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April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review June 13, 2013/ 5 Tammuz, 5773

Liberty in Shambles

By Judge Andrew P. Napolitano



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

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

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.")

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."

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?

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.

The slippery slope began.

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.

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.

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.

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.

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.

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?

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.

Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

Your comments are appreciated. Please send them by clicking here.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network.



Previously:


06/06/13 What if Laws Applied to Everyone?
05/30/13 An Assault on Freedom of the Press
05/23/13 Tyranny Around the Corner
05/17/13 Storm Clouds Gathering
05/09/13 Why We Should Mistrust the Government
05/02/13 More Holes in the Fourth Amendment
04/25/13 Boston and Freedom
04/18/13 Taxation Is Theft
04/11/13 Drones, Guns and the President
04/04/13 When the Government Goes Bankrupt
03/28/13 Hope for the Dead
03/21/13 No More Asking for Permission To Speak
03/14/13 What if Nanny Is a Thug?
02/28/13 Obama's False Alarms
02/14/13 Obama's Secret Court for Killing
02/07/13 Obama Gives Himself Permission To Kill
01/31/13 Both sides in immigration debate overlook main issue
01/24/13 Guns and the President
01/17/13 Guns and the Government
01/10/13 Guns and Freedom
12/13/12 Government Spying Out of Control
12/06/12 Republicans for Big Government
11/29/12 Republicans and Taxes
11/15/12 Silencing General Petraeus
11/08/12 Four more years to crush personal freedoms
10/25/12 Silence on Libya
10/18/12 Who Is Responsible for the Mess in Libya?
10/11/12 Let Gary Johnson Debate
10/04/12 Two Failures
09/27/12 The Arab Spring Becomes a Western Winter
08/23/12 Abortion and Rape
08/16/12 November's Choices
08/09/12 Gazillions
07/19/12 The Rule of Law
07/12/12 We Are at a Turning Point
07/03/12 A Vast New Federal Power
06/28/12 Restraining Arizona, Unleashing the President
06/21/12 Can the President Rewrite Federal Law?
06/15/12 Squealing Versus Killing
06/07/12 Where Is The Outrage?
05/31/12 The Secret Kill List
05/24/12 What If We Have Only Memories of Freedom?
05/17/12 Is There a Drone in Your Backyard?
05/10/12 What Constitutes a Fair Trial?
05/03/12 The President's Private War
04/26/12 Rick Perry Was Correct
04/19/12 A Government of Waste
04/12/12 What If the Government Rejects the Constitution?
03/29/12 Can the Government Force You To Eat Broccoli?
03/22/12 Is the CIA in Your Kitchen?
03/15/12 Can the Secret Service Tell You To Shut Up?
03/08/12 Can the President Kill You?
02/23/12 What If Democracy Is Bunk?
02/16/12 Time To Tame the Federal Beast
02/09/12 Do Catholics Have Too Many Babies?
02/02/12 What Is a Just War?
01/25/12 A Few Words About Abortion
01/20/12 How Much Economic Freedom Do We Have in the United States?
01/12/12 What If Elections Don't Matter?
01/05/12 Big Government Cannot Pay Its Bills, Again
12/29/11 The Case for Austerity
12/22/11 New Ideas or Fidelity to Old Principles?
12/15/11 The Government as Lawbreaker, Again
12/08/11 What if our rights didn't come from the Almighty or from our humanity, but from the government?
12/01/11 Can Congress Steal Your Constitutional Freedoms?
11/24/11 What if the Constitution No Longer Applied?
11/17/11 Congress and Secrecy
11/10/11 Does the Government Work for Us, or Do We Work for the Government?
11/03/11 Look at What the Government Has Done with Your Money
10/27/11 What Have the Wars Done for You?
10/20/11 Is Freedom in America a Myth or a Reality?


© 2012, ANDREW P. NAPOLITANO

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