An Unhappy Summer for Liberty

At the root of the chaos in the Middle East and here at home are governments that respect no limits on their exercise of power. Public officials — who are supposed to be our public servants — routinely behave as if they are our masters. They reject the confines of the Constitution, they don’t believe that our rights are inalienable, and they fail to see the dangerous path down which they are leading us.

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Before You Rejoice

Before you rejoice that the government has seized an alleged terrorist in Libya who was indicted for planning the notorious 1998 U.S. embassy bombings in Africa, before you join the House of Representatives in a standing ovation for the Capitol Hill Police who killed a woman whose car struck a White House fence and who then drove away at a high speed, and before you commend the New York Police Department for quickly getting to the bottom of an alleged assault by a motorcycle gang that tormented a young family on a city street, please give some thought to the rule of law.

Last weekend, a team of Navy SEALs kidnapped a Libyan, Abu Anas al-Libi, off of a public street in Tripoli. The Navy men did not have a warrant for his arrest, did not have the permission of the local authorities or the Libyan government to carry out this kidnapping, and were unlawfully present bearing arms in public in Libya. Many of al-Libi’s alleged accomplices already had been arrested, prosecuted and convicted in the U.S. The U.S. could have sought his extradition, as it did with some of them, had President Obama not bombed the American-friendly government of Col. Moammar Gadhafi out of existence, without a congressional declaration of war.

Obama apologists have praised this maneuver as a bloodless way to obtain justice without using drones to kill. (How low we have sunk when Obama can be praised for not executing someone with a drone.) Secretary of State John Kerry, acknowledging that al-Libi is innocent until proved guilty, has claimed that the rule of law was followed here because he will be brought to a civilian U.S. court for trial. Former George W. Bush administration Attorney General Michael Mukasey claimed that because the embassy bombings constituted an act of war, the kidnapping of al-Libi was a lawful wartime assault, and he should be tried before a military tribunal.

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The President’s Embarrassment

When Secretary of State John Kerry, apparently irritated by a lack of sleep, gave a snippy and what he thought was an unrealistic reply to a reporter’s question at a London press conference last weekend, he hardly could have imagined the world’s response. Asked whether there is anything Syrian President Bashar al-Assad could do at this relatively late hour to avoid an American invasion, Kerry told an international audience that if Assad gave up whatever chemical weapons his government possesses, the U.S. would forgo an invasion.

But not to worry, Kerry added. Assad is not going to do that, and we will end up invading Syria in order to vindicate President Obama’s threat to do so. For two days, Obama remained silent on this as his arch-nemesis, Russian President Vladimir Putin, grabbed the spotlight and the high moral ground.

Putin, sounding more like a Nobel Peace laureate than the killer he is known to be, offered to broker a deal whereby the Syrian chemical stockpile would be surrendered to the United Nations, the Syrian government could go about defending itself from the al-Qaida-driven effort to take it over, and the U.S. would leave Syria alone.

Obama is generally firm in his belief that he needs to vindicate the threat he made last summer when he was trying to outdo Mitt Romney on sounding tough. It was then that Obama threatened to intervene in the Syrian civil war if chemical weapons were used by the government. Nevertheless, hating the international embarrassment visited upon him when suddenly Putin seems more reasonable than he does, Obama conceded to my Fox News colleague Chris Wallace that the Kerry-inspired and Putin-pushed idea seemed worth considering. And then the Syrian government agreed.

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1973 War Powers Resolution is Unconstitutional, Too

the WPR is profoundly unconstitutional because it cedes Congress’ constitutional war-making power to the president. The WPR was an ill-conceived political compromise effectuated by a Watergate-weakened president, congressional hawks who approved of Nixon’s unilateral invasion of Cambodia and sober congressional heads more faithful to the separation of powers.

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Liberty’s Backlash

Last week, Justin Amash, the two-term libertarian Republican congressman from Michigan, joined with John Conyers, the 25-term liberal Democratic congressman from the same state, to offer an amendment to legislation funding the National Security Agency (NSA). If enacted, the Amash-Conyers amendment would have forced the government’s domestic spies when seeking search warrants to capture Americans’ phone calls, texts and emails first to identify their targets and produce evidence of their terror-related activities before a judge may issue a warrant. The support they garnered had a surprising result that stunned the Washington establishment.

It almost passed.

The final vote, in which the Amash-Conyers amendment was defeated by 205 to 217, was delayed for a few hours by the House Republican leadership, which opposed the measure. The Republican leadership team, in conjunction with President Obama and House Minority Leader Nancy Pelosi, needed more time for arm-twisting so as to avoid a humiliating loss.

But the House rank-and-file did succeed in sending a message to the big-government types in both parties: Nearly half of the House of Representatives has had enough of government spying and then lying about it, and understands that spying on every American simply cannot withstand minimal scrutiny or basic constitutional analysis.

The president is deeply into this and no doubt wishes he wasn’t. He now says he welcomed the debate in the House on whether his spies can have all they want from us or whether they are subject to constitutional requirements for their warrants. Surely he knows that the Supreme Court has ruled consistently since the time of the Civil War that the government is always subject to the Constitution, wherever it goes and whatever it does.

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What if Laws Applied to Everyone?

What if government officials have written laws that apply only to us and not to them? What if we gave them the power to protect our freedoms and our safety and they used that power to trick and trap some of us? What if government officials broke the laws we hired them to enforce? What if they prosecuted others for breaking the same laws they broke?

What if the government enacted a law making it a crime to provide material assistance to terrorist organizations? What if that law was intended to stop people from giving cash and weapons to organizations that bomb and maim and kill? What if the government looked at that law and claimed it applied to a dentist or a shopkeeper who sold services or goods to a terrorist organization, and not just to financiers and bomb makers?

What if an organization that killed also owned a hospital or a school and the law made it a crime to contribute to the hospital or the school? What if the Supreme Court ruled that the law is so broad that it covers backslapping, advocacy and free speech? What if the court ruled that the law makes it a crime to encourage any terrorist organization to do anything – fix teeth, educate children, save lives or kill people? What if the law makes it a crime to talk to any person known to be a terrorist? What if the law is so broad that it punishes ideas and the free expression of those ideas, even if no one is harmed thereby?

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An Assault on Freedom of the Press

The firestorm commenced by the revelation of the execution of a search warrant on the personal email server of my Fox News colleague James Rosen continues to rage, and the conflagration engulfing the First Amendment continues to burn; and it is the Department of Justice itself that is fanning the flames.

As we know from recent headlines, in the spring of 2010, the DOJ submitted an affidavit to a federal judge in Washington, D.C., in which an FBI agent swore under oath that Rosen was involved in a criminal conspiracy to release classified materials, and in the course of that conspiracy, he aided and abetted a State Department vendor in actually releasing them. The precise behavior that the FBI and the DOJ claimed was criminal was Rosen’s use of “flattery” and his appeals to the “vanity” of Stephen Wen-Ho Kim, the vendor who had a security clearance. The affidavit persuaded the judge to issue a search warrant for Rosen’s personal email accounts that the feds had sought.

The government’s theory of the case was that the wording of Rosen’s questions to Kim facilitated Kim’s release of classified materials, and Rosen therefore bore some of the criminal liability for Kim’s answers to Rosen’s questions. Kim has since been indicted for the release of classified information (presumably to Rosen), a charge that he vigorously denies. Rosen has not been charged, and the DOJ has said it does not intend to do so.

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