Archive for the ‘#law’ Tag

Here We Go Again   Leave a comment

By Andrew P. Napolitano

For the second time in two months, someone who has pledged allegiance to the Islamic State has plotted to kill innocents in New York City and has executed his plot.

Found on Lew Rockwell

Image result for andrew napolitanoAccording to police, at the height of the Monday morning rush hour this week, in an underground pedestrian walkway that I have used many times, in the middle of Manhattan, a permanent legal resident of the United States named Akayed Ullah detonated a bomb he had strapped to his torso in an effort to kill fellow commuters and disrupt massively life in New York.

The bomb was inartfully constructed, and it injured slightly four people nearby and Ullah himself seriously. He survived, was captured on the spot and is now in the joint custody of the New York Police Department and the FBI in the prison ward of Bellevue Hospital.

Ullah’s wounds had barely been addressed by emergency room physicians when the calls began to resonate in the government and in the media to strip him of his constitutional rights and ship him to a military facility in South Carolina or at Guantanamo Bay, Cuba.

These voices argued without access to any evidence that because the Islamic State is a foreign power with an army that has sworn to do harm to Americans and destroy our way of life, its soldiers have no constitutional protections when they go about their destruction. Ullah is a soldier of this foreign army, this argument goes, and should be treated as a soldier under the Geneva Conventions. That means he should be removed from the civilian judicial system and interrogated and tried by the military.

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This argument essentially suggests that the police in New York or the FBI or the president somehow possesses the lawful authority from some unstated source, before guilt has been adjudicated, to suspend Ullah’s fundamental rights. This view of human liberty treats personal rights — even those guaranteed by the Constitution — as if they were gifts from the government offered in return for good behavior. Yet it defies history and the plain meaning of the Constitution.

Ullah’s rights to legal counsel and to a jury trial are expressly guaranteed by the Constitution; hence, no government official, no matter how powerful or well-intended, can interfere with them. The right to counsel attaches whenever anyone is confined against his will, charged with a crime or interrogated by authorities — whichever occurs first. The right to a jury trial attaches whenever the government wants the life, liberty or property of any person. The constitutional language guarantees these rights to every “person” — not citizens, not Americans and not just good people.

In Ullah’s case, the harm authorities say he caused occurred in the U.S. — while he was physically and lawfully in the U.S., where he was apprehended — so it is extremely unlikely that the crowd that denies the supremacy of the Constitution will get its way.

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The failure to respect Ullah’s rights because he has said he was inspired by a foreign power would commence a slippery and horrific slope, down which any person who is hated or feared or appears foreign or different or misunderstood at any given moment might be pushed.

As a practical matter, the NYPD and the FBI are far better at gathering evidence than the military, and federal prosecutors are far better at getting convictions than are their military counterparts. It is a Hollywood-infused myth that Guantanamo Bay produces results. It does not. Khalid Sheikh Mohammed has been waiting in Gitmo for 15 years for his military trial.

When voices in the government clamor for the removal of fundamental liberties, it is often to mask the government’s own failures. I have argued for many years that government surveillance will turn us into East Germany — a modern-day totalitarian society that collapsed in 1989. I have also argued that surveillance doesn’t work. The place in which the Monday explosion occurred is one of the most video-surveilled in New York. Do the police watch these videos in real time as was promised when the cameras were installed? They do not.

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As well, Ullah’s mobile phone recorded his whereabouts and communications prior to the explosion, also in real time, and the National Security Agency had all this, in real time. Did the NSA share it with the NYPD? It did not.

Some in government have asked what good the Constitution is if it fails to keep us safe. That is a bit silly, isn’t it? The Constitution is a piece of paper on which is written the supreme law of the land. Its purpose was to establish the federal government and to limit all government. But it is only as valuable to personal freedom as is the fidelity to it of those in whose hands we repose it for safekeeping. If the people we have hired to preserve, protect and defend the Constitution can cut corners to get to bad people, what will protect us when they want to cut corners to get to the rest of us?

When President Abraham Lincoln cut constitutional corners during the Civil War, he was unanimously rebuffed by the Supreme Court. The case, Ex parte Milligan, involved a civilian whom the government sought to try in a military court. The high court wrote: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”

This danger of the mob’s approving the curtailment of constitutional protections for unpopular monsters is as real today as it was after the Civil War. We must vigorously guard against it.

Reprinted with the author’s permission.

 

Abuse of Law   1 comment

Did you know it is against federal law to share your Netflix password with a friend? Netflix doesn’t really care so long as you’re not selling the password, but the federal government does. They haven’t prosecuted anyone for it, but … similar to the law that makes it illegal to ride a horse drunk in Fairbanks, Alaska … you could be the test case for it. It doesn’t matter if Netflix has an issue with it.

Related image“Ignorance of the law is no excuse.”

Really? That’s a pretty troubling statement when you’re standing in a country with so many laws that it is impossible to count them all. Forget about reading them and knowing the fine print. When was the last time you even looked at a complete set of federal, state, and local codes setting forth tens of thousands of criminal violation that could send you to jail? There’s a whole room in the State courthouse to house it. It’s enormous and I’m am told by the curator that it is already out of date within days of it being fully stocked with the latest documents.

Very few Americans — not even lawyers — know all the laws and regulations that could send people to jail. Yet, America’s judges don’t let that stop them. They’re perfectly fine with lock people up for doing something they had no idea was illegal.

That’s unfair and flies in the face of the rule of law.  A couple of weeks ago, I was someplace where I could get cell phone reception, but not Internet and I really needed lunch. The problem was I had no money in my checking account and I couldn’t go to my bank in the time allotted for lunch. So, I called my son, who is one of the most honest people in the world and asked him to log into my bank accounts using my password and transfer $30. I told him to destroy the information when he was done with it. Then I ate lunch. The problem is that the Computer Fraud and Abuse Act of 1986 bans intentionally accessing a computer “without authorization,” and the Supreme Court has recently declined to hear a case from the 9th U.S. Circuit Court of Appeals, United States v. Nosal, that held that password sharing could be prohibited by the Act. Although the majority opinion did not explicitly mention innocent password sharing, the dissent noted that the lack of any limiting principle meant that the majority’s reasoning could easily be used to criminalize a host of innocent conduct … including my son acting as my proxy so I could eat lunch.

At sometime in the past, the rationale for the maxim that “ignorance of the law is no excuse” was to give people an incentive to educate themselves about legal requirements. That was fine when there were few laws and they were mostly discoverable by using common sense, but any law student can tell you that to study all the laws in the United States would take years and barely scratch the surface, which is why lawyers specialize in areas of the law rather than in the whole thing.

Another rationale was to prevent people from escaping criminal penalties by claiming ignorance, even when they actually knew they were breaking the law. Again, that might have made sense in ancient times when there were only a few dozen crimes on the books and all of them involved morally blameworthy conduct like murder, arson, or rape. Today, the law has grown so complicated, and the relationship between law and morality so attenuated, that these supporting rationales no longer make sense. There have been multiple attempts to count the number of federal crimes, including by the Department of Justice, and no one has yet succeeded. Title 18 of the US Code, which governs crimes and criminal procedure, has over 6,000 sections, and it is estimated that there are more than 4,500 federal crimes and over 300,000 agency regulations containing criminal penalties. That doesn’t include the dizzying array of state and local criminal codes. Ignorance without excuse is pretty much assured.

The increasing criminalization of morally blameless conduct makes the punishment of innocent mistakes even more likely. For example, federal law makes it illegal to possess the feather of any native migratory bird even if one just picks it up off the ground. The potential penalties for doing so include fines and even time in prison. Think federal prosecutors would exercise their discretion to prevent miscarriages of justice under such obscure laws? Yeah, right!

Former Indianapolis 500 champion Bobby Unser was convicted of illegally driving his snowmobile in a National Forest Wilderness Area in 1996 after he and a friend were stranded in the mountains during a blizzard, and forced to take shelter in a barn while suffering from hypothermia. Reconstructing their meandering path in whiteout conditions, prosecutors concluded they had strayed onto federal land and convicted Unser of the misdemeanor crime of operating a snowmobile in a national wilderness area. While that probably didn’t affect his racing career, if he had a job that was more sensitive to misdemeanors, he might have been unemployed immediately upon his conviction … for taking shelter from a storm in whiteout conditions so as to avoid death.

Even people attempting to perform virtuous acts have been persecuted by overzealous regulators. In 2009, Robert Eldridge, a fisherman from West Chatham, Massachusetts, faced up to a $100,000 fine and a year in prison for interference with a protected marine animal after he freed a humpback whale that had been caught in his fishing gear. He escaped with a comparatively small $500 fine after pleading guilty, but his altruism could have cost him his livelihood and prison time.

Image result for image of ignorance of the law is no excuseMore recently, Alison Capo also faced a year in prison after her daughter rescued a federally protected woodpecker from the family cat. The two were apprehended by a U.S. Fish and Wildlife Officer who overheard them talking about the bird while shopping for a suitable container at a Lowe’s home improvement store (Her initial fine of $535 was ultimately rescinded by the agency, claiming it was a “clerical error.”).

And it gets worse than that because now people are supposed to know the laws in other countries and assure that whatever they purchase online was in compliance with those laws.

Subjecting well-meaning homeowners, desperate snowmobilers, innocent password sharers, and countless other blameless Americans to prosecution for conduct that no reasonable person would know was illegal doesn’t advance the cause of justice. It undermines it. If the government cannot even count all of the criminal laws it has enacted, how on earth can citizens be expected to obey them?

Posted December 21, 2017 by aurorawatcherak in Common sense

Tagged with , , ,

The Rule of Law   Leave a comment

Immigrant Children and the Rule of Law

Earlier this week, Attorney General Jeff Sessions announced that in six months, the Department of Justice will begin the long process for deportation proceedings against 800,000 young people who came to America as babies and young children in the care of their parents and others because those entries into this country were and remain unlawful.

Source: The Rule of Law

When President Barack Obama signed numerous executive orders attempting to set forth the conditions under which illegally immigrated adults whose children were born here could lawfully remain here, he was challenged in federal court and he lost. Sessions believes that the government would lose again if it declined to deport those who came here illegally as babies and young children.

Here is the back story.

Shortly after President Obama formalized two programs, Deferred Action for Childhood Arrivals (commonly known as DACA) and Deferred Action for Parents of Americans (commonly, DAPA), in a series of executive orders, the U.S. Court of Appeals for the 5th Circuit ruled that DAPA — the orders protecting undocumented immigrants who are the parents of children born here — was unconstitutional.

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Before signing his executive orders, Obama tried to persuade Congress to amend federal immigration laws so as to permit those who came here illegally and bore children here and those who came here illegally as infants to remain here with work permits, high school diplomas, Social Security numbers, jobs and other indicia of stability and permanence. After Congress declined to vote on the Obama proposals, he authored his now-famous DACA and DAPA executive orders. He basically decided to do on his own what Congress had declined to do legislatively.

But Obama’s executive orders were not novel; they merely formalized what every president since Ronald Reagan — including President Donald Trump — has effectively done. Each has declined to deport undocumented immigrants who bore children here or who were brought here as young children. President Obama alone showed the courage to put this in writing, thereby giving immigrants notice of what they need to do to avoid deportation and the government notice of whose deportations should not occur.

Numerous states challenged Obama’s DAPA orders in federal court. The states argued that because they are required to provide a social safety net — hospital emergency rooms, public schools, financial assistance for the poor, etc. — for everyone within their borders, whether there lawfully or unlawfully, DAPA was increasing their financial burden beyond their ability or will to pay. Stated differently, they argued that the president alone was effectively compelling these states to spend state tax dollars against the will of elected state officials. The states also argued that DAPA was such a substantial deviation from the immigration statutes that Congress had written that it amounted to the president’s rewriting the law and thereby usurping the constitutional powers of Congress.

A federal district judge agreed with the states, and the U.S. Court of Appeals for the 5th Circuit affirmed that ruling (emphasis Lela). That court held that by increasing the financial burden on states against the will of the elected officials of the states, the president had violated the Guarantee Clause of the Constitution — which guarantees a representative form of government in the states, not one in which a federal official can tell state officials how to spend state tax dollars

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It also ruled that by enforcing his executive orders instead of the laws as Congress wrote them — those laws mandate deportation for all who came here illegally, no matter their age or family status — the president was failing to take care that all federal laws be enforced (emphasis Lela). That behavior, the court ruled, violated the Take Care Clause of the Constitution, which compels the president to enforce federal laws as they were written, not as he might wish them to be.

The Supreme Court declined to intervene by a 4-4 vote, thereby permitting the 5th Circuit decision to stand undisturbed (emphasis Lela).

When Sessions announced this week that DACA will not be followed after March 5, 2018, he said he is confident that DACA is unconstitutional for the same reasons that the courts found DAPA to be unconstitutional. Yet there are moral, constitutional, legal and economic arguments on this that will be an obstacle to the cancellation of this long-standing program.

Morally, most of the beneficiaries of DACA are fully Americanized young adults who know no other life but what they have here and have no roots in the countries of their births. Many are serving the U.S. in the military. Constitutionally, DACA has effectively been in place since 1986, and 800,000 people younger than 40 have planned their lives in reliance upon it. Legally, once a benefit has been given by the government and relied upon, the courts are reluctant to rescind it, even though the 5th Circuit showed no such reluctance.

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Economically, the summary removal of more than three-quarters of a million people from the workforce would have serious negative consequences for their employers and dependents and for delicate economic forces, and there would be negative economic consequences to the government, as well, as each claimed hardship case — each person whose deportation is ordered — is entitled to a hearing at the government’s expense.

Now many Republican and Democratic lawmakers in Congress want to make a close version of Obama’s executive orders with respect to immigrant infants (DACA) the law of the land — something they declined to do when Obama was president. Were this to happen, the tables would be turned on Trump. He would be confronted with the constitutional duty of enforcing a federal law that he has condemned.

Would he live up to his oath of office?

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