Jun 28, 2013 | Constitution, Liberty Articles, Take Action
By Dr. Harold Pease
Recent revelations on either the National Securities Administration’s seven-year accumulation of your phone calls and email massages, or, the 35 years of FISA court’s special surveillance requests on 34,000 citizens, has caused many to look to the Constitution for protection from their own government. Is government spying on its own citizens constitutional?
In the Constitution the words national security are not used but common defense is mentioned twice, first in the Preamble, which is but a statement of intent and is not generally seen as usable for codification of law. Article I, Section 8 houses the four powers of congress: to tax, to pay the debts, to provide for the general welfare and to provide for the common defense. Sections 2-9 are the qualifiers on what is meant by common defense so as to limit government’s inclination to define everything as common defense, as it now has national security. All the war powers belong to congress alone. Only after a war is declared does the president have commander and chief responsibilities over the military. Unfortunately for big government advocates, collecting and storing data on its citizens is not cited or even alluded to.
Fortunately for us this behavior is specifically forbidden in the Fourth Amendment which reads: “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 issue, 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 specifically designed to prevent government spying.
The right of the people to be secure in their persons, houses, papers against unreasonable searches and seizures shall not be violated is the strongest possible language conceivable. In their day the British government used what was called “a general search warrant” which allowed their agents to harass the people thought to be doing, or saying, something disapproved by the government. No such flexible interpretation was allowed in our government. In our day, computers are your papers. Simply confiscating them and storing them, perhaps indefinitely, should be no different than the police walking into your home and taking any letters, or messages, that you have received, or are about to send, from you and housing them in police headquarters in case they should need them in a later day. Moreover, unreasonable was not to be decided by the police.
As a first principle your house and papers are off-limits to the government. All searches are unreasonable without probable cause that you are doing something harmful to others. Probable cause must be decided independently from the police unless you are in the act of doing something unlawful and immediate police response is necessary. Elected judges exist for assessing probable cause. Should they get too cozy with the police there exist other checks to keep them restrained as, for example, their defeat in the next election. As initially interpreted there were to be few federal laws hence few unelected federal justices. This was to be a state, county, or city matter. Rousted out of a good sleep in the middle of the night, judges were not likely to be too happy having to assess frivolous charges.
There exists no constitutional authority for a blanket extraction of all your electronic data. Judges swear an oath to preserve the Constitution. They are not to perform with a private view outside that document. Notice also the specific restrictive phraseology with respect to this power; they are to particularly describe “the place to be searched, and the persons or things to be seized”—evidence that something unlawful happened. There is no authority for a “fishing expedition.” NSA spying on its own citizens without a search warrant is clearly unconstitutional.
So what of the government’s secret FISA court where over the last 35 years special federal (unelected) judges have only turned down 11 spying requests out of 34,000 made. Isn’t that based upon probable cause? Not necessarily! The request is more likely made because they lack probable cause and wish to find it by accessing your private records or conversations. We might think more positively toward the existence of the secret FISA court were it not for three big negatives: judges are not elected and accountable to the people, the court operates behind an impenetrable double-door in a vault-like room in total secrecy, and the rules empowering the spying activities are different than those allowed other judges in other federal courts. In any other court, for an ordinary surveillance warrant, a judge must find that a suspect “is” involved in a crime. Under FISA the standard is lowered to “may be involved.” An ordinary wiretap runs 90 days. FISA taps can last a year. A suspect under ordinary criminal surveillance “must be told” about it eventually but not under FISA. And finally, if prosecuted, a defendant is never allowed to see the top-secret warrant applications used against him, which is a probable violation of the Six Amendment as well.
Moreover, the FISA court violates the Fifth Amendment in that the accused is, in a very real sense, forced to be a witness against himself—perhaps the only witness. It is his papers, emails, and phone conversations that convict him.
No federal government! You must tear down your $2 billion NSA Bluffdale, Utah spy facility capable of storing a Yottabyte of our private information against our will. You must do likewise to your Oak Ridge plant that houses the fastest computer in the world designed to analyze our private data for your own purposes; and the latest revelation—to share that information with seven sister federal agencies. Spying on your own people is a blatant violation of the Constitution. You may argue that you are only protecting us from bad people out there but who protects us from you? Fortunately the Constitution does if only enough will begin to use it in their voting practices and those we elect will honor their pledge to protect it, and us, from you.
Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
Jun 25, 2013 | Constitution, Liberty Articles, Take Action
By Dr. Harold Pease
With the recent outbreak of establishment media coverage of the National Security Administration’s, NSA, spying on over 100 million Americans, recording their telephone conversations, emails, and other electronic messages for the last seven years, the attention has turned to whatever happened to congressional or judicial oversight. Defenders of the spying are assuring us that such is in place and we should not worry. The government’s surveillance of its own citizens is old news dating back to at least 35 years as is the government’s secret court, the FISA court, authorizing them to do so. I have told my students about this court for at least 25 years.
This secret court began during the Jimmy Carter Administration with the Foreign Intelligence Surveillance Act, in 1978. Initiated by Ted Kennedy it had strong bipartisan support. It was created as a response to President Richard Nixon’s usage of federal resources to spy on political activist groups during his tenure as president, which likely violated the Fourth Amendment. Ironically, the solution, legalized spying on our own citizens, was a greater violation of the Amendment than before. Few voices opposed giving the government extra spy power during the “Cold War” when it seemed that the whole planet was falling under the totalitarian influence of communism but, once legalized, the surveillance moved to other groups notably the socialists who opposed the Vietnamese War.
CBS News commentator Dan Rather, in his program, Eye on America, was one of the first to speak out on the intricacies of this secret court and he did so in 1994–nineteen years ago. He correctly spoke to the issue that all federal courts are supposed to be open, that the Constitution has no place for secret courts. His program opened, “Chances are you have never heard of this court because it does operate in secret.” The FISA court “holds no public hearings, classifies its rulings top secret and has wide freedom to order domestic spying in the name of national security.” Alan Deshowitz, a defense attorney at the time, was cited as having said, “The idea of there being a secret court in America is so UN-American and the end result is that the rights of American citizens are being violated by this court. What is at stake here is the liberty of the American people. Secrecy and liberty are incompatible.”
The 1994 program continued, “Behind the stone walls of the Justice Department’s sixth floor the court sits in an ultra-high security vault, guarded by impenetrable double doors. There, seven federal judges hear surveillance requests from the FBI, the CIA, and the Department of Defense. And it appears the court has never heard a request it didn’t like. Over the years the government has asked for 7,500 surveillance warrants. The number refused by the court is zero. The government has never been denied.” In 1994 this amounted to two surveillance approvals on U. S. citizens a day. There was no follow up on how the information obtained was used in the defense of freedom.
It gets worse, “The questions “under FISA aren’t quite as tough as they are in even an ordinary criminal case. In any other court for an ordinary surveillance warrant a judge must find that a suspect is involved in a crime. Under FISA the standard is lowered to ‘may be involved.’ An ordinary wiretap runs 90 days. FISA taps can last a year. A suspect under ordinary criminal surveillance ‘must be told’ about it eventually but not under FISA. And finally, if prosecuted, a defendant is never allowed to see the top-secret warrant applications used against him.” Ironically, all this is happening “in a windowless vault just beyond Constitution Avenue,” the program concluded.
To date the secret court has reviewed 33,900 requests denying, in its 35-year history, only eleven—so much for oversight. This means that 968 Americans are approved for secret spying, through wiretapping and other surveillance techniques, each year with only one rejection. This number is not to be confused with the 100 million Americans subjected to secret blanket extraction of their electronic data for the last seven years for some future purpose by the NSA. These are they where your Congress, through FISA, authorized actual study of your private information without your permission or knowledge. I guess that is okay as long as it is on someone else. The problem is, it may be on you for the last anti government thing you said or wrote. How Orwellian is this? Tell your congressman to end the FISA secret court. Secrecy and liberty are incompatible.
Jun 15, 2013 | Constitution, Globalism, Liberty Articles, Take Action
Dr. Harold Pease
Why is the establishment press just now acknowledging the idea that our own government has been spying on us when credible witnesses and whistleblowers have offered documentation on this for years? Everyone is now talking about the huge secret spy NSA facility in Bluffdale, Utah the size of five capital buildings scheduled for completion this September, as though this is something new. I had myself photographed in front of the site last September. The networks and Congress seemed shocked at the revelation but Congress had to authorize the $2 billion facility expenditure for Bluffdale and a similar amount for a sister NSA facility in Oak Ridge, Tennessee. All of this is simply old news.
What follows is what we knew more than a year ago. Wired magazine front-paged this story a year ago last April when it wrote: “Deep in the Utah desert, the National Security Agency is building the country’s biggest spy center. It’s the final piece of a secret surveillance network that will intercept and store your phone calls, emails, Google searches… (Watch what you say).”
Noted author James Banford, one of America’s leading authorities on the National Security Agency, then wrote, “ Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks… Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter” (“The NSA Is Building the Country’s Biggest Spy Center. Watch What You Say.”) The project is code named “Stellar Wind.”
In the scheme of things, launched in 2004 under the George W. Bush Administration, but vastly expanded under Barack Obama, the NSA Bluffdale facility will house all electronic information in the world. That is why it is being equipped to hold a Yottabyte of information. A Yottabyte is 1,000 Zettabytes (the number 1 followed by 24 zeros — 1,000,000,000,000,000,000,000,000). So Bluffdale is primarily a storage facility. The philosophy is that the “more data, the more telephone calls, the more email, the more encrypted data that you have—the more patterns that you’re likely to discover.”
The NSA Oak Ridge facility houses the super computer, installed in 2006, capable of finding patterns and printing them out in milliseconds in a process code named “brute force.” The “goal was to advance computer speed a thousand fold, creating a machine that could execute a quadrillion (1015) operations a second, known as a petaflop—the computer equivalent of breaking the land speed record.” With upgrades the computer, called “jaguar for its speed, it clocked in at 1.75 petaflops, officially becoming the world’s fastest computer in 2009,” is housed in Building 5300. There “318 scientists, computer engineers, and other staff work in secret on the cryptanalytic applications of high-speed computing and other classified projects” (Cryptome, March 16, 2012, “NSA Decryption Multipurpose Research Facility”).
NSA Whistleblower William Binney said, “Domestically, they’re pulling together all the data about virtually every U.S. citizen in the country and assembling that information, building communities that you have relationships with, and knowledge about you; what your activities are; what you’re doing. So the government is accumulating that kind of information about every individual person and it’s a very dangerous process.” He estimated that one telecom alone was sending the government an “average of 320 million logs every day since 2001.”
So, when the Los Angeles Times reported on June 6, 2013 that “Government is tracking all U.S. phone calls,” that “The National Security Agency has stored data on calls to and from nearly every American for 7 years in search of patterns suggesting terrorist activity,” and that officials still say that they are not eavesdropping, it is still a lie, a matter of public record, and thus old news. It is great to see the establishment press catch up. Now who authorized these millions of unconstitutional warrant-less wire tapes on you and your friends and who signed off on funding the billions of dollars for these facilities? Will the Congress catch-up too, investigating what should have been looked into years ago? Not unless you push them.
Pease visits spy facility Sept. 20, 2012 months before establishment news finally broke the story.
Jun 11, 2013 | Constitution, Economy, Healthcare, Immigration, Tea Party
By Dr. Harold Pease
Citing the thorough documentation provided by The Federation for American Immigration Reform (FAIR), the Tea Party Patriots has officially expressed strong reservation with respect to what they now dub the Gang of Eight Amnesty Immigration Bill. They warn that S.744 “dramatically increases legal immigration, while doing virtually nothing to improve border security or immigration enforcement.” It essentially legalizes that which used to be illegal and goes far to legitimizing open borders. If the establishment press shared with Americans what we share below it would have no chance of passage. Unfortunately they do not.
Dissecting the over 800-page bill section-by-section, four concerns are readily apparent. First, the bill “does not secure the border or strengthen national security.” Instead, it “rewards law-breaking and encourages more illegal immigration.” Twelve provisions documenting the above are noted, complete with section and page numbers. Among them are: the granting of legal status by the Department of Homeland Security “before any measure to secure the border has been taken.” It does not “require a biometric exit system “ to “track aliens who enter and leave the U.S., per current law.” It does not “require any additional border fencing or completion of current border fence requirements.” It does not require illegals “to pay back taxes before getting legal status…it only requires … applicants to pay back taxes ‘assessed’ at the time of application.” The new bill “does not require illegal aliens to learn English before receiving amnesty or even a green card.” It does not “prevent future illegal immigration, ensure fiscal sustainability of the influx of immigrants to the United States,” nor does it “end abuse of prosecutorial discretion or administrative amnesty by the Obama administration.
It does, however, increase access for illegal immigrants to the scarce jobs of U.S. workers. Moreover, it does allow “states to grant in-state tuition to illegal aliens—not the aliens who received amnesty, but all illegal aliens who arrive in the future.”
Second, the bill “does not improve immigration enforcement or public safety. Instead, it undermines immigration enforcement and is riddled with waivers and loopholes:” DHS is allowed to wave—three or more times—“multiple misdemeanor convictions when granting amnesty.” These include: “gang-related crimes and gang membership; three or more drunk driving offenses; domestic violence, stalking, child abuse, and violation of protective orders; committing crimes of moral turpitude; violating federal or state drug laws; trafficking in passports; providing fraudulent immigration services; trafficking immigration documents, including document fraud; prostitution; misrepresenting a material fact to procure visas or other immigration benefits; violating student visas; falsely claiming citizenship; and illegally re-entering the U.S. after deportation (which is a felony).”
The proposed new law “delays implementation of E-Verify to prevent illegals from being employed and voids state and local E-Verify laws. Amazingly it even creates “criminal penalties and a $10,000 fine for any federal official who discloses information found in RPI applications in violation of the law.” And it does not “require the deportation of a single illegal alien” whose “application is denied—for any reason.” The bill authorizes “illegal aliens to bring class action lawsuits against the government” and “allows the Department of Homeland Security to appoint counsel to illegal aliens fighting deportation at taxpayer expense.”
The third major concern is that the “Gang of Eight” Amnesty Immigration Bill, according to the report, “does not prioritize the American worker at a time when 22 million Americans are unemployed or underemployed. Instead, S.744 hurts the American worker:” It does this by tripling immigration within a decade. In addition it “increases the number of guest workers by 50 percent over the decade after enactment.” It enlarges the admission of additional unskilled workers each year to 200,000 and triples the number of skilled workers who may enter. “S.744 creates a new bureaucracy, the Office of Legal Access Programs, to provide illegal aliens with ‘legal orientation programs’ that help fight deportation. The bill requires DHS to make these programs available to the aliens within 5 days of being taken into custody. Section 3503 also authorizes the Office of Legal Access Programs to provide services, including legal services, to aliens in deportation hearings.” All this, of course, dramatically increases “competition for Americans entering or working in those fields.”
Finally, fourth, S.744 “does not prevent American taxpayers from subsidizing illegal immigration. In fact, it makes the current problem worse:” When permanent resident status is given “the alien need only demonstrate income or resources equal to 125 percent of the federal poverty level” to get assistance so our welfare system will be flooded. The bill also “creates a ‘slush fund’ for nonprofits that help implement the amnesty. Section 2537 authorizes DHS to award newly created ‘Initial Entry, Adjustment, and Citizenship Assistance’ (IEACA) grants to nonprofit organizations that help illegal aliens navigate the amnesty process. The bill appropriates $100 million for IEACA grants for the first five years and ‘such sums as may be necessary for fiscal year 2019 and subsequent fiscal years’.”
Who was it that said, “We have met the enemy and he is us?” The Tea Party Patriots have good reason to oppose this bill. It impacts all three of its core values: limited constitutional government, the free market, and fiscal responsibility. No piece of legislation could erase our southern border more effectively. A foreign power could not do more damage to our homeland security than our own U.S. Senate does in this one bill which now goes to a, hopefully, more responsible House of Representatives.
Jun 4, 2013 | Constitution, Healthcare, Liberty Articles, Take Action, Taxes
By Dr. Harold Pease
The Constitution is exceptionally clear on the origin of all taxes. “All bills for raising revenue shall originate in the House of Representatives,” not the Senate (Article I, Sec. 7). When is the House going to protect its powers from the Senate’s intrusive attempts to steal its power? Recently the Senate passed the “Marketplace Fairness Act” by a vote of 69-27, an Internet sales tax, giving states the authority to require on-line retailers, with no physical presence in those states, to collect sales taxes. Americans will pay more taxes with this bill than without. It is a bill for raising revenue and it did not originate in the House as mandated by the Constitution.
To put the Senate in its constitutional place the House should never take this bill up. Instead, if they feel such legislation is needful, they should originate their own bill after which invite the Senate to take a new bill through the committee process and to the floor once again. I might also suggest not doing so for a year or two just to make the message stronger. “You are infringing on our constitutional jurisdiction.” If the Senate will not do so, the House should consider the bill non-existent. Under no circumstances should they accept this bill as appropriate action on the part of their sister law-making body. Retailers, on the other hand, should refuse to pay this tax and challenge it in the courts on the constitutional grounds cited above.
Unfortunately, this is becoming a practice on the part of the U.S. Senate. Yet another infringing piece of legislation has also just passed the Senate Judiciary Committee in a 13-5 vote, the so-called “Gang of Eight” immigration bill, S.744, obviously originating therein. The Heritage Foundation estimates that this bill will cost taxpayers a net $6.3 trillion above what illegals contribute through taxes over the next 50 years providing benefits for millions now living in the United States. There may be debate over the numbers but what is clear is that the bill did not originate in the House of Representatives as constitutionally required and that Americans will pay more taxes with this bill than without it. Therefore it constitutes an unconstitutional tax.
The worst of all such recent intrusive taxes was “The Patient Protection and Affordable Care Act,” known as Obamacare, also originated in the Senate, not in the House as constitutionally required. Weeks ago I wrote of the extensive efforts on the part of the Senate Majority Leader, Harry Reid, to cover this up following the judicial decree of Justice John G. Roberts, Jr. proclaiming it a tax when the administration had argued otherwise. The establishment media should have been all over this story and was not. Obamacare may be the only revenue-raising bill in American history originated and processed by the Senate alone. Nothing could be more unconstitutional!!
So why does this matter, a tax is a tax? For thousands of years governments taxed their citizens with no limits. Rulers lived lavishly off the wealth extracted from their poor subjects with little or no mercy toward them—lavish physical structures and frivolous wars of conquest were too often the norm. The Founders wisely took this power from the rich and gave it to the poor by requiring that the poor, then the majority, had to consent to any taxation over them. The power to tax is the only constitutional power exclusively given to the masses. The House of Representatives was the only branch of government designed to actually represent them as it is based upon population. The Senate was to represent the states, the people only indirectly.
As far as I know the United States is the first, possibly the only, country in world history that puts its tax base with the masses who pay the taxes. It is a priceless freedom. If we are over-taxed in the United States we have chosen to be so and one body alone is responsible—The House of Representatives. No tax can constitutionally originate with the President or the Supreme Court, (even if Justice John G. Roberts, Jr. says that it is okay), not even the Senate, although it can modify as on other bills once originated by the House. The House is also in charge of spending. We must not let this freedom dwindle or allow the line between the two legislative branches to be blurred into oblivion.
By letting “origin” slide in these three matters, the House looses its clear distinction on the origin of taxes and the people their right of first approval of taxation for generations yet unborn and probably forever. If left unchallenged these three offending bills, one already implemented, severely damage Article I, Section 7 of the Constitution. All involved are under oath to preserve the Constitution. There is nothing in the Constitution more clear than this. Liberty is lost one piece at a time. It is also restored one piece at a time. Pass this around.
May 27, 2013 | Constitution, Liberty Articles
By Dr. Harold Pease
On May 31,1913, one hundred years ago this month, the U.S. Constitution was changed by the Seventeenth Amendment nullifying the most essential safeguard and ingredient in our remaining a republic. Although our “Pledge of Allegiance to the Flag” still uses the word republic we, on this date, took a giant step into a democracy from a republic and in doing so initiated the era of purchased U.S. Senators, something the Constitution had protected us from heretofore by having senators chosen by the state legislature rather than by the masses.
Some unfamiliar with our history may not know that the Senate was specifically designed to protect state authority from federal government intrusion and to cool the emotional whims of the peoples’ branch—the House of Representatives. To accomplish this, and to keep this body committed to, and aware of state needs, U.S. Senators were to be elected, not by the people at large, as was the House, but by the state legislatures themselves. All prospective law was to be evaluated from two perspectives, the needs of the populace and the needs of the states. Why else would we need two branches of government essentially doing the same thing—making law? The 17th Amendment reduced law making to but one perspective virtually eliminating the perspective of the states.
We live under two political systems: one primarily national in function, the other primarily domestic. It’s called federalism—the two share power and are equal. Neither was to be subservient to the other and each was to have separate duties. Thomas Jefferson explained it best when he said, “The states are not subordinate to the national government but rather the two are coordinate departments of one single and integral whole…. The one is domestic the other the foreign branch of the same government.” Think of this relationship as an ideal marriage, where neither partner is subservient to the other. Neither feels beneath the other, rather they are a team.
The Senate was specifically charged with ensuring federalism but could only do so if they were not subjected to the popular vote. Again, that essentially ended on May 31, 1913, when the 17th Amendment made the senate popularly elected and responsible solely to the emotion of the masses that tend to vote with their stomachs. Prior to this date each state sent the two, usually from their own members, most qualified and able to defend the interests of their state—not who was best funded, best looking, most charismatic, or worse, promised the most handouts to those less productive. These elections cost nothing and no one argued for term limits. It was not needed.
Today, because of this amendment, U.S. Senators must raise between 5 and 10 million for a successful senate campaign thus they are always campaigning and attention to local constituency is the key to their survival—not attention to their state legislature issues. Moreover, the candidate that spends the most money normally wins. The change allowed the moneyed interests to purchase U.S. senators, not the masses. The masses hardly care. “Indeed only about 60 percent of the general public can name one U. S. senator from their state, and only about 40 percent can name both of their U.S. senators” (Politics in America, Thomas R. Dye, Edition 13, p. 379). Some senators receive large sums from contributors outside their states enabling outsiders to help purchase their senator.
But the biggest obstacle to retaining our republic, and thus our liberty, is that there now exists no body whose principle duty is to keep the federal government harnessed to the powers listed in Article I, Section 8 of the Constitution and to protect Amendment 10 of the Bill of Rights that makes it clear that all power not listed remains with the people and the states. Without this body a republic deteriorates into a democracy, which deteriorates further into socialism, which goes into extreme debt because it can’t say no to the expensive whims of the masses. Sound familiar? We must rescind the 17 Amendment to the U.S. Constitution.
The New American said it best when it noted, “Today the federal government is involved in everything from our farms to our health and education, along with our sex lives (Viagra is covered by the prescription drug benefit for seniors, and contraception coverage is mandated under ObamaCare) and preschool programs for toddlers” (The April 1, 2013, p.39). Constitutionally all of this falls within state prerogative without a constitutional amendment authorizing the federal government to have these specific powers. If senators represented their states, as designed, they would have prevented this federal intrusion and the high taxes that come with it and we would be a much freer people. Moreover, the era of purchased U.S. senators would never have become the practice.
