In January 2009, President of the United States of America, George W. Bush invited then President-Elect Barack Obama and former Presidents George H.W. Bush, Bill Clinton, and Jimmy Carter for a Meeting and Lunch at The White House. Photo taken in the Oval Office at The White House. All the above helped destroy America's liberties.(Photo credit: Wikipedia)
Andrew Napolitano
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A few weeks ago, President Obama advised graduates at Ohio State
University that they need not listen to voices warning about tyranny
around the corner, because we have self-government in America. He argued
that self-government is in and of itself an adequate safeguard against
tyranny, because voters can be counted upon to elect democrats
(lowercase “d”) not tyrants. His argument defies logic and 20th-century
history. It reveals an ignorance of the tyranny of the majority, which
believes it can write any law, regulate any behavior, alter any
procedure and tax any event so long as it can get away with it.
History has shown that the majority will not permit any higher law or
logic or value – like fidelity to the natural law, a belief in the
primacy of the individual or an acceptance of the supremacy of the
Constitution – that prevents it from doing as it wishes.
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.
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.
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.
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.
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.
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.
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.
And now this.
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.
Do you expect the Department of Justice to cut constitutional corners against you?
