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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 Sept. 26, 2013/ 22 Tishrei, 5774

Is the FISA Court Constitutional?

By Judge Andrew P. Napolitano



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

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

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.

What we learned makes it self-evident that the FISA Court itself is unconstitutional.

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.



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.

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.

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.

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.

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.

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.

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.

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:


09/19/13 Spying and Lying
09/12/13 The President's Embarrassment
09/05/13 War, War, What is it Good For?
08/08/13 Domestic Spying Is Dangerous to Freedom
08/01/13 Liberty's Backlash
07/25/13 Liberty and Safety
07/18/13 Double Jeopardy
07/11/13 Above the Law
07/04/13 Jefferson Weeping
06/27/13 The Truth Shall Keep Us Free
06/20/13 Fidelity to the Constitution When We Need It
06/1313 Liberty in Shambles
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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