Tag Archives: rights

FISA and Search Warrants

Posted on by
Reply

The House Judiciary Committee is moving to seriously revamp FISA, the Act that was set up to deal with    widespread privacy violations by the Federal government during the Nixon administration.  It was intended to enable the government to surveil foreign persons and to limit the government’s surveillance to those foreign persons, and it includes a secretive and secret court to enable issuance of search warrants supporting that surveillance. The Act was promptly abused by the FBI and the Feds’ intelligence agencies to spy on us ordinary Americans, also, most recently during the runup to the Trump administration and continuing throughout that term, and since.

The Foreign Intelligence Surveillance Court earlier this year declassified a report revealing that FBI agents had inappropriately searched Americans’ phone records more than 270,000 times over a two year period, alarming civil liberty experts and generating bipartisan condemnation.

Bad as that abuse is, it’s also bad that that secret FISA court had been hiding that abuse behind its “classified” wall. This secret, Star Chamber court has been contributing its own abuses to the Act: it has acknowledged that the FBI had overtly lied to it on a number of those warrants, but then it had not only exacted no punishment, it continued blithely to accept FBI agents’ word on subsequent warrant applications. All of that is on top of the fundamental abuse that is the secret nature of this court, which aside from violating the spirit, if not the letter, of our court system, allows it to inflict those other abuses on us ordinary Americans.

Any suitable reform of the FISA Act must include disbanding altogether FISA’s Star Chamber Court. To the extent that the government worries about getting a warrant would tip off the bad guys—and it’s a legitimate concern—Article III courts and State courts all know how to seal and protect warrants when that’s…warranted.

Federalism and State Taxes

Posted on by
Reply

A Wall Street Journal editorial opens with this:

One great benefit of America’s federalist Constitution is policy competition among the states. Voters in Florida don’t have to live under New York’s laws, and Americans and businesses can vote with their feet by moving across state lines.

The editors proceeded to a description of State-level tax laws and the mobility of us Americans and our businesses in leaving States with high taxes in favor of States with, often markedly, lower taxes. But that lede overstates the case.

Federalism applies, often, with State taxes, but State-level business regulations are a different matter. It’s only necessary to see the outsize impact on our auto industry, for instance, or our pork industry, that California’s regulations have on vehicle requirements and on how hogs must be raised to see the lack of federalism in our regulatory environment.

With specific regard to California’s fuel requirements, there’s this from the Federal government’s EPA:

The Clean Air Act allows California to seek a waiver of the preemption which prohibits states from enacting emission standards for new motor vehicles.

The Federal government has long granted that waiver, and during the Biden administration, the feds made their latest move—overtly to refuse to rescind the waiver, effectively nationalizing a State regulation at the expense of federalism.

On the California’s hog-raising regulation, the Supreme Court upheld that regulation, which mandated the minimum space in which hogs must be raised, anywhere in the United States, in order for them to be marketable in California. The Court nationalized this State-level regulation—again at the expense of federalism.

If we’re going to preserve our federalist structure of governance, federalism must be restored to State regulations, as well as State-level taxes. Don’t look for any of that to happen under any Progressive-Democratic Party-dominated Federal government, though.

The 9th Circuit Got This One Right

Posted on by
Reply

A recent Wall Street Journal opinion concerned the question of when, or whether, a political figure who creates a personal social media account(s) can bar members of the public from interacting with those accounts. In

Michelle O’Connor-Ratcliff and TJ Zane, elected school board members in California, used personal Facebook and Twitter accounts they created while running for office to campaign and inform constituents about education news. The officials blocked two parents for making “repetitious and non-responsive comments” on their pages.

In O‘Connor-Ratcliff v Garnier, the 9th Circuit said the two board members could not do that.

The panel held that, under the circumstances presented here, the Trustees acted under color of state law by using their social media pages as public fora in carrying out their official duties. The panel further held that, applying First Amendment public forum criteria, the restrictions imposed on the plaintiffs’ expression were not appropriately tailored to serve a significant governmental interest and so were invalid.

And

The protections of the First Amendment apply no less to the “vast democratic forums of the Internet” than they do to the bulletin boards or town halls of the corporeal world. … When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them.

The editors generally disagreed with this ruling, and they closed their piece with this bit.

Americans have many platforms to criticize public officials without invading their personal social-media pages.

That’s plainly true. So, too, is the related: elected politicians (the editors seem to have subsumed—erroneously—unelected bureaucrats into the term “public officials,” whereas the court’s ruling plainly concerned only elected officials) have many platforms with which to describe, and to interact with their constituents regarding, their political and official doings without using their so-called personal accounts to do so and then limiting their constituents’, and the public-at-large’s, ability to respond and to petition [them], whether courteously or rudely.

I’ll go one farther than did the 9th. It’s not possible for an elected government official to have a personal social media account. An elected official represents his constituents at all times of the day and night, every day and night of every year he holds office, for all that as a practical matter, he takes time away from his duties to rest and recreate. From that, it’s impossible for him to have a non-public social media account so long as he holds elected office.

The 9th got this one right.

The Circuit Court’s ruling can be read here.

Private Citizens and Firearms Licensing in Israel

Posted on by
Reply

Israel has some firearms licensing requirements that would greatly please the Leftists in our nation. The particular requirement of interest to me is this one:

Firearm licenses for private citizens in Israel are typically only granted to individuals who can prove a need for extra security in their line of work or daily life.

And those who do succeed in getting licenses are limited to 100 rounds of ammunition at any one time.

Israeli citizens live in a small nation surrounded by terrorists that routinely and frequently attack that nation, particularly targeting civilians and civilian gathering spots. That’s their need for extra security.

In the immediate aftermath of Hamas’ current butchery, Israel’s National Security Minister Itamar Ben-Gvir is relaxing the nation’s gun control laws. More permanent and broader reaching relaxation/easier access to firearms for the citizenry may be in the offing.

Such moves are late, but that’s better than never. If they actually happen.

Bad Mistake

Posted on by
Reply

Federal DC District Judge Tanya Chutkan, who is presiding over former President and current Presidential candidate Donald Trump’s (R) trial on “election charges,” has issued a gag order limiting what Trump is allowed to say on matters associated with that trial. Her gag order should be found, on appeal, to be strongly unconstitutional—based on Chutkan’s own characterization of her order.

His presidential candidacy does not give him carte blanche to vilify public servants who are simply doing their jobs[.]

Trump’s status as a Presidential candidate is wholly irrelevant to this. Trump’s status as an American citizen is.

Here is what the Right to Petition Clause of the First Amendment of our Constitution says:

Congress shall make no law…abridging…the right of the people…to petition the Government for a redress of grievances.

Chutkan’s public servants are, most assuredly, Government officials, and Citizen (and Presidential candidate) Trump, most assuredly, is allowed to petition them, including through criticism, without regard to how prettily or rudely he couches his phrases.

That same Amendment also has this Free Speech Clause:

Congress shall make no law…abridging the freedom of speech

Citizen (and Presidential candidate) Trump, most assuredly, is allowed to speak about, as well as to, those same public servants, (and any other person, Government official or not) whether he does so with pretty words that suit Chutkan’s personal preference or with plainer words.

Chutkan’s characterization is her motive for issuing her gag order, and that motive disqualifies her order on its face: it was issued in bad faith, solely to satisfy her personal definition of propriety. It has nothing to do with any material or potentially prejudicial impact on the ongoing case, which is the sole reason for issuing any gag order.