Secrecy Versus a Free Society

by Jacob Hornberger, Future of Freedom Foundation

A Texas company named Lavabit exemplifies everything that the national-security state has done to our nation. Lavabit is an Internet company that provides encrypted email service for its customers. It recently announced that it was voluntarily shutting down its business rather than capitulate to the demands of the NSA and its FISA Court to grant access to its customer’s communications.

The details of this sordid episode are set forth in this article by Glenn Greenwald.

Although Lavabit can’t explain exactly why it’s shutting down, which is incredible in itself, it’s obvious that the company got served with one of those secret FISA orders requiring it to give the NSA access to its customers’ communications. Such orders command the recipient to keep the existence of the order secret, even from its own customers.

So, this is where the national-security state has brought America. We now live in a country where the government can secure secret court orders permitting officials to access everyone’s private communications. The people who are adversely affected are not even aware of it because the recipient of the order is prohibited from telling them. That means that the customers themselves never have an opportunity to object to the order because they’re never told of its existence.

Thus, it’s a fairly perfect scam because ordinarily the company receiving the secret order has no real incentive to oppose the order. After all, it’s the customers’ records that are sought. So, most companies will simply comply with the order and also comply with the court’s order to keep it secret.

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NSA Uses Loophole to Justify Collecting Domestic E-mail, Phone Calls

The National Security Agency (NSA) is using a “secret backdoor” to conduct warrantless searches of the e-mails and phone calls of American citizens, the Guardian (U.K.) reports. As with earlier reports, this latest revelation comes from information given to the newspaper by former NSA contractor Edward Snowden.

Spencer Ackerman and James Ball, reporting for theGuardian, write that a rule change that was previously unreported is giving the NSA the inroad it needs to monitor “individual Americans’ communications using their name and other identifying information.”

In a statement to the Guardian, Senator Ron Wyden (D-Ore.) reportedly said that this rule change makes it possible for the NSA to conduct “warrantless searches for the phone calls or e-mails of law-abiding Americans.”

The regulatory restatement relied on by the NSA to justify their unconstitutional surveillance was “approved in 2011” by the Obama administration, in direct contradiction to the president’s commitment to protect the constitutionally protected privacy of the American public “from the NSA’s dragnet surveillance programs.”

The federal spy apparatus is relying on Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (FISA). This provision purports to grant the government the “authority to target without warrant the communications of foreign targets, who must be non-US citizens and outside the US at the point of collection.”

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Null and Void from the Start

Nullification is the doctrine holding that actions of the federal government that are passed, imposed, or exercised in excess or abuse of the express authority granted in the Constitution are not enforceable. If there is no proper foundation for the action it is null and void, and a state has the right, in fact the duty, to refuse to enforce it on its people. Nullification is an essential principle to ensure that the People are insulated from federal tyranny.

Nullification is a legal theory rooted firmly in constitutional history and based on the very limitations articulated in the US Constitution, specifically the Tenth Amendment and Article VI, Section 2 (“Supremacy Clause”). It is based on the federal nature of our government (separation of powers; “dual and competing sovereigns”), on the Supremacy Clause (only those laws made “in pursuance to the Constitution” are supreme and therefore trump state law), and most strongly, on the compact nature of the Constitution (the states formed the Constitution as a compact, agreeing to delegate some of their sovereign power – certain specified powers – to the federal government and reserving all other powers to themselves. Each state, as a party to the compact, has a “right to judge for itself” the extent of the federal government’s powers).  The compact – the social compact – that the states signed in forming the Union in 1789, is similar to contract law. Contracts, as we all know, outline the obligations and benefits to each of the signing parties. The parties are likewise bound by the express language of the contract. We understand this theory and this issue of contract construction as we all have signed contracts. If one party attempts to change the terms or exceed authority under the contract, the other party can either chose to ignore the perverted exercise of contract power or can break the contract altogether.

The fundamental basis for government and law in this country, as in most societies, is the concept of the social compact (or social contract). Social compact is an extension of Natural Law (upon which our Declaration is based) which states that human beings begin as individuals in a state of nature and then organize into societies for mutual benefit. They create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively. James Madison confirmed the nature of the US Constitution as a social compact in Federalist No. 39.

The key features of a social compact are: (i) retention of natural rights; (ii) common defense of those rights; and (iii) limitation of government power.

Now, it is true that the compact assures that the Constitution and the laws made in pursuance to it (Article VI) shall be valued as the supreme law of the land, but the converse is equally true. All power not expressly granted is reserved by the States and on those objects, state law is supreme law. This is our system of dual sovereignty. That is the brilliant design feature of our American government system which our Founders believed would ensure the protection of our God-given rights. But unfortunately, our Founders thought the government could be trusted to respect its boundaries, to protect that “precious jewel” that is liberty. They believed that if the branches of government were “advised” that their particular actions were unconstitutional, they would quickly remedy the situation and undo what they had done.

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The Question

“A republic, if you can keep it!”

That was Benjamin Franklin’s response to a woman’s question at the end of the Philadelphia Convention: “Well, Doctor, what have we got — atyranny-montesquieu Republic or a Monarchy?”

A little over 200 years later, we are still struggling to keep it. And we are losing the battle to those that want a top down authoritarian central government with limited rights for We the People.

As human beings, rights and freedoms are our birthright, and nowhere else on earth has that been truer than in these United States. However, what is given at birth must be defended with blood, toil and treasure. Countless generations that came before us did just that, battling against all those who through force of arms or stealth would take them from us so that they could grow powerful at our expense.

Down through history, many have chosen to live as serfs, subjects or slaves, because all that was required of them was their willingness to live on their knees and be happy with a paltry share of this world’s abundance. They could simply submit to those that would decide for them what they could and could not do.

Submission is easy; resistance is hard. Submission requires nothing of us, while resistance requires everything.

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Big Business Gets Yet Another ObamaCare Delay That Individuals Don’t

by Michael Cannon, CATO Institute

“I didn’t simply choose to delay this on my own,” President Obama reassured the nation about his unilateral decision to delay ObamaCare’s employer mandate. “This was in consultation with businesses all across the country,” he said, as if that made the situation better instead of worse. Obama threw his “consultants” another bone when he decided to delay the reporting requirements the law imposes on employers, also until 2015. The president’s generosity toward large corporations will be financed by the American taxpayer. The Congressional Budget Office projects these delays will cost taxpayers another $3 billion in new government spending and reduce federal revenues by $9 billion, for a total increase in the federal debt of $12 billion. Yet the president fails to show the same concern for individual taxpayers. When the House of Representatives, including dozens of Democrats, voted to extend the same break to individuals by delaying ObamaCare’s individual mandate by one year, President Obama threatened to veto that bill. Bizarrely, he also threatened to veto another bill (approved by an even broader bipartisan majority) that would make legal hisillegal delay of the employer mandate.

So perhaps we should not be too surprised now that the New York Times reveals yet another delay the president approved at the behest of big business:

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Georgia Action Alert: Time to Nullify Indefinite Detention Locally

Across America, we’ve seen a growing movement resisting federal indefinite detention at both the state and local level.  You have the power to introduce this grassroots uprising to the Peach State and protect your fellow Georgians from the specter of federal kidnapping.

You don’t have to sit around and wait for the state to take action. You can help stop indefinite detention, right now, today,  while simultaneously putting pressure on lawmakers in Atlanta  to do the right thing next fall.

While the Georgia legislature has failed to interpose so far,  government bodies at the local level can step into the fray. Counties and cities can refuse to assist any federal attempts at indefinite detention in their jurisdictions. These measures will not only provide  practical protections for their citizens, they will send a strong message to state capitals and put the pressure on to nullify federal kidnapping at the state level in the next legislative session.

It’s going to take work to ensure that this is how things play out.  Here’s what you can start doing right now.

1.  Contact your local legislators – County, City, Town - and urge them to introduce model legislation in support of the Liberty Preservation Act.

local ordinance here: http://tenthamendmentcenter.com/legislation/liberty-preservation-act/

2.  Become a local leader.   If you’re dedicated to stopping federally sanctioned kidnapping

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Lexington TSA Manager Gets Busted For Doing What He Does At Work

LEXINGTON, Ky. – Police busted a TSA manager at the Blue Grass Airport and charged him with sexually abusing a coworker earlier this week.hinkle

According to court documents, the victim told police Shane A. Hinkle, 38, touched her breasts and put his hand down her pants twice on two separate occasions. The arrest report indicates the incidents all happened at the airport, and surveillance video captured some of the groping.

When I first read the arrest report, I couldn’t help but wonder what the big deal was. Perhaps he just thought he was doing a little on the job training.

In all seriousness, TSA agents across the United States subject hundreds of innocent Americans to this kind of behavior on a daily basis. In a very real sense, Hinkle went to jail charged with doing what he does at work every day. Only the fact that federal law and a badge authorizes his on the job behavior differentiates it from his alleged criminal acts. And in some weird parallel universe, that makes groping OK.

Wrap your head around this: a federal stamp of approval legitimizes sexual abuse.

I don’t mean to minimize the victim’s experience. I can’t imagine the humiliation and fear she must have felt. My point is that airline passengers who must endure strangers touching their breasts, butts and genitals at the airport feel degraded and humiliated as well.

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Obama’s Feeble Failing Crusade Against Marijuana Nullification

The feds just don’t know when to quit.

Even as state after state tells the feds that their marijuana laws are null and void, the Obama administration still insists on blowing hundreds of millions of taxpayer money to deny the will of the people, and to crack down on patients and caregivers.

This is the legacy of Barack “I would not have the Justice Department prosecuting and raiding medical marijuana users” Obama. My oh my, how six years can change a man!

Obama pursues ridiculous policies that he doesn’t even believe in because he needs to grease his cronies. After Obama sold his soul to the pharmaceutical industry to get them on the side of his health care takeover, he now needs to do their dirty work and strong arm their competitors. As usual, the corporations and big government win, while sick patients and the taxpayer lose. That’s medicine in America in a nutshell.

The good news is that crooks like Obama are losing.

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Nullification is a Constitutional Principle

There is no easier way for tyranny to take hold than for a People to remain silent when they know, or should know, what their rights are. There is no easier way for a government to usurp the natural rights of a People to govern themselves than for them to stand by and let that government legislate when it has no authority to do so.

The early colonists certainly didn’t miss an opportunity to stand up for their rights. In fact, the Sons of Liberty formed (much like today’s Tea Party and Tenth Amendment Center) to point out where Britain was violating their rights and to help organize opposition and protest. Samuel Adams, the leader of the Sons of Liberty in Boston, wrote the following in 1769 with these words:

DEARLY BELOVED,

REVOLVING time hath brought about another anniversary of the repeal of the odious Stamp Act,—an act framed to divest us of our liberties and to bring us to slavery, poverty, and misery. The resolute stand made by the Sons of Liberty against the detestable policy had more effect in bringing on the repeal than any conviction in the Parliament of Great Britain of the injustice and iniquity of the act . It was repealed from principles of convenience to Old England, and accompanied with a declaration of their right to tax us; and since, the same Parliament have passed acts which, if obeyed in the Colonies, will be equally fatal. Although the people of Great Britain be only fellow-subjects, they have of late assumed a power to compel us to buy at their market such things as we want of European produce and manufacture; and, at the same time, have taxed many of the articles for the express purpose of a revenue; and, for the collection of the duties, have sent fleets, armies, commissioners, guard acostas, judges of admiralty, and a host of petty officers, whose insolence and rapacity are become intolerable. Our cities are garrisoned; the peace and order which heretofore dignified our streets are exchanged for the horrid blasphemies and outrages of soldiers; our trade is obstructed ; our vessels and cargoes, the effects of industry, violently seized; and, in a word, every species of injustice that a wicked and debauched Ministry could invent is now practiced against the most sober, industrious, and loyal people that ever lived in society. The joint supplications of all the Colonies have been rejected; and letters and mandates, in terms of the highest affront and indignity, have been transmitted from little and insignificant servants of the Crown to his Majesty’s grand and august sovereignties in America.

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Personal Liberty Laws for Whistleblowers?

Over the past few months, a name that has become well-known among Americans following politics is Edward Snowden.  Mr. Snowden caused shockwaves throughout the country with his leaking of information in regards to the NSA’s warrantless domestic surveillance program.  Supporters and detractors alike have had strong opinions on the matter, and the issue does not appear to be going away anytime soon.

Snowden’s ability to avoid arrest for these leaks has depended upon him finding sanctuary somewhere.  For the moment, he has been granted asylum in Russia (Author’s personal note: I remember when Russian whistleblowers came to the United States), much to the chagrin of the Obama Administration and former Bush Administration officials.  The thought that few, if any, have voiced is, what if Edward Snowden and other whistleblowers didn’t have to go outside the United States to find asylum?

When slavery was still legal in the United States, several northern states passed Personal Liberty Laws to combat the Fugitive Slave Act (FSA).  More than one version of FSA had been passed, the 1850 one being the most egregious, essentially allowing the kidnapping of a black person on the say so of an alleged owner.  

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