In 21st century America, every American wants to be safe from terrorists. To that end, this paper reports that the National Security Agency has embarked upon two programs: The first collects sending and receiving phone numbers and the duration of the calls. The second, if the "leakers" are correct, gathers audio,video, email, photographic and Internet search usage from anyone using Microsoft, Google, Apple and Yahoo.
The goal of security is sound. But can a government that lies and stonewalls about Benghazi and the IRS scandal, and targets AP and Fox News reporters be trusted?
The Fourth Amendment to the U.S. Constitution was passed because our Founding Fathers feared encroachment by the new federal government upon their rights.
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issued, but upon probable cause,supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The amendment was meant to outlaw general warrants and writs of assistance by the British government in the days just before our Revolutionary War. A general warrant was a search/arrest warrant which did not particularly describe the place to be searched, and the persons or things tobe seized. A writ of assistance was a general warrant used in customs cases to find smuggled goods.
Charles Paxton was a Boston customs officer. In 1755, the Superior Court in Boston gave Paxton a writ of assistance that gave Paxton power "to board any boat or other vessel ... within said port... and there to search ...and ... go into any vaults, cellars, warehouses, shops or other places to search (for any undeclared) goods ... (that) are suspected ... to be concealed...."
Six years later, Paxton (and other customs officials)sought to renew their writs which had expired upon the death of George II.In January 1761, Massachusetts merchants challenged them. James Otis, Jr., a Boston attorney, argued on behalf of the merchants, that such writs violated common law principles. "The freedom of one's house was among the most essential branches of English liberty. ... Customs officials, acting under 'Writs of Assistance' may enter our houses when they please, break our locks, bars and everything in their way," he argued.
John Adams, who sat through the attorneys' arguments, wrote "Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born." For Adams, the writs of assistance were the first causes of the Revolutionary War.
The five judges in Paxton's case upheld the use of the writs of assistance. Our Fourth Amendment was written to overrule that holding. Now in 12 years since 9/11, in the name of security, Americans seem willing to surrender those rights, perhaps forever. Suddenly, the NSA appears to be operating under what can fairly be called general warrants issued by the FISA court.
In 1967's Katz v. U. S., the U. S. Supreme Court held that the Fourth Amendment protects people, not places, and that when "One who occupies (a phone booth), shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world."
In his concurring opinion,Justice Harlan said "an enclosed telephone booth is an area where ... a person has a constitutionally protected reasonable expectation of privacy."
But if phone calls, which then passed through phone lines were protected, why shouldn't our emails sent via the Internet be entitled to similar protection? It is one thing to record the numbers from which calls are made and received, or to look at an address on an envelope. It is hard to ï¬nd an expectation of privacy in those things. But until these latest revelations, most of us have believed that we have a reasonable expectation of privacy for the contents of our letters, phone calls and emails unless a judge issues a warrant consistent with the Fourth Amendment requirements.
In his concurring opinion in Katz, Justice Douglas spells out the reasons:"Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved, they are not detached, disinterested and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws.
"The president and attorney general are properly interested parties, cast in the role of
adversary, in national security cases. ... I cannot agree that, where spies and saboteurs are involved, adequate protection of Fourth Amendment rights is assured when the president and attorney general assume both the position of adversary and prosecutor and disinterested, neutral magistrate."
If we can't trust the president or attorney general to be "detached," why should we trust the FBI or NSA? Yes, I want America secure. But I also want a Fourth Amendment that is not in tatters.
Our Fourth Amendment rights against unreasonable search and seizure are not something to be given up lightly without open public discussion and amendment of our Constitution. It took 700 years for our English forbears and the founding Americans to win and be guaranteed the rights specified in the Fourth Amendment. If Americans eschew their hard-won liberties, then what? Once relinquished, can our liberties ever be regained?
Posted Online: June 23, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
Monday, June 24, 2013
Thursday, June 13, 2013
Sebelius' Fundraising Is Unconstitutional
When Congress refuses to appropriate funds, does the President have the power to fund Obamacare asking for gifts and loans?
Most Americans probably never have heard of the Petition of Right of June 7, 1628. In England, the Petition of Right is considered one of England's seminal constitutional documents, on a par with Magna Carta and English Bill of Rights of 1689. It held a similar status in Colonial America.
Indeed, the rights granted by King Charles I in that 385 year-old document are all embodied in sundry provisions of our U.S. Constitution. And now, at its 385 anniversary, the Obama Administration -- in the person of Health and Human Services Secretary Kathleen Sebelius -- has chosen to proceed along the path blazed by the King Charles I -- the king who literally lost his head.
Senator Lamar Alexander (R-Tenn.) has charged that, "Secretary Sebelius's fundraising from and coordinating with private entities helping to implement the new health care law may be illegal, should cease immediately and should be fully investigated by Congress."
The abuse of which Alexander now complains was know in the days of Charles I as a "forced loan." According to a report in the Washington Post, for the last three months, HHS Secretary Sebelius has "made multiple phone calls to health industry executives, community organizations and church groups" asking them to support ObamaCare "in any way they can."
According to Sen. Alexander, this fundraising scheme is similar to the Reagan-era Iran-Contra scandal in that money has been funneled from private entities after Congress had intentionally withheld appropriations, [thereby] circumventing the constitutional requirement that only Congress has the power to appropriate funds.
When Charles I came to the English throne, he needed money to prosecute an inherited war. When Charles asked for money, Parliament refused to use its taxing power. The King then, acting in his "Divine Right" as king, decided to by-pass Parliament and called upon his loyal subjects to make him "voluntary loans." The fact the loans were less than voluntary, was demonstrated by the fact anyone who refused to make the King a loan, was imprisoned.
At first, the judges refused to approve of these "forced loans." They fell in line, however, when the king removed his recalcitrant chief justice of his criminal court.
For refusing to "loan" Charles their money, 70 "gentlemen" were jailed without charge, bond or trial. Five of them, in what is known as the "Five Knights Case," sought their release on bond by habeas corpus. They lost. Bail was denied. His unnerved judges reasoned that if no charges had been brought, "the [prisoners] could not be freed as the offense was probably too dangerous for public discussion!"
But while the judges had been cowed, the House of Commons wasn't and after a lengthy battle with both the lords and the king, the commons [led by Edward Coke, a former chief justice "fired" for his "independence" by Charles' predecessor) ultimately responded with the Petition of Rights.
To get money to fight his wars, Charles grudgingly gave approval to the petition and even more grudgingly -- at Parliament's insistence -- used the traditional language that kings used to make an act of Parliament the law of the land.
The Petition of Right guaranteed the king no longer would seek to raise money without the consent of Parliament. The king promised "no man [would be] compelled to make [the king] any gift, loan, benevolence or tax, or such like charge, without the common consent of parliament."
In so doing, Charles acknowledged that Parliament controlled the purse and that there would be no more end runs around the taxing power of Parliament.
To guarantee Englishmen no longer would be imprisoned for failing to make "voluntary" loans, the king further promised as a matter of law that no Englishman would be imprisoned or detained for failing to make a loan and that no subject of the king should be "destroyed or put to death contrary to the laws and franchise of the land" to end the king's uses of courts martial to exact his loans.
Under our Constitution only Congress has power (a) to lay and collect taxes, and (b) to borrow money on the credit of the United States. And (c) no money can be drawn from the treasury, but in consequence of an appropriation made by Congress.
When Congress intentionally withholds appropriations and decides not to fund a program the President wants funded, the President has no power to seek alternative funding by way of loans, donations, gifts, benevolences or any other device.
31 USC § 1341 provides that no "officer or employee of the United States" may "make or authorize an expenditure ... exceeding an amount available in an appropriation or fund for the expenditure or obligation." When the President or any of his subordinates seek to fund any program, by seeking loans or gifts for that purpose, they are engaging in one of the very abuses of power that ultimately cost King Charles his head.
The business of a President ignoring the will of Congress, as Oliver North and President Reagan did in the Iran-Contra Affair" and as Secretary Sebelius now is doing, smacks of "divine right of kings" -- one-man rule and dictatorship.
I do not mean to imply that the President or Ms. Sebelius would try to imprison any health industry executives, community organizations and church groups who refuse to donate to or support ObamaCare "in any way they can." But at a time when the power of the IRS is running amuck and being used to crush conservative groups, imprisonment is unnecessary. A phone call to a friendly IRS employee, followed by an audit, will work just as well.
Posted Online: June 12, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
Most Americans probably never have heard of the Petition of Right of June 7, 1628. In England, the Petition of Right is considered one of England's seminal constitutional documents, on a par with Magna Carta and English Bill of Rights of 1689. It held a similar status in Colonial America.
Indeed, the rights granted by King Charles I in that 385 year-old document are all embodied in sundry provisions of our U.S. Constitution. And now, at its 385 anniversary, the Obama Administration -- in the person of Health and Human Services Secretary Kathleen Sebelius -- has chosen to proceed along the path blazed by the King Charles I -- the king who literally lost his head.
Senator Lamar Alexander (R-Tenn.) has charged that, "Secretary Sebelius's fundraising from and coordinating with private entities helping to implement the new health care law may be illegal, should cease immediately and should be fully investigated by Congress."
The abuse of which Alexander now complains was know in the days of Charles I as a "forced loan." According to a report in the Washington Post, for the last three months, HHS Secretary Sebelius has "made multiple phone calls to health industry executives, community organizations and church groups" asking them to support ObamaCare "in any way they can."
According to Sen. Alexander, this fundraising scheme is similar to the Reagan-era Iran-Contra scandal in that money has been funneled from private entities after Congress had intentionally withheld appropriations, [thereby] circumventing the constitutional requirement that only Congress has the power to appropriate funds.
When Charles I came to the English throne, he needed money to prosecute an inherited war. When Charles asked for money, Parliament refused to use its taxing power. The King then, acting in his "Divine Right" as king, decided to by-pass Parliament and called upon his loyal subjects to make him "voluntary loans." The fact the loans were less than voluntary, was demonstrated by the fact anyone who refused to make the King a loan, was imprisoned.
At first, the judges refused to approve of these "forced loans." They fell in line, however, when the king removed his recalcitrant chief justice of his criminal court.
For refusing to "loan" Charles their money, 70 "gentlemen" were jailed without charge, bond or trial. Five of them, in what is known as the "Five Knights Case," sought their release on bond by habeas corpus. They lost. Bail was denied. His unnerved judges reasoned that if no charges had been brought, "the [prisoners] could not be freed as the offense was probably too dangerous for public discussion!"
But while the judges had been cowed, the House of Commons wasn't and after a lengthy battle with both the lords and the king, the commons [led by Edward Coke, a former chief justice "fired" for his "independence" by Charles' predecessor) ultimately responded with the Petition of Rights.
To get money to fight his wars, Charles grudgingly gave approval to the petition and even more grudgingly -- at Parliament's insistence -- used the traditional language that kings used to make an act of Parliament the law of the land.
The Petition of Right guaranteed the king no longer would seek to raise money without the consent of Parliament. The king promised "no man [would be] compelled to make [the king] any gift, loan, benevolence or tax, or such like charge, without the common consent of parliament."
In so doing, Charles acknowledged that Parliament controlled the purse and that there would be no more end runs around the taxing power of Parliament.
To guarantee Englishmen no longer would be imprisoned for failing to make "voluntary" loans, the king further promised as a matter of law that no Englishman would be imprisoned or detained for failing to make a loan and that no subject of the king should be "destroyed or put to death contrary to the laws and franchise of the land" to end the king's uses of courts martial to exact his loans.
Under our Constitution only Congress has power (a) to lay and collect taxes, and (b) to borrow money on the credit of the United States. And (c) no money can be drawn from the treasury, but in consequence of an appropriation made by Congress.
When Congress intentionally withholds appropriations and decides not to fund a program the President wants funded, the President has no power to seek alternative funding by way of loans, donations, gifts, benevolences or any other device.
31 USC § 1341 provides that no "officer or employee of the United States" may "make or authorize an expenditure ... exceeding an amount available in an appropriation or fund for the expenditure or obligation." When the President or any of his subordinates seek to fund any program, by seeking loans or gifts for that purpose, they are engaging in one of the very abuses of power that ultimately cost King Charles his head.
The business of a President ignoring the will of Congress, as Oliver North and President Reagan did in the Iran-Contra Affair" and as Secretary Sebelius now is doing, smacks of "divine right of kings" -- one-man rule and dictatorship.
I do not mean to imply that the President or Ms. Sebelius would try to imprison any health industry executives, community organizations and church groups who refuse to donate to or support ObamaCare "in any way they can." But at a time when the power of the IRS is running amuck and being used to crush conservative groups, imprisonment is unnecessary. A phone call to a friendly IRS employee, followed by an audit, will work just as well.
Posted Online: June 12, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
Sunday, June 2, 2013
Impeach Federal Office Holders who Take the Fifth Amendment
Ms. Lerner told the House Oversight committee in an unsworn opening statement that "I have not done anything wrong. I have not broken any laws, and I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee." She then invoked her Fifth Amendment right against self-incrimination.
What must be understood is this. The right against self-incrimination only can be invoked by
one who has a "good faith" belief that by testifying he may disclose something he may have done that might violate the criminal laws. If a person truly is innocent and has no fear his testimony would furnish evidence of his violation of a criminal law, he cannot invoke the 5th Amendment simply to avoid embarrassing himself, or to protect his fellow workers, or his superiors, or for any other purpose.
But what is an IRS employee? What is an IRS supervisor? What is the Commissioner of the
IRS?
They are government employees. But what that means is they really are employees of the people of the United States. They are public servants. They are not our bosses; we are their bosses.
But because they are our servants, or employees, under agency principles, they owe a duty to the American people, and to their Congressional representatives, to give full and fair accountings of their actions as public employees.
Refusing to testify because that testimony may incriminate the employee/witness runs directly contrary to the employees duty to fully and fairly account. Any public employees - including member of the IRS - who takes the 5th to avoid accounting, further abuses his power and commits a high crime or misdemeanor worthy of impeachment.
Commentators agree abuse of power is the quint-essential high crime or misdemeanor, and is the common denominator for all other impeachable offense. Indeed, it is that abuse of power which renders the official unfit to retain his office and unfit to serve.
Five Articles in the U. S. Constitution deal with Impeachment:
Art. I, Sec. 2[5]. The House of Representatives shall ... have the sole power of impeachment.
Art. I, Sec. 3[6]. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation ... no person shall be convicted without the concurrence of two-thirds of the members present.
Art. I, Sec. 3[7]. Judgement in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement and punishment, according to law.
Art. II. Sec. 2 [1]. The President ... shall have power to grant reprieves and pardons ... except in cases of impeachment.
Art.II. Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.
In that regard, two things must be understood: (1) Legal scholars have suggested Congress alone decides for itself what constitutes a "high crime or misdemeanor." In 1970, the then-House Minority Leader, Gerald Ford said "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." (2) In [Walter] Nixon v. U. S., the U. S. Supreme Court held it did not have power to review whether the Senate properly "tried" Judge Nixon. The court found the Constitution confides the sole power to try impeachments to the Senate, and therefore that review of the Senate conviction was a non-justiciable matter, and it therefore lacked judicial power to review the judgment of the Senate.
There are a number of sound reasons why arrogant public officials of Lois Lerner's ilk should be impeached. An impeachment conviction by the Senate swiftly can remove an official from office who abuses his power, or who refuses to account for his conduct in office. It also can render him forever disqualified to hold and enjoy any (present or future) office of honor, trust or profit under the United States.
Additionally, it deprives him of all pension benefits. Finally, there are no endless judicial appeals from the Senate's conviction. Once convicted, the notion the officer is on administrative leave at full salary is dead. And once convicted, the President can't give him another government job.
If Ms. Lerner continues to take the 5th in the face of Impeachment, we can fairly conclude
that her taking the 5th was done in good faith, and that she would prefer to be removed from office, lose her pension and be disgraced and disqualified rather than to tell the whole truth which might lead to her criminal prosecution and imprisonment.
Posted Online: June 01, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
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