be disregarded by another branch of the government are not judicial decisions at all, but impermissible advisory opinions prohibited by the Framers.</p>
<p>When a FISA court judge rules that the NSA has the constitutional power to spy on Americans about whom it has no evidence of wrongdoing, as one judge did two weeks ago, because that ruling did not emanate out of a case or controversy -- no one was in court to dispute it -- the court is without authority to hear the matter, and thus the ruling is meaningless.</p>
<p>By altering the constitutionally mandated requirement of the existence of a case or controversy before the jurisdiction of the federal courts may be invoked, Congress has lessened the protection of the right to be left alone that the Framers intentionally sought to enshrine. But don't expect the government to wake up to this threat to our freedom. Its consistent behavior has demonstrated that it doesn't care whether it violates the Constitution. Instead, expect the president's secret agents and the politicians who support them to hide their wrongdoing behind more layers of secrecy.</p>Judge Andrew Napolltano2013-09-26T17:18:00ZJudge Nap's Latest Column: Spying and LyingJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Spying-and-Lying/-350433559966104849.html2013-09-19T17:13:00Z2013-09-19T17:13:00Z<p>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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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 <em>only</em> 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.<br /><br />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."<br /><br />Walton undoubtedly knew then what we know now: that the NSA has in its possession <em>the content</em> 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.<br /><br />Is this the government the Framers gave us? Or has it been perverted beyond recognition? What shall we do about it?<br /><br />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?</p>Judge Andrew Napolltano2013-09-19T17:13:00ZJudge Nap's Latest Column: The President's EmbarrassmentJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-The-Presidents-Embarrassment/764329670222306606.html2013-09-12T22:15:00Z2013-09-12T22:15:00Z<p> </p>
<p>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.</p>
<p>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.</p>
<p>Putin, sounding more like a Nobel Peace laureate than the killer he is known to be, offered to broker a deal whereby the Syrian chemical stockpile would be surrendered to the United Nations, the Syrian government could go about defending itself from the al-Qaida-driven effort to take it over, and the U.S. would leave Syria alone.</p>
<p>Obama is generally firm in his belief that he needs to vindicate the threat he made last summer when he was trying to outdo Mitt Romney on sounding tough. It was then that Obama threatened to intervene in the Syrian civil war if chemical weapons were used by the government. Nevertheless, hating the international embarrassment visited upon him when suddenly Putin seems more reasonable than he does, Obama conceded to my Fox News colleague Chris Wallace that the Kerry-inspired and Putin-pushed idea seemed worth considering. And then the Syrian government agreed.</p>
<p>Just last week, the president was arguing that only military force would show the world that the U.S. means what it says. Just last week, he realized that he needed political cover in order to justify an unpopular invasion, and so he asked Congress for permission to invade Syria, even while knowing that he already has the legal authority to invade on his own. Just last week, he dispatched his political team, including former Secretary of State Hillary Clinton, to argue that war is the only way to go. And just last week, he intimated that he might bomb Syria even if Congress said no.</p>
<p>What happened?</p>
<p>What happened was the president's head counters polled their allies on Capitol Hill earlier this week and informed him that he was about to become the first American president in history to seek war-making authority from Congress and have it denied to him, including by many members of his own political party.</p>
<p>The president cannot even say for sure that the weapons he and his advisers claim were used were in fact deployed by the Assad regime. Nor can they state with intellectual honesty that the freedom or safety of Americans is affected by any weaponry used in this civil war 6,700 miles from our shores.</p>
<p>The legal linchpin of American involvement in a foreign war is not American hatred of one of the weapons systems used in the war, but the imminence of danger to American freedom and safety if we stay out. Treaties to which the U.S. is a party and the body of international law to which the U.S. subscribes make clear that the U.S. cannot lawfully use military force to punish the government of another country without first demonstrating that the other country's military poses an immediate threat of danger to the U.S. Obama and Kerry have been unable to address this.</p>
<p>They also have been unable to address how the U.S. can punish Syria for using weapons that the U.S. and the U.N. have outlawed but Syria has not. Put aside the fact that Syria is a client state of Russia and hence will be protected by it at the U.N., Syria never agreed to the U.N. prohibition on chemical weapons in the first place. So the U.N. is without lawful authority to authorize any violent American intercession in Syria over the use of these weapons.</p>
<p>We don't know whether the Syrian government used chemical weapons on its own people who may or may not have been combatants in its civil war. But we do know that the government of Syria -- like all governments -- has a natural right to defend itself from violent attacks by terrorist groups. We also know that the U.S. used chemical weapons to kill hundreds of Vietcong soldiers in South Vietnam in 1965, and used them as well to kill 76 Americans in Waco, Texas, where federal agents murdered peaceful religious fanatics, including their children, in 1993. Can you imagine the response if another country sought to use violence to punish the Clinton administration for that?</p>
<p>What have we here?</p>
<p>We have a president heedless of his duty to uphold the Constitution by keeping the government within its confines, disdainful of international law when it fails to suit his purposes, and contemptuous of a Congress he once controlled when it feels the heat from the American people who have had enough of being lied to and tricked into wars. The American people have come to realize that war is the mother's milk of big government: It kills innocents, increases taxes or borrowing, diminishes personal freedom, and unleashes irrational fears and hatreds, and the government continues to grow.</p>
<p>While all of this has been consuming us, the federal debt is approaching $17 trillion and Obama wants to borrow another trillion, the NSA has been exposed as spying on every computer and every mobile phone in the country for the past two years at the insistence of the Obama administration, and the fiscal bankruptcy of Obamacare is now just below the horizon.</p>
<p>Does the president really expect the American people to approve his bombing and killing just to avoid his personal embarrassment? Or is it his professional incompetence he wants to hide?</p>Judge Andrew Napolltano2013-09-12T22:15:00ZJudge Nap's Latest Column: Domestic Spying Is Dangerous to FreedomJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Domestic-Spying-Is-Dangerous-to-Freedom/852174935902050034.html2013-08-08T21:06:00Z2013-08-08T21:06:00Z<p>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?<br /><br />That question goes to the heart of the rule of law in a free society.</p>
<p>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.<br /> <br /> This massive spying -- metadata gathering, as the NSA calls it -- was also done notwithstanding statements NSA officials made in public under oath and in secret classified briefings to Congress, which effectively denied it. The denials were in one case admitted to -- "least untruthful," as the director of national intelligence later called his own testimony. Then, when even members of Congress who usually support a muscular national security apparatus realized that they, too, had been lied to by the NSA, the NSA responded with its own leaks.<br /> <br /> It has leaked, for example, that as a consequence of its spying it has prevented at least 50 foreign-originated plots from harming Americans. It eventually backed off that number and declined to reveal with specificity what it independently learned and how that knowledge foiled the plots. But we do know that its colleagues in the FBI were participants in many of those plots, which means they weren't real plots at all -- just government stings going after dopes and dupes.<br /> <br /> Last week, the NSA leaked that it captured actionable intelligence of grave and imminent danger to our embassies in the Middle East. The implication it wants you to draw here is that because it caught al-Qaida operatives talking in code in Yemen about deadly deeds they plan to perpetrate in the Arabian Peninsula, somehow the NSA's spying on 300 million innocent Americans is constitutional, lawful, effective and therefore worth the loss of freedom.<br /> <br /> Earlier this week, we learned that other federal agencies of alphabet nomenclature -- the DHS, the DoJ, the DoD, the DEA, the CIA, the IRS, the FBI -- all want access to the NSA's database, and it has shared some of it with most of them. Also this week, former DEA (Drug Enforcement Administration) agents, claiming this has been going on for at least a decade, acknowledged that the DEA regularly receives raw data from the NSA and uses that data to commence criminal investigations.<br /> <br /> Down the slippery slope we go.<br /> <br /> The whole NSA spying apparatus was sold to Congress as a limited mechanism for combating foreign terrorists. How putting the intimate thoughts of all Americans who use telephones and the Internet under the federal microscope helps to fight foreign terrorists has never been explained in a public court -- only in a secret one. But using this extra-constitutional means to fight crime brings us closer to a Soviet-style and value-free police state.<br /> <br /> The Constitution intentionally has placed values in the path of law enforcement and national security so as to maintain our natural rights. Those values are generally articulated throughout the Constitution and specifically addressed in the Fourth Amendment. The linchpin of those values is the natural right to be left alone. All persons -- even bad guys -- have that inalienable right, and the government may only invade that right when it can identify a bad guy and articulate the probable cause it has to believe he is committing criminal acts. The rest of us -- those for whom there is no probable cause of criminal acts -- retain that right, and it cannot be taken away from us by the supine acquiescence of Congress or an unnamed judge in a secret court. That constitutional requirement -- and that requirement alone -- has kept Americans free from Soviet-style persecutions.<br /> <br /> Now comes Obama, who is quarterbacking the most massive end run around the Constitution in modern times by invading everyone's right to be left alone in the name of national security, but in reality for any governmental purpose the government wishes. And for the unfortunate people whose criminal prosecutions have commenced from the NSA's supposedly anti-terror spying, the feds are refusing to reveal to lawyers what the source of the negative information against them was. That, of course, violates the constitutionally protected right to confront all of one's accusers, especially those who have been paid for their accusations.<br /> <br /> What's going on here?<br /> <br /> It is painfully obvious that the government is not troubled by its own violation of the Constitution. The people in the government who have done this are far more concerned with their retention of power than they are with protecting our personal liberties. That explains their perverse view that when Snowden frustrates them with a whistle-blowing leak, he can be prosecuted, but when they rebut him with their own leaks, they are to be lauded. That is not the rule of law in a free society.<br /> <br /> What will the NSA spies seek next? Our passwords? We already know the answer to that one. They asked for them last week.</p>Judge Andrew Napolltano2013-08-08T21:06:00ZJudge Nap's Latest Column: Liberty's BacklashJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Libertys-Backlash/-759457614626092383.html2013-08-01T21:04:00Z2013-08-01T21:04:00Z<p>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).</p>
<p>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.</p>
<p>It almost passed.<br /> <br /> The final vote, in which the Amash-Conyers amendment was defeated by 205 to 217, was delayed for a few hours by the House Republican leadership, which opposed the measure. The Republican leadership team, in conjunction with President Obama and House Minority Leader Nancy Pelosi, needed more time for arm-twisting so as to avoid a humiliating loss. <br /> <br /> But the House rank-and-file did succeed in sending a message to the big-government types in both parties: Nearly half of the House of Representatives has had enough of government spying and then lying about it, and understands that spying on every American simply cannot withstand minimal scrutiny or basic constitutional analysis.<br /> <br /> The president is deeply into this and no doubt wishes he wasn't. He now says he welcomed the debate in the House on whether his spies can have all they want from us or whether they are subject to constitutional requirements for their warrants. Surely he knows that the Supreme Court has ruled consistently since the time of the Civil War that the government is always subject to the Constitution, wherever it goes and whatever it does.<br /> <br /> As basic as that sounds, it is not a universally held belief among the power elites. Gen. James Clapper, the current boss of all domestic spies, obviously lied when he testified under oath to a Senate committee recently that the government was not accumulating massive amounts of data about tens or hundreds of millions of Americans. Gen. Keith Alexander, the head of the NSA, materially misled a House committee when he was asked under oath whether the NSA has the "ability" to listen to phone calls and he stated it lacks the "authority" to do so. Right off the bat, we can see that these senior spies do not feel bound by the laws prohibiting perjury and the misleading of Congress.<br /> <br /> Congress itself has legislatively attempted to amend the Constitution, knowing that the supreme law of the land can only be amended by three-quarters of the states. The Constitution requires probable cause of criminal activity to be presented to a judge as a precondition of the judge issuing a search warrant. It also requires that the warrant particularly describe the place to be searched or the person or thing to be seized.<br /> <br /> Yet, Congress told the secret FISA court that it can avoid the Constitution and issue a warrant to any spy looking for the phone calls and electronic communications of anyone in America, without probable cause, without naming the persons whose records are sought and without describing the place to be searched. Secrecy-smitten judges, whose clerks are NSA agents and who are not permitted to keep copies of their own rulings, have gone along with this.<br /> <br /> Obama, who did not want a national debate on all this before Edward Snowden blew the whistle on it, has backed off of his earlier claims that the feds are not reading emails or listening to phone calls. He has done this, no doubt, in light of unrefuted statements by Snowden and other NSA whistleblowers to the effect that federal spies can with the press of a computer key read emails and hear phone calls. Only after the Snowden revelations did Obama welcome the "debate" in the House. That debate, in which more than half of his own party rejected his spying, lasted precisely 24 minutes.<br /> <br /> How can a deliberative body of 434 current members debate an issue as monumental as whether the government is bound by the Constitution when it seeks out terrorists in just 24 minutes? Apparently, the House Republican leadership that established the absurd 24-minute rule feared a serious and meaningful public discussion in which its authoritarian impulses would need to confront the Constitution its members swore to uphold. In that 24-minute time span, millions -- millions -- of Americans' phone calls and emails were swept into the NSA's supercomputers in defiance of the Constitution.<br /> <br /> There is a political wildfire burning in the land, and we should all be grateful to Snowden for igniting it. The fire eventually will consume the political derelictions of those who have abandoned their oaths to uphold the Constitution so they can sound tough back home. The Amash-Conyers amendment would have required the feds to tell the court the name of the person whose communications they seek and the evidence they have against that person -- just as the Constitution requires. And it would have prohibited the NSA dragnets the Constitution obviously was written to prevent.<br /> <br /> Instead we have the almost unimaginable prospect and the nearly unthinkable reality of the feds claiming that they can legally put every person in America under their privacy-invading scrutiny in order to catch a few dozen evil ones -- most of whom were entrapped by the FBI in the first place and never posed a serious danger to the public or the nation.<br /> <br /> Would we all be safer if the feds could knock down any door they wished and arrest any person they chose? Who would want to live in such a society? What value is the Constitution if those in whose hands we have reposed it for safekeeping are afraid to do so?<br /> <br /> I expect that the Amash-Conyers amendment will be back on the floor of the House soon. When it is, who will have the courage to preserve, protect and defend personal liberty in a free society?</p>Judge Andrew Napolltano2013-08-01T21:04:00ZJudge Nap's Latest Column: Liberty and SafetyJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Liberty-and-Safety/15700356259313531.html2013-07-30T22:22:00Z2013-07-30T22:22:00Z<p>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.<br /> <br /> 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.<br /> <br /> It doesn't.<br /> <br /> Roman emperors and tribal chieftains, King George III and French revolutionaries, 20th-century dictators and 21st-century American presidents all have asserted that their first job is to keep us safe, and in doing so, they are somehow entitled to take away our liberties, whether it be the speech they hate or fear, the privacy they capriciously love to invade or the private property and wealth they salaciously covet. <br /> <br /> This argument is antithetical to the principal value upon which America was founded. That value is simply that individuals -- created in the image and likeness of God and thus possessed of the freedoms that He enjoys and has shared with us -- are the creators of the government. A sovereign is the source of his own powers. The government is not sovereign. All the freedom that individuals possess, we have received as a gift from God, who is the only true sovereign. All of the powers the government possesses it has received from us, from our personal repositories of freedom. <br /> <br /> Thomas Jefferson recognized this when he wrote in the Declaration of Independence that our rights are inalienable -- they cannot be separated from us -- because we have been endowed with them by our Creator. James Madison, who wrote the Constitution, observed that in the history of the world, when freedom has been won, it happened because those in power begrudgingly permitted freedom as a condition of staying in power or even staying alive.<br /> <br /> But not in America. <br /> <br /> In America, the opposite occurred when free people voluntarily permitted the government to exercise the limited power needed to protect freedom. That is known as "the consent of the governed." To Jefferson and Madison, a government lacking that consent is illegitimate.<br /> <br /> So, the principal author of the Declaration of Independence and the principal author of the Constitution were of one mind on this: All persons are by nature free, and to preserve those freedoms, they have consented to a government. That was the government they gave us -- not power permitting liberty, but liberty permitting power -- and the instrument of that permission was the Constitution.<br /> <br /> The Constitution was created by free men to define and limit the government so it can defend but not threaten our freedoms. Since only free persons can consent to a government, the government cannot lawfully exist without those consents. Here is where the modern-day tyrants and big-government apologists have succeeded in confusing well-meaning people. They have elevated safety -- which is a goal of government -- to the level of freedom -- which created the government. This common and pedestrian argument makes the creature -- safety -- equal its creator -- freedom. That is a metaphysical impossibility because it presumes that the good to be purchased is somehow equal to the free choices of the purchaser.<br /> <br /> What does this mean?<br /> <br /> It means that when politicians say that liberty and safety need to be balanced against each other, they are philosophically, historically and constitutionally wrong. Liberty is the default position. Liberty is the essence of our natural state. Liberty cannot possibly be equal to a good we have instructed the government to obtain.<br /> <br /> What is the only moral relationship between liberty and safety?<br /> <br /> It cannot be balance, because liberty and safety are not equals, as one created the other. It can only be bias -- a continual predisposition toward and preference for freedom. <br /> <br /> Every conceivable clash between the free choices of persons and their instructions to their government to safeguard freedom must favor the free choices because freedom is inalienable. Just as I cannot authorize the government to take away your freedom any more than you can authorize it to take away mine, a majority of all but one cannot authorize the government in a free society to take freedom from that one individual. So if somehow freedom and safety do clash, it is the free choice of each person to resolve that clash for himself, and not one the government can morally make.<br /> <br /> The government will always make choices that favor its power because, as Ludwig von Mises reminded us, government is essentially the negation of freedom. If anyone truly believes that by silencing him or monitoring him or taxing him the government keeps him safe, and that those are the least restrictive means by which to do so, let that person surrender his own speech and privacy and wealth. The rest of us will retain ours and provide for our own safety.<br /> <br /> The reasons we have consented to limited government are to preserve the freedom to pursue happiness, the freedom to be different and the freedom to be left alone. None of these freedoms can exist if we are subservient to the government in the name of safety or anything else.</p>Judge Andrew Napolltano2013-07-30T22:22:00ZJudge Nap's Latest Column: Double JeopardyJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Double-Jeopardy/793924285218998829.html2013-07-18T22:02:00Z2013-07-18T22:02:00Z<p>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.<br /> <br /> 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.<br /> <br /> The justice for which the former state senator sits and waits is not based on any novel or arcane legal argument or any legislative loophole. It is a principle of law as old and as revered as the country itself. It is the constitutional prohibition against double jeopardy. Simply stated, the Obama administration wants to try him twice for the same alleged events, and he has asked a federal appeals court to prevent it from doing so.<br /> <br /> Here's what happened. In December 2009, Bruno was convicted by a federal district court jury in Albany, N.Y., of violating the federal "honest services" statute. Following the law as it then existed, the jury found that he had failed to inform the state of New York -- his employer in his capacity as a sitting state senator -- that he was also employed elsewhere. Being a New York state senator is a part-time job, and virtually all sitting state senators have other employment. Nevertheless, by this failure, he supposedly had denied the state his undivided, or "honest," services. He was not convicted of bribery; he wasn't charged with bribery. He was only charged with and convicted of violating this inane statute.<br /> <br /> The statue is inane because it defies the age-old definition of "crime." Crime is harm -- generally, harm to the public order. This honest services statute has permitted Bruno and others to be prosecuted, not because their behavior caused any harm but because of their silence. But the statute was more than inane. It was also unconstitutional, because it punished silence; and silence is a natural right -- for which we donÕt need the government's permission to exercise and, as a consequence, with which we cannot receive the government's heavy hand.<br /> <br /> Last year, the U.S. Supreme Court unanimously invalidated the honest services statute and ruled that the failure of an employee to tell one employer of his employment relationship with another employer, without any palpable harm to either employer, cannot be a crime in America.<br /> <br /> As a result of that ruling, a Manhattan federal appeals court threw out Bruno's conviction. In a fair world, that would be the end of his ordeal. However, the Obama Department of (political) Justice obtained a new indictment against Bruno based upon the same set of facts that had formed the allegations of a violation of the honest services statute, but which it now claimed constituted bribery. The feds did this even though they had told the federal judge in the first trial nearly a dozen times that the state senator had not committed bribery and even though the witnesses who had testified for the government in the first trial uniformly stated when asked that Bruno had not been bribed.<br /> <br /> Bruno's lawyers saw right through this old trick -- a trick that the kings of England played on their political opponents, including many Colonists. A trick so abominable that the Framers expressly prohibited it in the Constitution. The trick is played when the government calls the old crime -- the one for which the charges have ended favorably for the defendant -- by a new name, and presto ... it can try the defendant again, even though it lost the first round. Regrettably, a federal judge in Albany bought this argument. His decision to let the feds prosecute Bruno a second time for the same events as were subsumed in the first trial is now under appeal.<br /> <br /> Can the feds legally do this? In a word: NO; obviously NO. And in the federal system, it is very rare for an appeals court to get involved in a case before the case has reached a conclusion in the trial court. The fact that the appeals court is even hearing Bruno's appeal at this stage -- before any second trial has taken place -- is a sign from the appeals court that the feds are not following the Constitution and the trial judge in Albany ought to have known that.<br /> <br /> Joe Bruno -- nearing the end of his distinguished public career at age 84 -- is now a symbol of fidelity to the Constitution and an obstacle to a political Department of Justice that lacks that fidelity. If the government can violate a principle as fundamental and universally accepted as the prohibition on double jeopardy -- and do so in plain sight by changing the name of a charge -- there is no limit to what it can do.<br /> <br /> Before he became a tyrant, Abraham Lincoln was a very successful trial lawyer. Demonstrating the propensity of an adversary to mislead, he once asked a jury, "If you call a tail a leg, how many legs does a dog have?" Then he answered: "Four, because calling a tail a leg doesn't make it a leg." Calling an old crime by a different name does not change its essence. A federal appeals court can put a stop to this miscarriage of justice, and it should do so before it spreads its ugly unconstitutional tentacles across the land and Joe Bruno has unwanted company.</p>
<p> </p>Judge Andrew Napolltano2013-07-18T22:02:00ZJudge Nap's Latest Column: Above the LawJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Above-the-Law/317164706229377751.html2013-07-11T21:25:00Z2013-07-11T21:25:00Z<p>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.</p>
<p>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.<br /> <br /> In the modern era, presidents have rejected the value of the rule of law and instead followed their own political interests. President George W. Bush, for example, while signing into law a federal statute prohibiting the government from reading your mail without a search warrant, boasted that he had no intention of enforcing that law -- and we know that he famously did not enforce it.<br /> <br /> But no modern president has picked and chosen which laws to enforce and which to ignore and which to rewrite to the extremes of President Obama. His radical rejection of the rule of law, which presents a clear and present danger to the freedom of us all, has had fatal consequences.<br /> <br /> The law requires that if American tax dollars are being given to the government of another country, and that government is toppled by its military -- the common phrase is a coup d'‚tat -- the flow of cash shall stop immediately, lest we support financially those who have betrayed our values. <br /> <br /> In Egypt, the military arrested the president, suspended the Constitution and installed a puppet regime. But Obama, embarrassed at the fall of the popularly elected but religiously fanatical government he supported, refuses to consider that military takeover a coup. Instead he has called it a popular uprising supported by the military, and he has continued the flow of your dollars into the hands of a military that has been murdering scores of peaceful demonstrators daily in the streets of Cairo.<br /> <br /> The president's signature domestic legislation -- Obamacare -- is scheduled to become effective in stages. One of its provisions, requiring employers of more than 50 persons to offer health insurance acceptable to the feds to all of their employees, becomes effective on Jan. 1, 2014. In anticipation of its becoming law, insurance carriers and employers have calculated that instead of costs going down, as the president promised, they will certainly go up, resulting in the loss of jobs. So the president, mindful of the midterm congressional elections in November 2014 and fearful that Democrats who supported this law might suffer at the polls at the hands of deceived and thus angry voters, announced on the Fourth of July weekend that he planned not to enforce that provision until Jan. 1, 2015.<br /> <br /> When he wanted to use military force in Libya and Pakistan -- two allies -- without congressional approval, out of fear, no doubt, that Congress might turn him down, he dispatched the CIA to do his killing. Why? Because federal law requires that he report all offensive use of the military to Congress and eventually obtain its approval for continued use. Because the CIA largely operates in secrecy, the president needn't report its behavior publicly or even acknowledge that it took place. <br /> <br /> In the same vein, he recently moved all records of the Osama bin Laden killing from the military -- which carried it out -- to the CIA. Why? Because the military is largely susceptible to the Freedom of Information Act, which commands transparency, and the CIA is largely not. He probably fears that the truthful version of bin Laden's demise will become known. If so, it would be the fourth version of those events his administration has given.<br /> <br /> When he wanted to kill an American and his 16-year-old son in Yemen because the American, though uncharged with any crime and unasked to come home, might be difficult to arrest while advocating war in a foreign country, he wrote his own rules for governing his own killings. He did so in secret and notwithstanding clear language in the Constitution expressly prohibiting the government from taking life, liberty or property without due process of law.<br /> <br /> And when he wanted to keep us safe from terrorists but servile to him by spying on all of us, he established an enormous network of domestic spies who have access to all of our phone calls, emails and text messages. And he did this despite unambiguous language in the Constitution requiring a search warrant based on particularized probable cause of crime about the records he wanted to seize or the venues he wanted to search.<br /> <br /> What's going on?<br /> <br /> What we have is a runaway government, dismissive of the Constitution it has sworn to uphold, contemptuous of the law it is required to enforce and driven by its own values of maximum control and minimum personal freedom. And we have a Congress supine enough to let this happen, as well as a judiciary so tangled in its own arcane procedures that immeasurable human freedom will be destroyed and Obama out of office before any meaningful judicial review can be had.<br /> <br /> Is this the rule of law? What shall we do about it?</p>
<p> </p>Judge Andrew Napolltano2013-07-11T21:25:00ZJudge Nap's Latest Column: Jefferson WeepingJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-Jefferson-Weeping/-888685143212216861.html2013-07-04T21:24:00Z2013-07-04T21:24:00Z<p>Do you have more personal liberty today than on the Fourth of July 2012?<br /> 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.<br /> <br /> The government the Framers gave us was not one that had the power and ability to decide how much freedom each of us should have, but rather one in which we individually and then collectively decided how much power the government should have. That, of course, is also recognized in the Declaration, wherein Jefferson wrote that the government derives its powers from the consent of the governed.<br /> <br /> To what governmental powers may the governed morally consent in a free society? We can consent to the powers necessary to protect us from force and fraud, and to the means of revenue to pay for a government to exercise those powers. But no one can consent to the diminution of anyone else's natural rights, because, as Jefferson wrote and the Congress enacted, they are inalienable. <br /> <br /> Just as I cannot morally consent to give the government the power to take your freedom of speech or travel or privacy, you cannot consent to give the government the power to take mine. This is the principle of the natural law: We all have areas of human behavior in which each of us is sovereign and for the exercise of which we do not need the government's permission. Those areas are immune from government interference.<br /> <br /> That is at least the theory of the Declaration of Independence, and that is the basis for our 237-year-old American experiment in limited government, and it is the system to which everyone who works for the government today pledges fidelity. <br /> <br /> Regrettably, today we have the opposite of what the Framers gave us. Today we have a government that alone decides how much wealth we can retain, how much free expression we can exercise, how much privacy we can enjoy. And since the Fourth of July 2012, freedom has been diminished.<br /> <br /> In the past year, all branches of the federal government have combined to diminish personal freedoms, in obvious and in subtle ways. In the case of privacy, we now know that the federal government has the ability to read all of our texts and emails and listen to all of our telephone calls -- mobile and landline -- and can do so without complying with the Constitution's requirements for a search warrant. We now know that President Obama authorized this, federal judges signed off on this, and select members of Congress knew of this, but all were sworn to secrecy, and so none could discuss it. And we only learned of this because a young former spy risked his life, liberty and property to reveal it.<br /> <br /> In the past year, Obama admitted that he ordered the CIA in Virginia to use a drone to kill two Americans in Yemen, one of whom was a 16-year-old boy. He did so because the boy's father, who was with him at the time of the murders, was encouraging militants to wage war against the U.S. <br /> <br /> He wasn't waging war, according to the president; he was encouraging it. <br /> Simultaneously with this, the president claimed he can use a drone to kill whomever he wants, so long as the person is posing an active threat to the U.S., is difficult to arrest and fits within guidelines that the president himself has secretly written to govern himself.<br /> <br /> In the past year, the Supreme Court has ruled that if you are in police custody and fail to assert your right to remain silent, the police at the time of trial can ask the jury to infer that you are guilty. This may seem like a technical ruling about who can say what to whom in a courtroom, but it is in truth a radical break from the past. <br /> <br /> Everyone knows that we all have the natural and constitutionally guaranteed right to silence. And anyone in the legal community knows that judges for generations have told jurors that they may construe nothing with respect to guilt or innocence from the exercise of that right. No longer. Today, you remain silent at your peril.<br /> <br /> In the past year, the same Supreme Court has ruled that not only can you be punished for silence, but you can literally be forced to open your mouth. The court held that upon arrest -- not conviction, but arrest -- the police can force you to open your mouth so they can swab the inside of it and gather DNA material from you. <br /> <br /> Put aside the legal truism that an arrest is evidence of nothing and can and does come about for flimsy reasons; DNA is the gateway to personal data about us all. Its involuntary extraction has been insulated by the Fourth Amendment's requirements of relevance and probable cause of crime. No longer. Today, if you cross the street outside of a crosswalk, get ready to open your mouth for the police.<br /> <br /> The litany of the loss of freedom is sad and unconstitutional and irreversible. The government does whatever it can to retain its power, and it continues so long as it can get away with it. It can listen to your phone calls, read your emails, seize your DNA and challenge your silence, all in violation of the Constitution. Bitterly and ironically, the government Jefferson wrought is proving the accuracy of Jefferson's prediction that in the long march of history, government grows and liberty shrinks. Somewhere Jefferson is weeping.<br /> <br /> Happy Fourth of July 2013.</p>Judge Andrew Napolltano2013-07-04T21:24:00ZLiberty in ShamblesJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Liberty-in-Shambles/-659646306003639789.html2013-06-27T19:55:00Z2013-06-27T19:55:00Z<p>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.<br /> <br /> 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.<br /> <br /> Thomas Jefferson made the case for natural rights in the Declaration of Independence ("endowed by their Creator with certain inalienable rights"). The Bill of Rights was added to the Constitution to reduce to writing the guarantees of personal liberty. ("Congress shall make no law abridging the freedom of ... religion ... speech ... press ... assembly..." "No person shall ... be deprived of life, liberty, or property, without due process of law..." "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.")<br /> <br /> And, of course, to prevent the recurrence of soldier-written search warrants and the government dragnets and fishing expeditions they wrought, the Constitution mandates that only judges may issue search warrants, and they may do so only on the basis of probable cause of crime, and the warrants must "particularly describ(e) the place to be searched, and the persons or things to be seized."<br /> <br /> Last week, we discovered that the government has persuaded judges to issue search warrants not on the constitutionally mandated basis, but because it would be easier for the feds to catch terrorists if they had a record of our phone calls and our emails and texts. How did that happen?<br /> <br /> In response to the practice of President Richard Nixon of dispatching FBI and CIA agents to wiretap his adversaries under the guise of looking for foreign subversives, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. It prohibited all domestic surveillance in the U.S., except if authorized by a judge based on probable cause of crime, or if authorized by a judge of the newly created and super-secret FISA court. That court was empowered to issue warrants based not on probable cause of crime, but on probable cause of the target being an agent of a foreign power.<br /> <br /> The slippery slope began.<br /> <br /> Soon the feds made thousands of applications for search warrants to this secret court every year; and 99 percent of them were granted. The court is so secret that the judges who sit on it are not permitted to keep records of their decisions. Notwithstanding the ease with which the feds got what they wanted from the FISA court, Congress lowered the standard again from probable cause of being an agent of a foreign power to probable cause of being a foreign person.<br /> <br /> After 9/11, Congress enacted the Patriot Act. This permitted federal agents to write their own search warrants, as if to mimic the British soldiers in the 1760s. It was amended to permit the feds to go to the FISA court and get a search warrant for the electronic records of any American who might communicate with a foreign person.<br /> <br /> In 30 years, from 1979 to 2009, the legal standard for searching and seizing private communications -- the bar that the Constitution requires the government to meet -- was lowered by Congress from probable cause of crime to probable cause of being an agent of a foreign power to probable cause of being a foreign person to probable cause of communicating with a foreign person. Congress made all these changes, notwithstanding the oath that each member of Congress took to uphold the Constitution. It is obvious that the present standard, probable cause of communicating with a foreign person, bears no rational or lawful resemblance to the constitutionally mandated standard: probable cause of crime.<br /> <br /> Now we know that the feds have seized the telephone records of more than 100 million Americans and the email and texting records of nearly everyone in the U.S. for a few years. They have obtained this under the laws that permit them to do so. These laws -- just like the ones that let British soldiers write their own search warrants -- were validly enacted, but they are profoundly unconstitutional. They are unconstitutional because they purport to change the clear and direct language in the Constitution, and Congress is not authorized to make those changes. <br /> <br /> These laws undermine the reasons the Constitution was written, one of which was to guarantee the freedom to exercise one's natural rights. These laws directly contradict the core American value that our rights come from our humanity and may not be legislated away -- not by a vote of Congress, not by the consensus of our neighbors, not even by agreement of all Americans but one.<br /> <br /> The government says we should trust it. Who in his right mind would do so after this? President Obama says the feds have your phone records but are not listening to your calls and will not read your emails. Who would believe him? James Clapper, the director of national intelligence, testified that the feds were not gathering vast data on Americans. Who would trust him? The NSA says that Congress knew about all this, but its members were prohibited from telling the American people. What kind of a democracy is that?<br /> <br /> The modern-day British soldiers -- our federal agents -- are not going from house to house; they are going from phone to phone and from computer to computer, enabling them to penetrate every aspect of our lives. If anything violates the lessons of our history, the essence of our values and the letter of the Constitution, it is this.</p>Judge Andrew Napolltano2013-06-27T19:55:00ZJudge Nap's Latest Column: The Truth Shall Keep Us FreeJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Naps-Latest-Column:-The-Truth-Shall-Keep-Us-Free/218870841586039460.html2013-06-27T19:47:00Z2013-06-27T19:47:00Z<p><br /> 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.<br /> <br /> 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. <br /> <br /> The linchpin of those circumstances is "probable cause" of evidence of crime in "the place to be searched, and the persons or things to be seized." If the government cannot tell a judge specifically what evidence of crime it is looking for and precisely from whom, a judge may not issue a search warrant, and privacy -- the natural human yearning that comes from within all of us -- will remain where it naturally resides, outside the government's reach.<br /> <br /> Congress is the chief culprit here, because it has enacted laws that have lowered the constitutional bar that the feds must meet in order for judges to issue search warrants. And it has commanded that this be done in secret.<br /> And I mean secret. <br /> <br /> The judges of the FISA court -- the court empowered by Congress to issue search warrants on far less than probable cause, and without describing the places to be searched or the persons or things to be seized -- are not permitted to retain any records of their work. They cannot use their own writing materials or carry BlackBerries or iPhones in their own courtrooms, chambers or conference rooms. They cannot retain copies of any documents they've signed. Only National Security Agency staffers can keep these records. <br /> <br /> Indeed, when Edward Snowden revealed a copy of an order signed by FISA court Judge Roger Vinson -- directing Verizon to turn over phone records of all of its 113,000,000 U.S. customers in direct and profound violation of the individualized probable cause commanded by the Constitution -- Vinson himself did not have a copy of that order. Truly, this is the only court in the country in which the judges keep no records of their rulings.<br /> <br /> At the same time that Vinson signed that order, NSA staffers, in compliance with their statutory obligations, told select members of Congress about it, and they, too, were sworn to secrecy. Oregon Democratic Sen. Ron Wyden was so troubled when he learned this -- a terrible truth that he agreed not to reveal -- that he mused aloud that the Obama administration had a radical and terrifying interpretation of certain national security statutes.<br /> <br /> But he did more than muse about it. He asked Gen. James Clapper, the director of national intelligence, who was under oath and at a public congressional hearing, whether his spies were gathering data on millions of Americans. Clapper said no. The general later acknowledged that his answer was untruthful, but he claimed it was the "least untruthful" reply he could have given. This "least untruthful" nonsense is not a recognized defense to the crime of perjury.<br /> <br /> After we learned that the feds are spying on nearly all Americans, that they possess our texts and emails and have access to our phone conversations, Gen. Keith Alexander, who runs the NSA, was asked under oath whether his spies have the ability to read emails and listen to telephone calls. He answered, "No, we don't have that authority." Since the questioner -- FBI agent turned Congressman Mike Rogers -- was in cahoots with the general in keeping Americans in the dark about unconstitutional search warrants, there was no follow-up question. In a serious public interrogation, a committee chair interested in the truth would have directed the general to answer the question that was asked. <br /> <br /> Since that deft and misleading act, former NSA staffers have told Fox News that the feds can read any email and listen to any phone call, and Alexander and Rogers know that. So Alexander's "no," just like his boss's "no," was a lie at worst and seriously misleading at best.<br /> <br /> This is not an academic argument. The oath to tell the truth -- "the whole truth and nothing but the truth" -- also makes those who intentionally mislead Congress subject to prosecution for perjury.<br /> <br /> President Obama is smarter than his generals. He smoothly told a friendly interviewer and while not under oath that the feds are not listening to our phone calls or reading our emails. He, of course, could not claim that they lack the ability to do so, because we all now know that he knows they can.<br /> These Snowden revelations continue to cast light on the feds when they prefer darkness. Whatever one thinks of Snowden's world-traveling odyssey to avoid the inhumane treatment the feds visited upon Bradley Manning, another whistleblower who exposed government treachery, he has awakened a giant. The giant is a public that has had enough of violations of the Constitution and lies to cover them up. The giant is fed up with menial politicians and their media allies demonizing the messenger because his message embarrasses the government by revealing that it is unworthy of caring for the Constitution.<br /> <br /> Think about that: The very people in whose hands we have reposed the Constitution for preservation, protection, defense and enforcement have subverted it.<br /> <br /> Snowden spoke the truth. Knowing what would likely befall him for his truthful revelations and making them nevertheless was an act of heroism and patriotism. Thomas Paine once reminded the Framers that the highest duty of a patriot is to protect his countrymen from their government. We need patriots to do that now more than ever.</p>Judge Andrew Napolltano2013-06-27T19:47:00ZFidelity to the Constitution When We Need ItJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Fidelity-to-the-Constitution-When-We-Need-It/-45071365031440340.html2013-06-20T18:46:00Z2013-06-20T18:46:00Z<p>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.<br /> <br /> 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.<br /> <br /> What did Snowden do that has those in power screaming for his scalp and those -- generally -- who fear the loss of liberty, including millions of young people, grateful for his courage?<br /> <br /> The NSA is America's domestic spying apparatus. Its budget is secret. It will soon occupy the largest federal building on the planet. It often hires outside contractors to do much of its work. One of those contractors is Booz Allen Hamilton. Booz Allen's co-chair is former Admiral John M. McConnell, who once headed the NSA. When Snowden began his work for Booz Allen, he took two oaths. The first oath was to keep secret the classified materials to which he would be exposed in his work as a spy; the second oath was to uphold the Constitution.<br /> <br /> Shortly after Snowden began his work with the NSA, he came to the realization that he could not comply with both oaths. He realized that by keeping secret what he learned, he was keeping the American public in the dark about what its government is doing outside the Constitution in order to control the public.<br /> <br /> What is it doing?<br /> <br /> The government persuaded a federal judge with a perverse understanding of the values and history and language of the Constitution to sign a series of orders directing the largest telephone company in the U.S. and the largest Internet providers in the world to make available to the government's prying eyes all sorts of information about nearly all of us, thus allowing the feds to monitor our use of land line and wireless phones, as well as our use of emails and texts. The numbers are staggering. Verizon has greater than 113,000,000 U.S. customers who generate or receive more than one billion phone calls every day. Americans text and email one another using the services of Microsoft, Google, Yahoo, Facebook and others many billions of times every day.<br /> <br /> The judge's order was profoundly unconstitutional, as is the section of the Patriot Act that authorized it. The Constitution requires that the government demonstrate to all judges being asked to sign search warrants specific evidence of criminal behavior contained in the things to be seized. And it requires that the warrants themselves particularly describe the places to be searched or the persons or things to be seized. <br /> <br /> In this case, the things being seized consist of digital data about nearly everyone in America, which in the hands of a skilled spy can be used to monitor our physical movements and communications and, according to former CIA Director David Petraeus, to predict them. The Patriot Act facilitates these dragnets by unconstitutionally reducing the standard for the issuance of search warrants. The president, who refuses to deny that his spies possess the content <br />of our communications, claims they are not listening to it or reading it.<br /> <br /> Who would believe President Obama?<br /> <br /> One of the spies who knew the power he and his fellow spies had and who had access to the innermost thoughts of hundreds of millions of us -- and who disbelieved the president -- was Edward Snowden. Snowden realized the unconstitutional nature of what the government was doing and concluded that he could not be faithful to both of his oaths. One of those oaths -- to retain secrets -- is grounded in a federal statute that requires secrecy and punishes the exposure of secrets. The other oath is grounded in the Constitution, which is the supreme law of the land and protects the natural right to be left alone and does not punish the governmental violation of that right.<br /> <br /> When confronted with the conflicting oaths, Snowden opted for the higher good: fidelity to the supreme law of the land. Hence, in order to protect the privacy of us all, Snowden violated the lesser oath and upheld the greater one. He could not serve two masters when the lesser of the two (fidelity to the government's laws) facilitated a corruption of the greater of the two (the primacy to the Constitution).<br /> <br /> He's a traitor, the establishment roared. He's a high school dropout. He left the Army. He admits to having lots of sex with his girlfriend. He fled to Hong Kong.<br /> <br /> Who cares?<br /> <br /> He understands, as Ronald Reagan did, that if we don't control the government, the government will control us. That's why the Washington establishment yawned when we learned what it knew and now roars because Snowden challenged it. Those in power want to stay there and will misuse the Constitution to do so for as long as they can get away with it, no matter to which political party they belong. Any government that secretly spies on nearly all the population is aiming to control the population.<br /> <br /> Snowden knew that this massive violation of the constitutionally guaranteed rights of nearly every American, orchestrated and operated in secrecy, is corrupting the Constitution and empowering the corruptors. It was that understanding plus a willingness to face down those in power who lack fidelity to the Constitution and who can do him harm that constituted the behavior of a hero.<br /> <br /> Is he flawed?<br /> <br /> The only hero who was not flawed was nailed to a tree 2,000 years ago because those He came into the world to save rejected Him.</p>
<p> </p>Judge Andrew Napolltano2013-06-20T18:46:00ZWhat if Laws Applied to Everyone?Judge Andrew Napolltanohttp://www.BillOReilly.com/b/What-if-Laws-Applied-to-Everyone/-405649674512307352.html2013-06-07T00:23:00Z2013-06-07T00:23:00Z<p>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?</p>
<p>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?<br /> <br /> What if an organization that killed also owned a hospital or a school and the law made it a crime to contribute to the hospital or the school? What if the Supreme Court ruled that the law is so broad that it covers backslapping, advocacy and free speech? What if the court ruled that the law makes it a crime to encourage any terrorist organization to do anything -- fix teeth, educate children, save lives or kill people? What if the law makes it a crime to talk to any person known to be a terrorist? What if the law is so broad that it punishes ideas and the free expression of those ideas, even if no one is harmed thereby?<br /> <br /> What if FBI agents pretended to be members of these terrorist organizations and set out to find people in America who were willing to join? What if the people they found really did want to join a real terrorist organization, but the organizations were located in the Middle East? What if the FBI offered plane tickets and cash to the people they found who said they were interested in joining these groups?<br /> <br /> What if FBI agents actually encouraged these people to fly to the Middle East and take up arms in a violent civil war? What if the FBI arrested the people it found and encouraged just as they were about to leave the U.S. and then charged them with providing material assistance to terrorist organizations? What if the president boasted that in his mind these duped dopes were really terrorists and their arrests kept us all safer? What if no material assistance had in fact ever been supplied by those dopes to any terrorist organization?<br /> <br /> What if the very members of Congress who voted for this law that prohibits providing material assistance to terrorists by deed or word went and visited people in the Middle East who were fighting a violent civil war? What if these members of Congress concluded that the warriors they visited were good because their adversaries were evil? What if, during a visit, one senator was actually photographed with two al-Qaida-affiliated leaders? What if that was confirmed on national television by the Bush administration ambassador to the United Nations? What if that senator was furious at the former ambassador and insisted that he had not met with al-Qaida? What if that senator encouraged whoever he met with to wage a war of terror on the government of the country they were trying to control? What if that senator insisted that the warriors with whom he met were good warriors because the government they were fighting was evil?<br /> <br /> What if the government prosecuted the dopes whom the FBI duped just because it wanted to boast that it caught them? What if the FBI agents who tricked and trapped these dopes encouraged them to join terrorist groups? What if the FBI agents who tricked and trapped these dopes encouraged them to provide material assistance to terrorist-affiliated organizations in the Middle East? What if the senator that the former ambassador exposed offered to get the U.S. government to provide material assistance to terrorist-affiliated organizations? What if he did the same in Libya a few years ago and that brought anarchy to our former ally? What if our own ambassador to Libya was killed by a terrorist group because there was no effective government there to protect him?<br /> <br /> What if it is a crime to backslap terror fighters and to encourage their terrorist-affiliated organizations to fight, except if the backslapper is an FBI agent or a senator? What if these terror-fought wars are simply not in the best interests of the American people? What if the backslappers love war because it makes the government stronger? What if the backslappers love war because it is easier to raise taxes, regulate behavior and acquire power for the government when wars are being fought? What if the backslappers are worried that the military might atrophy if it goes a long time without fighting?<br /> <br /> What if offensive wars are illegal and morally wrong? What if killing is evil when not done in self-defense? What if those who kill not in self-defense are prosecuted and punished, except when they do so in large numbers and to the sounds of trumpets blaring? What do we do about a government that breaks the laws we have hired it to enforce?</p>Judge Andrew Napolltano2013-06-07T00:23:00ZJudge Napolitano's Column: Tyranny Around the CornerJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitanos-Column:-Tyranny-Around-the-Corner/110495844559094687.html2013-05-23T19:05:00Z2013-05-23T19:05:00Z<p>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.<br /> <br /> 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.<br /> <br /> Under Obama's watch, the majority has, by active vote or refusal to interfere, killed hundreds of innocents -- including three Americans -- by drone, permitted federal agents to write their own search warrants, bombed Libya into tribal lawlessness without a declaration of war so that a mob there killed our ambassador with impunity, attempted to force the Roman Catholic Church to purchase insurance policies that cover artificial birth control, euthanasia and abortion, ordered your doctor to ask you whether you own guns, used the IRS to intimidate outspoken conservatives, seized the telephone records of newspaper reporters without lawful authority and in violation of court rules, and obtained a search warrant against one of my Fox colleagues by misrepresenting his true status to a federal judge.<br /> <br /> James Rosen, my colleague and friend, is a professional journalist. He covers the State Department for Fox News. In order to do his job, he has cultivated sources in the State Department -- folks willing to speak from time to time off the record.<br /> <br /> One of Rosen's sources apparently was a former employee of a federal contractor who was on detail to the State Department, Stephen Jin-Woo Kim. Kim is an expert in arms control and national defense whose lawyers have stated that his job was to explain byzantine government behavior so we all can understand it. When he was indicted for communicating top secret and sensitive information, presumably to Rosen, his lawyers replied by stating that the information he discussed was already in the public domain, and thus it wasn't secret.<br /> <br /> Prior to securing Kim's indictment, the Department of Justice obtained a search warrant for Google's records of Rosen's personal emails by telling a federal judge that Rosen had committed the crime of conspiracy by undue flattery of Kim and appealing to Kim's vanity until Kim told Rosen what he wanted to hear. In a word, that is rubbish. And the FBI agent who claimed that asking a source for information and the federal judge who found that the flattering questions alone constituted criminal behavior were gravely in error.<br /> <br /> Reporters are protected in their craft by the First Amendment, and the Supreme Court has ruled that they can ask whatever questions they wish without fear of prosecution. If Kim revealed classified information to Rosen -- a charge Kim vigorously denies -- that is Kim's crime, not Rosen's. The Supreme Court ruled in the Pentagon Papers case that it is not a crime for a journalist to seek secrets, to receive them, to possess them and to publish them so long as they affect a matter of material public interest.<br /> <br /> The government's behavior here is very troubling. Government lawyers and FBI agents are charged with knowing the law. They must have known that Rosen committed no crime, and they no doubt never intended to charge him, and they never have. They materially misled the judge, who saw the phrase "probable cause" of criminal activity (taken from the Fourth Amendment) in their affidavit in support of the search warrant they sought, and he signed. The judge should have seen this for the ruse it was. It is inconceivable that a person could conspire to commit a crime (release of classified information) that is impossible for that person to commit, particularly with a Supreme Court case directly on point.<br /> <br /> This misuse of the search warrant mechanism by misrepresentation of the status of the target continues the radicalization of federal criminal procedure now typical of this Department of Justice. It has claimed that it can release military weapons to foreign criminal gangs just to see where the weapons end up, and that its agents cannot be prosecuted for harm caused by those who received the weapons. It has held that the serious consideration given in the White House by high-ranking government officials to the identity of persons the president wants to kill somehow is a constitutional substitute for due process and thus enables the president to use drones to kill people uncharged with federal crimes. It has extended the public safety exception to the Miranda rule from the few seconds at the scene of the crime spent securing the prisoner, where the Supreme Court has said it resides, to more than 72 hours.<br /> <br /> And now this.<br /> <br /> The reason we have the due process safeguards imposed upon the government by the Constitution is to keep tyranny from lurking anywhere here, much less around the corner. Due process is the intentionally created obstacle to government procedural shortcuts, which, if disregarded, will invite tyranny to knock at the front door and sneak in through the back. Justice Felix Frankfurter warned of this 70 years ago when he wrote, "The history of liberty has largely been the history of the observance of procedural safeguards." That was true then, and it is true now.<br /> <br /> Do you expect the Department of Justice to cut constitutional corners against you?</p>Judge Andrew Napolltano2013-05-23T19:05:00ZJudge Napolitano's Column: Storm Clouds GatheringJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitanos-Column:-Storm-Clouds-Gathering/-449763300018808685.html2013-05-16T14:00:00Z2013-05-16T14:00:00Z<p>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.<br /> <br /> Until now.<br /> <br /> This past week, we learned that the IRS has targeted for additional scrutiny the tax exemption applications of groups with whose messages it disagrees. We also learned that the Department of Justice obtained the personal telephone records of hundreds of reporters and editors employed by the Associated Press without a search warrant issued by a judge. And during this past week we learned that the White House, the Department of State and the CIA all engaged in a conspiracy of disinformation so that the official version of events of what caused the murders of four Americans at our consulate in Benghazi, Libya, would not impair Obama's re-election campaign in 2012.<br /> <br /> The common threads in all of this government secrecy and lying are a general rejection of government's moral obligation to tell the truth, a disturbing yet brazen willingness to evade and avoid the restrictions the Constitution has deliberately built around government, and a glib admission that the government can do as it pleases so long as it can politically get away with it.<br /> <br /> The Constitution's Equal Protection Clause requires that the government treat all similarly situated entities in a similar manner. The Constitution's First Amendment prohibits the government from using the speech and expressive activities of persons in America as a basis for the disparate treatment of them.<br /> <br /> Thus, on its face -- that is, on the basis of what the IRS has admitted and without any further investigation -- we have violations of these constitutional principles. If the IRS were to examine the applications for tax exemption of Media Matters with the same level of scrutiny as it does with Tea Party Patriots, it would not run afoul of these principles. But Congress has given the IRS broad latitude to scrutinize the behavior of the taxpayers it chooses to scrutinize, and the IRS has (SET ITAL) given itself (END ITAL) authority to probe, prod and plunder wherever it wishes. I say "given itself," because the IRS has rule-making power, which when overlooked by Congress (as is almost always the case) actually serves to enhance IRS powers beyond what Congress permits.<br /> <br /> Short of criminal behavior such as bribery or conspiracy, the IRS employees who have singled out applications for tax exempt status for more scrutiny based on anticipated political expression are subject to removal from office, but they cannot be prosecuted or sued. Here again, Congress is to blame, as both Republicans and Democrats have used and abused the IRS to their advantage, and neither party inwardly wants laws that will prevent it from doing so in the future. Is this what you expect of our tax collectors?<br /> <br /> The First Amendment also assures the right of professional journalists to seek and protect their sources, and it gives them immunity from government prosecution or retribution for truthfully publishing matters of material public interest, even when it involves information stolen from the government. The Supreme Court taught us this in the Pentagon Papers case.<br /> <br /> Moreover, the Fourth Amendment requires that if the government wants private information about who stole its secrets, it needs a search warrant from a judge. But the Patriot Act, which was celebrated by some in the media whose telephone records have since been seized, permits federal agents to write their own search warrants when they seek records from a third party like a telephone company and can claim that pursuit of terrorists is at stake. The Patriot Act makes a mockery of the Fourth Amendment, and the government knows that. When the government chills free speech, we all suffer. Thomas Jefferson preferred newspapers without government to government without newspapers. Whose personal records will the government authorize itself to seize next?<br /> <br /> The lesson of Benghazi is that we had no lawful right to interfere in the domestic affairs of the Libyan government. It was unlawful for Obama to bomb Col. Gadhafi without a congressional declaration of war. The organized assault on our consulate was the unintended consequence of us using force to infuse American-style democracy on a people whose culture is unable and unwilling to accept it. <br /> <br /> But the president's people were terrified that the murder of our ambassador to Libya during the 2012 presidential campaign might impair Obama's re-election chances. So they and he tried to rewrite history, and the more they and he lied the more they and he needed to lie to cover up their original lies. Would you retain an employee who lied to you about the deaths of innocents and lied more to cover up the original lies?<br /> <br /> Now, back to Bush and Obama and the president's job. According to the Constitution, the president's first job obligation is to preserve, protect and defend the Constitution. According to the Constitution, that means preserving Americans' freedom first and safety second. Freedom is our natural state and is the ultimate natural right. Safety is a need that we ourselves can provide when unimpeded by the government. If the president keeps us safe but not free, he is not doing his job. Do you know anyone who feels freer or even any safer because the government trampled personal freedoms and so far has gotten away with it?</p>Judge Andrew Napolltano2013-05-16T14:00:00ZJudge Napolitano's Column: Why We Should Mistrust the GovernmentJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitanos-Column:-Why-We-Should-Mistrust-the-Government/-220120193335279767.html2013-05-09T19:02:00Z2013-05-09T19:02:00Z<p> 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.</p>
<p> 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.</p>
<p> These two pieces of legislation were so unpopular here that Parliament actually rescinded the Stamp Act, and the king's ministers reduced the use of soldier-written search warrants. But the searches for the stamps turned the tide of colonial opinion irreversibly against the king.</p>
<p> The same king also prosecuted his political adversaries in Great Britain and here for what he called "seditious libel" -- basically, criticizing the government. Often that criticism spread and led to civil disobedience, so the British sought to punish it at its source. The prosecutions were so unpopular here, and so contrary to the spirit of what would become the Declaration of Independence, that when the British went home and the Framers wrote the Constitution and the Bill of Rights was added, the First Amendment assured that the new government could not punish speech.</p>
<p> Yet barely 10 years into "our brave, creative, unique experiment in self-rule," in the infamous Alien and Sedition Acts, Congress at the instigation of President John Adams criminalized free speech that was critical of the new government.</p>
<p> How did it come about that members of the same generation -- in some cases the very same human beings -- that declared in the First Amendment that "Congress shall make no law ... abridging the freedom of speech" in fact enacted laws that did just that?</p>
<p> As morally wrong, as violative of the natural law, as unconstitutional as these laws were, they were not historical incongruities. Thomas Jefferson -- who opposed and condemned the acts (he was Adams' vice president at the time) -- warned that it is the nature of government over time to increase and of liberty to decrease. And that's why we should not trust government. In the same era, James Madison himself agreed when he wrote, "All men having power should be distrusted to a certain degree."</p>
<p> The Alien and Sedition Acts were but the beginning of a long train of government abuses visited upon people in America as a consequence of the "experiment in self-rule." I am not quoting Obama's Ohio State speech to nitpick, but rather to establish a base line for my argument that he rejects core principles and historical lessons and, most troubling, the natural law itself when he opines that government should be trusted (SET ITAL) because (END ITAL) it has gained power via self-rule.</p>
<p> Self-rule alone is hardly a basis for governmental legitimacy, unless it is accompanied by fidelity to the natural law and to the rule of law. The rule of law here means fidelity to the Constitution, that all laws are just and apply to everyone, so no one is excused from obeying the laws and no one is excluded from their protections. Yet, self-rule here has been unjust and has brought us the tyranny of the majority. And that tyranny has brought us slavery, unjust wars, Jim Crow laws, domestic concentration camps in wartime, slaughter of babies in the womb, domestic spying without search warrants, torture and death by drones -- just to name a few.</p>
<p> The reason Obama likes government and the reason it is "a dangerous fire," as George Washington warned, and the reason I have been warning against government tyranny in my public work is all the same: The government rejects the natural law because it is an obstacle to its control over us. The natural law is divinely embedded in our souls. It is manifested by the universal yearning for freedom and justice. It consists of areas of human behavior -- thought, expression, religion, self-defense, travel, acquisition and use of property, privacy, for example -- in which our behavior is subject only to the exercise of our free will and not the permission of our neighbors or regulation by the government. The natural law, properly understood, is a restraint on the government.</p>
<p> Yet, government in America -- whether it consists of Congress protecting the slave trade, or John Adams or Abraham Lincoln or Woodrow Wilson prosecuting political speech, or FDR incarcerating Japanese-Americans, or George W. Bush promising immunity for torturers and domestic warrantless spies, or Obama killing whomever he chooses with drones -- has never hesitated to reject the natural law. All of these violations of the natural law were approved by the majority when undertaken. The government's persistent and systematic rejection of the natural law is alone sufficient to mistrust government and reject Obama's Ohio State advice.</p>
<p> The government that has come about by self-rule derives its powers from the consent of the governed. Because the tyranny of the majority can be as dangerous to freedom as the tyranny of a madman, all use of governmental power should be challenged and questioned. Government is essentially the negation of liberty. If we fail to challenge government at every turn, there will be no liberty remaining for us to defend when the government tries to negate it.</p>Judge Andrew Napolltano2013-05-09T19:02:00ZJudge Napolitano's Column: More Holes in the Fourth AmendmentJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitanos-Column:-More-Holes-in-the-Fourth-Amendment/407171967295526510.html2013-05-03T18:33:00Z2013-05-03T18:33:00Z<p>Here they go again. The Obama administration has asked its allies in Congress to introduce legislation that would permit the feds to continue their march through the Fourth Amendment when it comes to obtaining private information about all of us.<br /> <br /> The Fourth Amendment, which guarantees the right to be left alone, was written largely in response to legislation Parliament enacted in the colonial era that permitted British soldiers to write their own search warrants and then use those warrants as a legal basis to enter private homes. The ostensible purpose of doing that was to search through the colonists' papers looking for stamps, which the Stamp Act required the colonists to affix to all documents in their possession. The laws that permitted the soldier-written search warrants and the Stamp Act were the British government's fatal political mistakes, which arguably caused a major shift in colonial opinion toward secession from Britain 10 years before the bloody part of the Revolution began.<br /> <br /> After the Founders won the Revolution, the Framers wrote the Constitution in large measure to assure that the new government in America would not and could not do to Americans what the king had done to the colonists. Hence the Fourth Amendment's requirement that only judges issue search warrants and only after the governmental agency seeking the warrants presents evidence under oath of probable cause of crime. Regrettably, that was weakened after 9/11 with the enactment of the Patriot Act.<br /> <br /> The Patriot Act -- written in defiance of the Constitution and in ignorance of our history -- permits federal agents to write their own search warrants, just as the king and Parliament had permitted British soldiers to do. Those agent-written search warrants are intended to be limited to the search for evidence of terror plots and are theoretically limited to the seizure of physical records in the custody of third parties, like lawyers, doctors, hospitals, billing clerks, telephone and Internet carriers, and even the Post Office. (Did you know that federal agents can see your mail and your legal and medical records without permission from a judge?) This abominable piece of legislation sacrificed freedom for safety and enhanced neither.<br /> <br /> Now the feds want even more personal liberty sacrificed -- this time to make it easier for them to collect digital information.<br /> <br /> The Obama administration wants legislation enacted that will punish Internet service providers who fail to cooperate with FBI requests and court orders. The FBI has revealed that its agents often "lack the time" to obtain search warrants, and so they have gotten into the bad habit of asking Internet service providers to let them in without warrants. <br /> <br /> This was notoriously done in the Bush-era, during which the feds promised immunity to telephone service providers that enabled the feds to spy on their customers. That spying was criminal and gave rise to civil causes of action for damages, as well, until Congress changed the law retroactively and granted the promised immunity after the Bush administration spying was exposed. <br /> <br /> Some telephone providers declined the government requests then, and some Internet providers decline these requests today. Hence, the proposed legislation would punish those providers who protect the privacy of their customers by telling the FBI to go home.<br /> <br /> The second category of punishment sought by the administration is for Internet service providers as to which the FBI has obtained a warrant. A search warrant typically authorizes the government to enter private premises and look for the specific items designated in the warrant. But it does not require the custodian of those specific items to find them for the government. This proposed legislation would change all that.<br /> <br /> The government has subtly revealed that when it comes to digital data it often does not know what it is looking for, and its agents lack the skills to hook into the Internet providers' systems. This raises another set of questions, likely to escape members of Congress as they examine this latest assault on the Fourth Amendment. <br /> <br /> The Framers were very careful when they wrote the Fourth Amendment, as it imposes the most explicit requirements on the government found anywhere in the Constitution. It requires that all search warrants "particularly describ(e) the place to be searched, and the persons or things to be seized." So, if the government follows the Constitution, it cannot seek what it is unable to identify, and it cannot compel the custodian of whatever records it is seeking to do its work for it.<br /> <br /> Until now.<br /> <br /> If enacted, the proposed legislation will punish those Internet service providers that fail to share secrets with the feds. The Obama administration hopes the legislation, if enacted, will enable the feds to set up a system that will let them tap into Internet service providers' data directly from FBI offices, without having to serve the warrant or visit the Internet providers' premises. <br /> <br /> What a temptation for abuse that will become. It will compel data sharing between the government and Internet service providers that will eviscerate what little remains of personal email privacy. It will profoundly violate the Fourth Amendment by turning employees of Internet service providers into de facto unpaid federal agents. And it will punish all those who decline to go along with this with crippling fines that double every day.<br /> <br /> Wasn't the Constitution written to keep the government off the backs of the people? Does the government work for us, or do we work for the government?</p>
<p> </p>Judge Andrew Napolltano2013-05-03T18:33:00ZJudge Napolitano's Column: Boston and FreedomJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitanos-Column:-Boston-and-Freedom/296430431036873324.html2013-04-25T19:31:00Z2013-04-25T19:31:00Z<p>The government's fidelity to the Constitution is never more tested than in a time of crisis. The urge to do something -- or to appear to be doing something -- is nearly irresistible to those whom we have employed to protect our freedom and to keep us safe. Regrettably, with each passing violent crisis -- Waco, Oklahoma City, Columbine, 9/11, Newtown and now the Boston Marathon -- our personal freedoms continue to slip away, and the government itself remains the chief engine of that slippage.<br /> <br /> The American people made a pact with the devil in the weeks and months following 9/11 when they bought the Bush-era argument that by surrendering liberty they could buy safety. But that type of pact has never enhanced either liberty or safety, and its fruits are always bitter.<br /> <br /> The Constitution is the supreme law of the land. It was written to create and to restrain the federal government. Every person who works for any government in the U.S. has taken an oath of fidelity to the Constitution, not unlike the presidential oath, which induces a promise to preserve, protect and defend the Constitution.<br /> <br /> The chief and final interpreter of the Constitution is the Supreme Court. One may not always agree with its interpretations, but they are, as legal scholars sometimes say, "infallible because they are final." Those interpretations are particularly final when we have relied on them for generations. <br /> <br /> One of those rulings underscores the primacy of constitutional protections, no matter the environment in which they are claimed. Indeed, after the Civil War had ended and President Lincoln was dead, the Supreme Court in a case called Ex parte Milligan (1866) rebuked and reversed Lincoln's unilateral assaults on personal freedoms in the North and in so doing reminded us that the Constitution was written for good times and for bad, and its protections cover all persons at all times and under all circumstances who have any contact, voluntary or not, with the government.<br /> <br /> The court has also ruled consistently throughout the 20th century that just as the First Amendment protects the freedom of speech, it also protects the freedom not to engage in speech. One hundred years after Milligan, the Supreme Court first recognized and articulated the constitutional basis for the right to remain silent in the Miranda case. That right is a natural right that is inherent in all human beings, and it is arguably articulated in the First and Fifth Amendments.<br /> <br /> But since the court understood that most folks don't know that they have the right to remain silent in the face of government demands for speech, it mandated that all governments -- local, state and federal -- comply with their affirmative obligation to tell everyone in their custody whom their agents wish to interrogate about the existence of this right, as well as the obligation of the government to honor it faithfully once it has been invoked. That has consistently been the law of the land for the past 50 years.<br /> <br /> The pact with the devil occurred in the fall of 2001, when then President George W. Bush and Congress decided that they would use the machinery of the federal government to secure safety, rather than liberty. So, the Bush-inspired Patriot Act permits federal agents to write their own search warrants, and the Bush-inspired new FISA statutes permit search warrants of some Americans' phone calls without a showing of probable cause as the Constitution requires, and the Bush-era intimidation of telephone service providers permitted our overseas spies to snoop on our domestic phone calls. None of this has enhanced safety, and all of it has diminished liberty.<br /> <br /> In the Obama administration, the devil has demanded more. In the past five years, we have seen federal spies capturing the keystrokes on our computers, local police using federal dollars to install cameras and microphones on nearly every street corner, and, the latest lamentable phenomenon, the use of false emergencies to undermine freedom.<br /> <br /> This began at the Mexican border, where immigration agents have been told to interrogate first and Mirandize later. It moved to Washington, where we have an attorney general who has told federal agents that the extremely limited public safety exception to the Miranda rule can exist for up to 48 hours. And it proceeded to the spectacle of well-meaning FBI agents being told to reject their training and the common understanding of well-regarded constitutional law and interrogate a half-drugged suspect with a hole in his throat whom they were about to charge with mass murder, in utter defiance of Miranda.<br /> <br /> The public safety exception to Miranda goes to the safety of the officers and others present at the moment of arrest. It permits the police to express an excited utterance ("Where's the gun?") in an effort to protect themselves before securing the defendant and before advising him of his rights. According to the Supreme Court, it can last for just a few seconds.<br /> <br /> The Obama administration's radical reinterpretation of the natural and constitutional right to remain silent is unprecedented, terrifying and disingenuous. Think about this: The governor of Massachusetts, the superintendent of the Massachusetts State Police, the mayor of Boston, the Boston police commissioner, and the head of the Boston FBI office all proclaimed on Saturday morning that the danger had passed and Boston and its suburbs could return to normal. Yet the attorney general in Washington told his FBI agents in Boston to disregard those officials and instead pretend that the public safety was still jeopardized and then expand a 10-second window to 72 hours.<br /> <br /> The Constitution was written to preserve freedom by restraining the government. The courts from time to time have required the government to respect the natural law, as well. But when the attorney general arbitrarily changes the law to suit the demands of the people when they are weeping, it fundamentally undermines our freedoms. And a pact with the devil is the most dangerous of all, because his appetite can never be sated.</p>Judge Andrew Napolltano2013-04-25T19:31:00ZJudge Napolitano's Column: Taxation is TheftJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitanos-Column:-Taxation-is-Theft/-365236339345295093.html2013-04-18T16:20:00Z2013-04-18T16:20:00Z<p>With a tax code that exceeds 72,000 pages in length and consumes more than six billion person hours per year to determine taxpayers' taxable income, with an IRS that has become a feared law unto itself, and with a government that continues to extract more wealth from every taxpaying American every year, is it any wonder that April 15th is a day of dread in America? Social Security taxes and income taxes have dogged us all since their institution during the last century, and few politicians have been willing to address these ploys for what they are: theft.<br /> <br /> Texas Gov. Rick Perry caused a firestorm among big-government types during the Republican presidential primaries last year when he called Social Security a Ponzi scheme. He was right. It's been a scam from its inception, and it's still a scam today.<br /> <br /> When Social Security was established in 1935, it was intended to provide minimal financial assistance to those too old to work. It was also intended to cause voters to become dependent on Franklin Delano Roosevelt's Democrats. FDR copied the idea from a system established in Italy by Mussolini. The plan was to have certain workers and their employers make small contributions to a fund that would be held in trust for the workers by the government. At the time, the average life expectancy of Americans was 61 years of age, but Social Security didn't kick in until age 65. Thus, the system was geared to take money from the average American worker that he would never see returned. <br /> <br /> Over time, life expectancy grew and surpassed 65, the so-called trust fund was raided and spent, and the system was paying out more money than it was taking in -- just like a Ponzi scheme. FDR called Social Security an insurance policy. In reality, it has become forced savings. However, the custodian of the funds -- Congress -- has stolen the savings and spent it. And the value of the savings has been diminished by inflation. <br /> <br /> Today, the best one can hope to receive from Social Security is dollars with the buying power of 75 cents for every dollar contributed. That makes Social Security worse than a Ponzi scheme. You can get out of a Ponzi investment. You can't get out of Social Security. Who would stay with a bank that returned only 75 percent of one's savings?<br /> <br /> The Constitution doesn't permit the feds to steal your money. But steal, the feds do.<br /> <br /> At one of last year's Republican presidential debates, a young man asked the moderator to pose the following question to the candidates: "If I earn a dollar, how much of it am I entitled to keep?" The question was passed to one of the candidates, who punted, and then the moderator changed the topic. Only Congressman Ron Paul gave a serious post-debate answer to the young man's question: "All of it."<br /> <br /> Every official foundational government document -- from the Declaration of Independence to the U.S. Constitution to the oaths that everyone who works for the government takes -- indicates that the government exists to work for us. The Declaration even proclaims that the government receives all of its powers from the consent of the governed. If you believe all this, as I do, then just as we don't have the power to take our neighbor's property and distribute it against his will, we lack the ability to give that power to the government. Stated differently, just as you lack the moral and legal ability to take my property, you cannot authorize the government to do so.<br /> <br /> Here's an example you've heard before. You're sitting at home at night, and there's a knock at the door. You open the door, and a guy with a gun pointed at you says: "Give me your money. I want to give it away to the less fortunate." You think he's dangerous and crazy, so you call the police. Then you find out he is the police, there to collect your taxes.<br /> <br /> The framers of the Constitution understood this. For 150 years, the federal government was run by user fees and sales of government land and assessments to the states for services rendered. It rejected the Hamiltonian view that the feds could take whatever they wanted, and it followed the Jeffersonian first principle that the only moral commercial exchanges are those that are fully voluntary.<br /> <br /> This worked well until the progressives took over the government in the first decade of the 20th century. They persuaded enough Americans to cause their state legislatures to ratify the Sixteenth Amendment, which was designed to tax the rich and redistribute wealth. They promised the American public that the income tax would never exceed 3 percent of income and would only apply to the top 3 percent of earners. How wrong -- or deceptive -- they were.<br /> <br /> Yet, the imposition of a federal income tax is more than just taking from those who work and earn and giving to those who don't. And it is more than just a spigot to fill the federal trough. At its base, it is a terrifying presumption. It presumes that we don't really own our property. It accepts the Marxist notion that the state owns all the property and the state permits us to keep and use whatever it needs us to have so we won't riot in the streets. And then it steals and uses whatever it can politically get away with. Do you believe this?<br /> <br /> There are only three ways to acquire wealth in a free society. The inheritance model occurs when someone gives you wealth. The economic model occurs when you trade a skill, a talent, an asset, knowledge, sweat, energy or creativity to a willing buyer. And the mafia model occurs when a guy with a gun says: "Give me your money or else." <br /> <br /> Which model does the government use? Why do we put up with this?</p>
<p> </p>Judge Andrew Napolltano2013-04-18T16:20:00ZJudge Napolitano's Column: Drones, Guns and the PresidentJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitanos-Column:-Drones-Guns-and-the-President/386089442147497032.html2013-04-11T14:37:00Z2013-04-11T14:37:00Z<p>Does the government work for us, or do we work for the government? How can the president claim the lawful power to kill whomever he wishes and at the same time ask Congress to incapacitate our ability to defend ourselves against those who might seek to kill us?<br /> <br /> Kentucky Sen. Rand Paul struck a raw nerve in the weak underbelly of the Obama administration last month with his 13-hour filibuster. Paul was furious -- as every American should be -- that the president refused to admit that he does not possess the lawful authority to kill Americans with drones. The senator used the confirmation hearings of now CIA Director John Brennan as a forum in which to articulate the principled constitutional argument that whenever the government wants the life, liberty or property of anyone, it can only obtain that via due process. <br /> <br /> Due process is the command of the Fifth Amendment. "Due process" is the jurisprudential phrase for a fair jury trial and the accompanying constitutional protections. The reasons we have these protections are the wish of the Framers that our natural rights -- here, the rights to life, liberty and property and to fairness from the government -- be guaranteed and their fear that they not suffer under another Star Chamber. Star Chamber was a secret gaggle of advisers to British kings that decided who among the king's adversaries would lose his life, liberty or property without due process. Once that decision was made, it was carried out.<br /> <br /> Paul articulated all of this during his filibuster. He did not read gibberish, as those who have filibustered in the past sometimes have done. He made principled moral and legal arguments for 13 hours. His arguments read like a passionate college lecture on personal liberty in a free society.<br /> <br /> The next day, Attorney General Eric Holder sent a terse letter to Paul that reads in its entirety as follows: "It has come to my attention that you have now asked an additional question: 'Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?' The answer to that question is no." This is an unremarkable statement, but one that only came about after the senatorial equivalent of pulling teeth. <br /> <br /> Paul's filibuster was prompted by the administration's repeated refusal to answer that question. Those refusals came from the testimony of Holder, FBI Director Robert Mueller and then CIA Director-nominee Brennan. They all declined to answer the question of whether the president has the power to use drones to kill Americans in America, and they all referred the questioners to their boss in the White House.<br /> <br /> Their boss in the White House has never publicly answered that question, but he has exercised that horrific power without publicly defending or legally justifying it. When lawyers for potential victims of presidential killings (how terrifying does that sound?) sought to ascertain the source of that power, the president dispatched Justice Department lawyers into court to persuade judges that the legal argument supporting killings is classified. That's because, those Justice Department lawyers argued, the decisions to kill -- just like Star Chamber's decisions to kill -- are made in secret; hence, the legal support for the killings must be kept secret.<br /> <br /> How could a legal argument be classified? How could a judge accept that sophistry? How could a president sworn to uphold the Constitution claim the power to kill people on his own?<br /> <br /> As if to antagonize further those who believe the Constitution means what it says, the same president who says he can't reveal the legal basis for his killing wants to take away your right to self-defense against a killer, and he wants to prevent you from having the means with which to shoot at a tyrant should such a monster take over the government. <br /> <br /> The reason we are a free and independent people today is our secession from Great Britain, and that secession only came about because we had the means with which to repel the soldiers of the British king. Without weaponry in the hands of ordinary folks and unknown to the government (so it doesn't know from whom to seize weapons), we will lack the ability to repel a modern-day George III.<br /> <br /> So, today we have a president who has sworn to uphold the Constitution but seems hell-bent on violating it. He wants to use the force of legislation to weaken your right to self-defense, and he is already using powers never granted to him to kill uncharged, unindicted Americans whom his advisers in secret have decided must go.<br /> <br /> The government derives its powers from the consent of the governed. Do you know anyone who consented to this? If you do, they consented for themselves. The rest of us will keep our lives, liberty and property and defy any government efforts to take them.</p>
<p> </p>Judge Andrew Napolltano2013-04-11T14:37:00ZJudge Napolitano's Column: When the Government Goes BankruptJudge Andrew Napolltanohttp://www.BillOReilly.com/b/Judge-Napolitanos-Column:-When-the-Government-Goes-Bankrupt/-761486127815454168.html2013-04-04T18:06:00Z2013-04-04T18:06:00Z<p><span> </span><span>What happens when the government goes bankrupt? This question is one that sounds like a hypothetical exercise in a law school classroom from just a few years ago, where it might have been met with some derision. But</span><span> </span><span id="OBJ_PREFIX_DWT81_com_zimbra_date" class="Object">today</span><span>, it is a realistic and terrifying inquiry that many who have financial relationships with governments in America will need to make, and it will be answered with the gnashing of teeth.<br /></span><br /><span> </span><span>Earlier this week, a federal judge accepted the bankruptcy petition of Stockton, Calif., a city of about 300,000 residents northeast of San Francisco, over the objections of those who had loaned money to the city. The lenders -- called bondholders -- and their insurers saw this coming when the city stopped paying interest on their loans -- called bonds. In this connection, a bond is a loan made to a municipality, which pays the lender tax-free interest and returns the principal when it is due. Institutional lenders usually obtain insurance, which guarantees the repayment but puts the insurance carrier on the hook.<br /></span><br /><span> </span><span>The due dates of many of these bonds have come and gone, and the bondholders and their insurers want Stockton to repay the loans. But the city lacks the money with which to make the repayments. It borrowed money from the bondholders during good financial times, when its real estate-generated tax receipts were greater than</span><span> </span><span id="OBJ_PREFIX_DWT83_com_zimbra_date" class="Object">today</span><span>, and when its advisers predicted no foreseeable end to the flow of cash to the city. The expected flow of that cash, the natural inclination of those in government to want to give away other people's money, and the self-serving manipulations of those in power who rewarded their friends and themselves with rich pensions combined to cause the city to make generous pension commitments to its employees.</span><span> <br /></span><br /><span> </span><span>It is politically easier to offer generous pension payments to municipal employees in the future than it is to raise their salaries</span><span> </span><span id="OBJ_PREFIX_DWT85_com_zimbra_date" class="Object">today</span><span>. The promise to pay a pension to qualifying retirees upon their entry into the retirement system, just like the promise to repay bondholders the money they loaned, is a legally enforceable contract.<br /></span><br /><span> </span><span>So, confronted with an obligation to repay more than $200 million in loans to bondholders and more than $900 million to the California pension system for its current and former employees, and confounded by a serious reduction in real estate tax revenue, so serious that Stockton cannot afford to pay either the bondholders or the pension system, let alone both, the city that over-borrowed and over-spent and over-promised has sought the protection of a federal bankruptcy court.<br /></span><br /><span> </span><span>Bankruptcy in America is a strange bird. It permits debtors to be relieved of their financial obligations by paying less, often far less, than they owe. It compels creditors to accept less, often far less, than they are due. It is generally an orderly and mechanical process presided over by a neutral judge without a jury. Its goal is to get the creditors something, leave the debtors with something, and let all parties go home in peace and resume their livelihoods.<br /></span><br /><span> </span><span>But it rarely happens to the government. That's because the government, which has no competition, creates no wealth, doesn't produce anything of value and needn't attract clients, has a monopoly on the use of force with which it can extract what it needs to pay for its mistakes in the form of higher taxes. These extractions, of course, are not voluntary transactions as when you buy gas for your car or food for your table. They are mafia-style transactions: Pay us more, or else.<br /></span><br /><span> </span><span>But there must be a limit even to the Stockton taxpayers' willingness to part with their wealth in the form of taxes, hence the filing for bankruptcy. The Stockton case presents a rare opportunity for a federal judge to interfere with the contractual obligations of a municipal government and actually modify or even nullify them.<br /></span><br /><span> </span><span>It also presents a confluence of a culture in California of high taxes and generous -- often non-contributory -- pensions for even short-term government employees and a federal system that when it faces a shortfall simply goes to its banker -- the Federal Reserve -- and asks it to print more cash. Stockton cannot legally print cash the way the Fed can.<br /></span><br /><span> </span><span>How does this affect the rest of us? Currently, state and local governments owe about $4 trillion in pension benefits that they do not have to current and former employees, and they know they cannot politically acquire it by raising taxes. This affects all 50 states. So the odds are that the states and the similarly situated Stocktons in America will go to the Obama administration and ask for free cash. And the president will no doubt find it for them. That "found" cash will be borrowed from the Federal Reserve and, like all of the federal government's debts to the Fed, will never be repaid. But countless generations of American taxpayers will make enormous and endless interest payments on it.<br /></span><br /><span> </span><span>Does that sound too apocalyptic for you? Well, consider this: The federal government is still paying interest on the $30 billion it borrowed to wage World War I nearly 100 years ago. So, to the feds, mortgaging your children's future to save the Stocktons of the country from the consequences of their own profligate ways is a no-brainer.<br /></span><br /><span> </span><span>Should Americans yet unborn pay for all of this? Is this what you elected the government to do? What will it take to keep the government within the confines of the Constitution?<br /></span><br /><br /><br /><span> </span><span>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."</span></p>Judge Andrew Napolltano2013-04-04T18:06:00Z