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For the past few days, the nation’s media and political class have been fixated on the firing of the No. 2 person in the FBI, Deputy Director Andrew McCabe. McCabe became embroiled in the investigation of President Donald Trump because of his alleged approval of the use of a political dossier, written about Trump and paid for by the Democrats and not entirely substantiated, as a basis to secure a search warrant for surveillance of a former Trump campaign adviser who once boasted that he worked for the Kremlin at the same time that he was advising candidate Trump.

The dossier itself and whatever was learned from the surveillance formed the basis for commencing the investigation of the Trump campaign’s alleged ties to Russia by the Obama Department of Justice, which is now being run by special counsel Robert Mueller and has been expanded into other areas. The surveillance of the Trump campaign based on arguably flimsy evidence put McCabe into President Trump’s crosshairs. Indeed, Trump attacked McCabe many times on social media and even rejoiced when Attorney General Jeff Sessions fired him at 10 p.m. last Friday, just 26 hours before his retirement was to have begun.

Why the fixation on this? Here is the back story.

After the unlawful use of the FBI and CIA by the Nixon administration to spy on President Nixon’s domestic political opponents, Congress passed the Foreign Intelligence Surveillance Act in 1978. This statute outlawed all domestic surveillance except that which is authorized by the Constitution or by the new Foreign Intelligence Surveillance Court.

That court, the statute declared, could authorize surveillance of foreigners physically located in the United States on a legal standard lesser than that which the Constitution requires. Even though this meant Congress could avoid the Constitution — an event that every high school social studies student knows is unconstitutional — the FISC enthusiastically embraced its protocol.

That protocol was a recipe for the constitutional crisis that is now approaching. The recipe consists of a secret court whose records and rulings are not available to the public. It’s a court where only the government’s lawyers appear; hence there is no challenge to the government’s submissions. And it’s a court that applies a legal standard profoundly at odds with the Constitution. The Constitution requires the presentation of evidence of probable cause of a crime as the trigger for a search warrant, yet FISA requires only probable cause of a relationship to a foreign power.

In the years in which the FISC authorized spying only on foreigners, few Americans complained. Some of us warned at FISA’s inception that this system violates the Constitution and is ripe for abuse, yet we did not know then how corrupt the system would become. The corruption was subtle, as it consisted of government lawyers, in secret and without opposition, persuading the FISC to permit spying on Americans.

ORDER IT NOW

The logic was laughable, but it went like this: We need to spy on all foreigners, whether they’re working for a foreign government or not; we need to spy on anyone who communicates with a foreigner; and we need to spy on anyone who has communicated with anyone else who has ever communicated with a foreigner.

These absurd extrapolations, pressed on the FISC and accepted by it in secret, turned FISA — a statute written to prevent spying on Americans — into a tool that facilitates it. Now, back to McCabe.

Though the use of FISA for domestic spying on ordinary Americans came about gradually and was generally known only to those in the federal intelligence and law enforcement communities and to members of the Senate and House intelligence committees, by the time McCabe became deputy director of the FBI, this spying was commonplace. The Foreign Intelligence Surveillance Court (is it really a court, given that its rulings are secret and it hears only the government and it rejects the constraints of the Constitution?) has granted 99.9 percent of government surveillance requests.

So when McCabe and his colleagues went to the FISC in October 2016 looking for a search warrant to conduct surveillance of officials in the Trump campaign, they knew that their request would be granted, but they never expected that their application, their work and the purpose of their request — as far removed as it was from the original purpose of FISA — would come under public scrutiny.

Indeed, it was not until the surveillance of Trump and his colleagues in the campaign and the transition came to light — with McCabe as the poster boy for it — that most Americans even knew how insidiously governmental powers are being abused.

The stated reason for McCabe’s firing was not his abuse of FISA but his absence of candor to FBI investigators about his use of FISA. I don’t know whether those allegations are the true reasons for his firing or McCabe was sacrificed at the altar of government abuse — because those who fired him also have abused FISA.

But I do know that there are lessons to learn in all this. Courts are bound by the Constitution, just as are Congress and the president. Just because Congress says something is lawful does not mean it is constitutional. Secret courts are the tools of tyrants and lead to the corruption of the judicial process and the erosion of freedom.

And courts that hear no challenge to the government and grant whatever it wants are not courts as we understand them; they are government hacks. They and the folks who have facilitated all this have undermined personal liberty in our once free society.

The whole purpose of the Constitution is to restrain the government and to protect personal liberty. FISA and its enablers in both major political parties have done the opposite. They have infused government with corruption and have assaulted the privacy of us all.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
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  1. anonymous[340] • Disclaimer says:

    On which sentence in this week’s column did Mr. Napolitano spend the most time? I’ll guess this one:

    “McCabe became embroiled in the investigation of President Donald Trump because of his alleged approval of the use of a political dossier, written about Trump and paid for by the Democrats and not entirely substantiated, as a basis to secure a search warrant for surveillance of a former Trump campaign adviser who once boasted that he worked for the Kremlin at the same time that he was advising candidate Trump.”

    The purpose of this monstrosity is to whitewash a scandalous abuse. Note the artful language:

    > Saying “not entirely substantiated” conveys that the dossier was substantiated … largely? mostly? substantially?

    > Saying “who once boasted” implies that the boast was known of early on, even before the dossier, and informed the request for surveillance.

    Only those who have dug into the details will see the spin. His dissembling done, Judge Waterboy (aka Freedom Watcher) then gives a civics lesson to reinforce his image as a guardian of the Constitution, a principled commentator above the political fray.

    Read More
    • Replies: @Buzz Mohawk
    You are obscuring something even more important than your need to nullify our rightful election of a president who challenges your power: The civics lesson.

    The FISA system is unconstitutional. That fact is bigger than any individual case you may care about. Napolitano gives an excellent explanation of why.
    , @El Dato

    Saying “not entirely substantiated” conveys that the dossier was substantiated … largely? mostly? substantially?
     
    Sarcasm, I think.

    Saying “who once boasted” implies that the boast was known of early on, even before the dossier, and informed the request for surveillance.
     
    Very likely.
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  2. @anonymous
    On which sentence in this week's column did Mr. Napolitano spend the most time? I'll guess this one:

    "McCabe became embroiled in the investigation of President Donald Trump because of his alleged approval of the use of a political dossier, written about Trump and paid for by the Democrats and not entirely substantiated, as a basis to secure a search warrant for surveillance of a former Trump campaign adviser who once boasted that he worked for the Kremlin at the same time that he was advising candidate Trump."

    The purpose of this monstrosity is to whitewash a scandalous abuse. Note the artful language:

    > Saying "not entirely substantiated" conveys that the dossier was substantiated ... largely? mostly? substantially?

    > Saying "who once boasted" implies that the boast was known of early on, even before the dossier, and informed the request for surveillance.

    Only those who have dug into the details will see the spin. His dissembling done, Judge Waterboy (aka Freedom Watcher) then gives a civics lesson to reinforce his image as a guardian of the Constitution, a principled commentator above the political fray.

    You are obscuring something even more important than your need to nullify our rightful election of a president who challenges your power: The civics lesson.

    The FISA system is unconstitutional. That fact is bigger than any individual case you may care about. Napolitano gives an excellent explanation of why.

    Read More
    • Replies: @anonymous
    You have misunderstood my comment.

    The FISA on its face and as used is indeed unconstitutional.

    My point, which I've been making here for months, is that Mr. Napolitano is running interference for those who are attempting to nullify the election.
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  3. Renoman says:

    The FBI and the CIA are now the same agency, they work exclusively for the deep state and need to be eradicated.

    Read More
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  4. anonymous[340] • Disclaimer says:
    @Buzz Mohawk
    You are obscuring something even more important than your need to nullify our rightful election of a president who challenges your power: The civics lesson.

    The FISA system is unconstitutional. That fact is bigger than any individual case you may care about. Napolitano gives an excellent explanation of why.

    You have misunderstood my comment.

    The FISA on its face and as used is indeed unconstitutional.

    My point, which I’ve been making here for months, is that Mr. Napolitano is running interference for those who are attempting to nullify the election.

    Read More
    • Replies: @Buzz Mohawk
    Got it. Sorry about misunderstanding. I'm not convinced Napolitano is doing what you describe, but I haven't seen a lot of him. At this point, I'm not sure why anybody would think they need to nullify the election, since Trump is doing their bidding and installing all the same old neocons.

    He is blessing a bloated budget that does nothing about immigration, and he has just made John Bolton his National Security Advisor. It seems to me the powers that be should just keep Trump. He's their "water boy" now.

    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  5. @anonymous
    You have misunderstood my comment.

    The FISA on its face and as used is indeed unconstitutional.

    My point, which I've been making here for months, is that Mr. Napolitano is running interference for those who are attempting to nullify the election.

    Got it. Sorry about misunderstanding. I’m not convinced Napolitano is doing what you describe, but I haven’t seen a lot of him. At this point, I’m not sure why anybody would think they need to nullify the election, since Trump is doing their bidding and installing all the same old neocons.

    He is blessing a bloated budget that does nothing about immigration, and he has just made John Bolton his National Security Advisor. It seems to me the powers that be should just keep Trump. He’s their “water boy” now.

    Read More
    • Replies: @anonymous
    Thank you.

    We've tangled before, but I agree with what you've said above about Trump. I have taken a ton of snot here starting back in 2015 for questioning his sincerity and encouraging people to stop participating in the national elections that serve only to harmlessly let off their steam. I was pleased to see Clinton lose, though, as the fallout at least seems to have made the corruption with one of its main hubs in Washington all the more apparent.

    And that's where "Judge" comes in. Take less than an hour to review his columns in recent months. Several of us have, through careful review of what he says and how, pointed out that he's quite the tool, especially when it comes to RussiaGate and the criminal acts of people in and around Washington who opposed and still are opposed to President Trump, for reasons that are pretty much the opposite of mine.
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  6. El Dato says:
    @anonymous
    On which sentence in this week's column did Mr. Napolitano spend the most time? I'll guess this one:

    "McCabe became embroiled in the investigation of President Donald Trump because of his alleged approval of the use of a political dossier, written about Trump and paid for by the Democrats and not entirely substantiated, as a basis to secure a search warrant for surveillance of a former Trump campaign adviser who once boasted that he worked for the Kremlin at the same time that he was advising candidate Trump."

    The purpose of this monstrosity is to whitewash a scandalous abuse. Note the artful language:

    > Saying "not entirely substantiated" conveys that the dossier was substantiated ... largely? mostly? substantially?

    > Saying "who once boasted" implies that the boast was known of early on, even before the dossier, and informed the request for surveillance.

    Only those who have dug into the details will see the spin. His dissembling done, Judge Waterboy (aka Freedom Watcher) then gives a civics lesson to reinforce his image as a guardian of the Constitution, a principled commentator above the political fray.

    Saying “not entirely substantiated” conveys that the dossier was substantiated … largely? mostly? substantially?

    Sarcasm, I think.

    Saying “who once boasted” implies that the boast was known of early on, even before the dossier, and informed the request for surveillance.

    Very likely.

    Read More
    • Replies: @anonymous
    As I said, only those who have dug into the details will see the spin.

    Please take less than an hour to review Mr. Napolitano's columns in recent months. Several of us have, through careful review of what he says and how, pointed out that he’s quite the tool, especially when it comes to RussiaGate and the criminal acts of people in and around Washington who opposed and still are opposed to President Trump.
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  7. anonymous[340] • Disclaimer says:
    @Buzz Mohawk
    Got it. Sorry about misunderstanding. I'm not convinced Napolitano is doing what you describe, but I haven't seen a lot of him. At this point, I'm not sure why anybody would think they need to nullify the election, since Trump is doing their bidding and installing all the same old neocons.

    He is blessing a bloated budget that does nothing about immigration, and he has just made John Bolton his National Security Advisor. It seems to me the powers that be should just keep Trump. He's their "water boy" now.

    Thank you.

    We’ve tangled before, but I agree with what you’ve said above about Trump. I have taken a ton of snot here starting back in 2015 for questioning his sincerity and encouraging people to stop participating in the national elections that serve only to harmlessly let off their steam. I was pleased to see Clinton lose, though, as the fallout at least seems to have made the corruption with one of its main hubs in Washington all the more apparent.

    And that’s where “Judge” comes in. Take less than an hour to review his columns in recent months. Several of us have, through careful review of what he says and how, pointed out that he’s quite the tool, especially when it comes to RussiaGate and the criminal acts of people in and around Washington who opposed and still are opposed to President Trump, for reasons that are pretty much the opposite of mine.

    Read More
    • Replies: @Macon Richardson

    Several of us have, through careful review of what he says and how, pointed out that he’s quite the tool, especially when it comes to RussiaGate and the criminal acts of people in and around Washington who opposed and still are opposed to President Trump, for reasons that are pretty much the opposite of mine.
     
    Pardon me for being a bit new to this discussion but could you explain your reasons for opposition to President Trump. More specifically, if I understand you, you seem to believe that the election should be nullified. On what grounds do you believe this?

    I thank you in advance for explaining the matter to me.
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  8. anonymous[340] • Disclaimer says:
    @El Dato

    Saying “not entirely substantiated” conveys that the dossier was substantiated … largely? mostly? substantially?
     
    Sarcasm, I think.

    Saying “who once boasted” implies that the boast was known of early on, even before the dossier, and informed the request for surveillance.
     
    Very likely.

    As I said, only those who have dug into the details will see the spin.

    Please take less than an hour to review Mr. Napolitano’s columns in recent months. Several of us have, through careful review of what he says and how, pointed out that he’s quite the tool, especially when it comes to RussiaGate and the criminal acts of people in and around Washington who opposed and still are opposed to President Trump.

    Read More
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  9. @anonymous
    Thank you.

    We've tangled before, but I agree with what you've said above about Trump. I have taken a ton of snot here starting back in 2015 for questioning his sincerity and encouraging people to stop participating in the national elections that serve only to harmlessly let off their steam. I was pleased to see Clinton lose, though, as the fallout at least seems to have made the corruption with one of its main hubs in Washington all the more apparent.

    And that's where "Judge" comes in. Take less than an hour to review his columns in recent months. Several of us have, through careful review of what he says and how, pointed out that he's quite the tool, especially when it comes to RussiaGate and the criminal acts of people in and around Washington who opposed and still are opposed to President Trump, for reasons that are pretty much the opposite of mine.

    Several of us have, through careful review of what he says and how, pointed out that he’s quite the tool, especially when it comes to RussiaGate and the criminal acts of people in and around Washington who opposed and still are opposed to President Trump, for reasons that are pretty much the opposite of mine.

    Pardon me for being a bit new to this discussion but could you explain your reasons for opposition to President Trump. More specifically, if I understand you, you seem to believe that the election should be nullified. On what grounds do you believe this?

    I thank you in advance for explaining the matter to me.

    Read More
    • Replies: @anonymous
    Well, this seems redundant of the upthread discussion with commenter Buzz Mohawk, but you sound sincere, so here goes.

    I don't believe that the election should be nullified. The machinations against Mr. Trump during the race and President Trump since the election are criminal and seditious, and should (but won't) be addressed as such.

    My opposition to candidate and President Trump has been that he neither understands nor believes what he espoused in his few good speeches (apparently written by Mr. Miller) such as the inaugural address, as indicated in his wildly inconsistent positions over the years and to date, the most recent being the appointment of Mr. Bolton. I sometimes think that Linh Dinh was correct in calling the outcome as the one engineered by our rulers, but consider just as likely the easily demonstrated version that Trump is Dr. ClintonStein's monster, the ideal opponent who ran wild.

    I stopped voting for USG offices after 2012, when I supported Dr. Paul, who was screwed by the GOP part of the Establishment.

    So, what do you think?
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  10. anonymous[340] • Disclaimer says:
    @Macon Richardson

    Several of us have, through careful review of what he says and how, pointed out that he’s quite the tool, especially when it comes to RussiaGate and the criminal acts of people in and around Washington who opposed and still are opposed to President Trump, for reasons that are pretty much the opposite of mine.
     
    Pardon me for being a bit new to this discussion but could you explain your reasons for opposition to President Trump. More specifically, if I understand you, you seem to believe that the election should be nullified. On what grounds do you believe this?

    I thank you in advance for explaining the matter to me.

    Well, this seems redundant of the upthread discussion with commenter Buzz Mohawk, but you sound sincere, so here goes.

    I don’t believe that the election should be nullified. The machinations against Mr. Trump during the race and President Trump since the election are criminal and seditious, and should (but won’t) be addressed as such.

    My opposition to candidate and President Trump has been that he neither understands nor believes what he espoused in his few good speeches (apparently written by Mr. Miller) such as the inaugural address, as indicated in his wildly inconsistent positions over the years and to date, the most recent being the appointment of Mr. Bolton. I sometimes think that Linh Dinh was correct in calling the outcome as the one engineered by our rulers, but consider just as likely the easily demonstrated version that Trump is Dr. ClintonStein’s monster, the ideal opponent who ran wild.

    I stopped voting for USG offices after 2012, when I supported Dr. Paul, who was screwed by the GOP part of the Establishment.

    So, what do you think?

    Read More
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  11. The whole purpose of the Constitution is to restrain the government and to protect personal liberty. FISA and its enablers in both major political parties have done the opposite. They have infused government with corruption and have assaulted the privacy of us all.

    Funny how “both major political parties” have destroyed rather than preserved the Constitution. They did it for money and in spite of their oath. They did it by the appointment of Supreme Court Justices. The Constitution says what it says. But only nine people on earth can know what it means. The Supreme Court is a poison pill baked in the American cake. Whether intentionally or unintentionally I do not know. Decisions about what is Constitutional and what is not should have been left to a jury.

    Read More
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