The Lichfield Group

This article appeared in the August 8, 2006 issue of the Washington Times.

The Cheney-Specter National Security Surveillance Act of 2006 (S.2453) constitutes a virtual declaration of war on the Constitution. It would mutilate constitutionally protected privacy, cripple checks and balances, and inhibit political dissent. The bill’s profoundly anti-constitutional philosophy is that “trust the president” should be the measure of our civil liberties.

This article appeared in the August 1, 2006 issue of the Washington Times.

Presidential signing statements that declare an intention to disregard provisions of a bill passed by Congress that the president has signed into law because he believes them to be unconstitutional constitute great usurpations of the power to legislate. They flout the language and original intent of the Presentment Clause, Article I, section 7, clause 2; and, the president’s obligation under Article II, section 3, to “take Care that the Laws be faithfully executed.”

This article appeared in the July 25, 2006 issue of the Washington Times.

As William Shakespeare would have versified, Rep. William J. Jefferson, Louisiana Democrat, deserved Speech or Debate Clause protection from an FBI raid of his congressional office not because congressional misconduct should be punished less but because the Constitution’s separation of powers that safeguard an uncowed legislative branch should be loved more.

This article appeared in the July 18, 2006 issue of the Washington Times.

Knowledge tempered by prudence is the cornerstone of our democratic dispensation. Popular moral sentiments and sensibilities give birth to the nation’s laws and leadership. Among the first duties of the president is to teach the people to make discriminating judgments, to exalt reason over dogmas, and to be alert to government abuses or follies. Otherwise, the nation’s democratic sinews will atrophy, as highlighted by the fetish for secrecy and anti-intellectualism of the Bush administration.

This article appeared in the June 20, 2006 issue of the Washington Times.

The federal newsmen’s privilege statute pending before the Senate Judiciary Committee — the Free Flow of Information Act of 2006 (FFIA) — is nonsense on stilts.

This article appeared in the June 6, 2006 issue of the Washington Times.

Alabama Supreme Court Associate Justice Tom Parker, Republican, has summoned his judicial colleagues to resist “obviously wrong” decisions of the U.S. Supreme Court. Writing in the Birmingham News on Jan. 1, 2006, Justice Parker insisted the judicial oath requires lower court judges to ignore what they believe are errant Supreme Court precedents. Otherwise, he insinuates, constitutional law will come to resemble an ill-begotten petrified forest.

This article appeared in the May 31, 2006 issue of the Washington Times.

The volleys of debate over immigration legislation have obscured a more important truth. No matter the law’s stipulations, facts on the ground will remain largely undisturbed: millions of illegal aliens industriously working as firefighters, construction workers, agricultural laborers or otherwise coupled with a modest number of criminals or sponges.

This article appeared in the May 9, 2006 issue of the Washington Times.

Hard cases make bad law. That adage explains the concoction by a federal appeals court of a constitutional right of terminally ill patients to override the Food and Drug Administration’s dubious restrictions on the sale of new drugs in Abigail Alliance for Better Access to Developmental Drugs v. Esenbach (May 2, 2006). As Justice Benjamin Cardozo taught, the Constitution leaves room for large slabs of government folly.

This article appeared in the May 2, 2006 issue of the Washington Times.

Justice Oliver Wendell Holmes explained the folly of public school speech codes that seek to shield students from anguishing ideas or assertions in United States v. Schwimmer (1929):

This article appeared in the December 27, 2005 issue of the Washington Times.

President George W. Bush secretly ordered the National Security Agency (NSA) to eavesdrop on the international communications of American citizens in violation of the warrant requirement of the Foreign Intelligence Surveillance Act (FISA) in the aftermath of the 9/11 abominations. The eavesdropping continued for four years, long after fears of imminent 9/11 repetitions had lapsed, before the disclosure by The New York Times this month.

This article appeared in the December 20, 2005 issue of the Washington Times.

According to President George W. Bush, being President in wartime means never having to concede that co-equal branches of government have a role hiding encroachments on civil liberties.

This article appeared in the November 1, 2005 issue of the Washington Times.

Scooter Libby’s five-count indictment for lying about his knowledge of Valerie Plame emerged from a signature “we against them” attitude of the Bush administration: you are either an obsequious friend or an enemy to be destroyed. Life sports no shades of gray, no matters of degree. Success is measured by the number of opponents lacerated, not by the statesmanship accomplished.

This article appeared in the October 4, 2005 issue of the Washington Times.

The United States Supreme Court under the stewardship of Chief Justice John G. Roberts, Jr. will soon decide whether political speech will wither and die from the mad assaults of campaign finance reformers. The latter characteristically awaken from slumber each night terrified by the thought that sometime, somewhere, a candidate may be raising or spending a penny to persuade voters.

This article appeared in the August 7, 2005 issue of the Honolulu Star-Bulletin.

Sen. Daniel Akaka (D, Hawaii) is an honorable man. His intentions in championing the Akaka Bill to give birth to an exclusive Hawaiian governing entity operating outside the limitations of the U.S. Constitution are not sinister. But the senator’s multiple mistakes in defending the creation of a race-based government disserve the goal of an enlightened political decision. To paraphrase Thomas Jefferson in the Declaration of Independence, let facts speak to a candid state and national audience.

This article appeared in the July 21, 2005 issue of the Hawaii Reporter.

The customarily unerring U.S. Sen. Daniel Inouye stumbled in marshalling a defense of the Akaka Bill to constituent George L. Berish of Honolulu in a letter dated June 13, 2005. The senior Senator from Hawaii mischaracterized the ending of the Monarchy in 1893, the right of revolution, and the Native Hawaiian flowering after annexation in 1898.

This article appeared in the July 18, 2005 issue of the Hawaii Reporter.

Attorney General Mark J. Bennett’s high-voltage polemic against my adamant opposition to the Akaka Bill — “The Akaka Bill is Fair, Just, Long Overdue and Constitutional” — displays an alarming ignorance of Jim Crow, American history, and constitutional law. In the manner of Al Jazeera and Middle East tyrants, Hawaii’s premier legal officer tacitly deplores the democratization of Hawaii under the umbrella of the United States Constitution after the Hawaiian Monarchy was replaced by a republic in 1893. As Goethe warned, nothing is as dangerous as ignorance in action. [The original article that Bennett was responding to was: “New Racism in New Bottles”]

This article appeared in the July 15, 2005 issue of the Washington Times.

On the heels of apologizing for its old racism in thwarting anti-lynching laws, the U.S. Senate is poised to initiate a new racism celebrated in the so-called “Akaka Bill.” It would summon into being for the first time a race-based Native Hawaiian sovereignty operating outside the U.S. Constitution. Only persons with at least “one drop” of Native Hawaiian blood would enjoy the right to create the new sovereign entity with its sweeping immunities from federal and state laws.

This article appeared in the May 17, 2005 issue of the Washington Times.

U.S. District Judge for the District of Nebraska Joseph F. Batallion exemplifies why Senate Democrats covet the judicial filibuster. Appointed by President Clinton in 1997 and touted by Democrats as a mainstream jurist, Judge Batallion last week savaged an amendment to the Nebraska Constitution intended to block same-sex “marriage” in Citizens for Equal Protection Inc. v. Bruning.

This article appeared in the May 10, 2005 issue of the Washington Times.

“The more things change, the more they remain the same,” according to the long forgotten Frenchman Alphonse Karr. Take the bipartisan mauling of federalism.

This interview with Jim Williams appeared in the May 3, 2005 issue of the Washington Examiner.

With Congress breathing down Major League Basebal’s back on a number of issues, it raises the question: Is the antitrust exemption in trouble?

This article appeared in the April 29, 2005 issue of the Washington Times.

Indecent broadcasting coarsens.

This article appeared in the April 19, 2005 issue of the Washington Times.

Liberal legal culture frowns on religion.

This article appeared in the March 29, 2005 issue of the Washington Times.

The rule of law dictated the withdrawal of nutrition and hydration in the wrenching Terri Shiavo litigation. Detractors of the final court decision, that scrupulously honored Florida’s “right to die” statute and the United States Constitution, would reduce the rule of law to a restricted railroad ticket, good for this day and train only. Civil strife would become endemic, as each disappointed group in controversial litigation would rebel against court decrees regarding such matters as abortion, school prayer, the right to die, the death penalty, same-sex marriage, civil rights, or otherwise. As Thomas Hobbes lamented, life in such a state of nature would be poor, brutish, nasty, and short—a war of all against all.

Baltimore Orioles’ owner Peter Angelos is scheming with Major League Baseball (MLB) to deny the Washington Nationals customary television broadcasting rights to enrich his own regional sports network. Angelos hopes to crush a competitor, not on the playing field, but by backroom machinations. If he succeeds, satellite and cable providers will pay a $2-3 surcharge per subscriber to obtain broadcast rights from Angelos, a cost that will correspondingly hike monthly fees for customers of Comcast, Starpower, DirectTV and Dish Network in the District of Columbia. Congress should strip MLB of its unique exemption from the antitrust laws if the Washington Nationals are withheld tens of millions in broadcast revenues indispensable to competing in an era of free agency.

According to United States District Court Judge Joyce Hens Green in In re Guantanamo Detainee Cases (January 31, 2005), war is akin to a collective criminal prosecution. Thus, captured enemy aliens held at Guantanamo Bay are crowned with a right to counsel with access to classified information and a right to suppress coerced confessions to challenge their status as enemy combatants. The due process clause of the Fifth Amendment, Judge Green tacitly insisted, demands that the United States risk second editions of the 9/11 abominations from erroneous releases and a boosting of enemy morale to avoid a wartime injustice to a single suspected alien terrorist.

John Kenneth Galbraith’s fretting over an affluent society was misconceived.

The greatest danger to the United States is an effete society. Indulgence, excess, hedonism, aimlessness, and whining are pervasive. Ambition, responsibility, perseverance, and moderation are disparaged or renounced. But a great nation cannot endure with a culture that celebrates decadence and softness over loftiness and toughness. A national creed that acclaims the hero over the anti-hero must be inculcated to escape the fate of Rome.

Hawaii Attorney General Mark Bennett is dead wrong in his support of the Akaka Bill. The proposed legislation celebrates race-based divisiveness over America’s highest aspirations for unity and equality. The bill is blatantly unconstitutional.

E Pluribus Unum is the nation’s birth certificate.

Mandatory sentencing slashes crime. The multiple decisions of the United States Supreme Court in United States v. Booker (January 12, 2005) obtusely upended mandatory Federal Sentencing Guidelines in the name of honoring both the Sixth Amendment right to jury trial and congressional intent in enacting the Sentencing Reform Act of 1984 (SRA). Congress should race to restore federal mandatory sentences, but with juries finding facts that would determine the severity of punishment.

Career criminals commit the bulk of offenses. Their incarceration forecloses new crimes. Mandatory sentencing also captures non-career criminals. That misfortune is inescapable because criminology is an infant science. Too little is known of the personalities or circumstances that earmark recidivists to risk mandatory sentencing exceptions. But the overbreadth is worth the price of protecting the innocent.

This article appeared in the December 14, 2005 issue of the Washington Times.

The Supreme Court of Canada scaled a new peak in hallucinatory constitutional interpretation on December 9, 2004. In an advisory opinion sustaining the power of the Canadian Parliament to recognize same-sex marriages, the best and the brightest of Canada’s jurists insisted that the nation’s constitution was an organic “living tree,” not a petrified forest incapable of new limbs and climbing treetops. The “living tree” standard of interpretation, according to the Justices, gives birth to “progressive” laws and policies that answer “the realities of modern life.”

But like the Emperor’s new clothes, a “living tree” legal doctrine is naked of substance. It empowers the Canadian Supreme Court to weave its own progressive finery into the Canadian constitution without restraints on personal whims or prejudices. Such judicial abuse and arrogance is what the Democrat Party in the United States champions and hopes to foist on the American people. It speaks volumes that liberal Democrats have not denounced the Canadian judicial frolic, a silence that echoes their unspoken joy over the Massachusetts Supreme Judicial Court’s invention of a state constitutional right to same-sex matrimony in 2003.

This article appeared in the December 7, 2005 issue of the Washington Times.

War is hell, as General William Tecumseh Sherman sermonized. The Geneva Conventions and Protocols compound the hell for commanders and soldiers alike by ambiguously defining war crimes in relation to civilian objects as a failure to fight by Queensbury rules. As the United States Supreme Court taught in Connally v. General Construction Co. (1926): “[A] statute that which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”

Article 57 of Protocol I to the Fourth Convention is tantamount to an impractical Miss Manners guide for planning battles and attacking. A commander is made a war criminal by neglecting to do “everything feasible” to verify that neither civilians nor civilian objects will be targeted. But what is feasible to a war critic or pacifist is militarily reckless to a war supporter or general. It would be feasible to devote hundreds of spies to reconnoitering for weeks or months to insure against a miniscule possibility of a planning mistake, for example, the accidental bombing of the Chinese Embassy in the former Republic of Yugoslavia by the United States. But such scrupulous precautions might compromise military success. They are feasible or infeasible only in the eye of the beholder.

Federal courts have occasionally erred in handcuffing congressional or executive initiatives to defeat global terrorism since 9/11, for example, endowing illegal combatants captured in Afghanistan, indistinguishable from Nazi soldiers taken prisoner during the Battle of the Bulge, with a right to challenge the constitutionality of their detentions in federal courts. But Congress, the President, and local authorities have been equally if not more guilty of gratuitously compromising civil liberties and of slipshod counterterrorism legislation. Judicial review, with all its wartime deficiencies, should remain undisturbed to prevent national self-preservation from degenerating into promiscuous lacerations of cherished individual freedoms. Two recent court decisions are convincing.

Movement is afoot to make the Constitution pivot on Marxist-like class distinctions when private property is taken for public use. The endeavor should be smartly defeated. The Constitution was framed under an inclusive political philosophy which celebrated the Benjamin Franklin’s axiom that if we do not all hang together, we shall all hang separately.

The government routinely destroys the blighted housing of the poor for urban renewal by wielding the power of eminent domain. The indigent are uprooted and frequently distraught, but are paid “just compensation” as required by the Fifth Amendment.

The nation’s mindless celebration of multiculturalism and denigration of the American creed has reached a new plateau of destructiveness. A bill recently reported by the Senate Appropriations Committee (S.344) would establish a race-based government for Native Hawaiians unconstrained by the restrictions of the United States Constitution. Enactment of the bill would mark the beginning of the end of the United States, akin to the sacking of Rome by Alaric the Great in 406 A.D. A country that wavers in defending its fundamental political and cultural values—like a nation half slave and half free-will not long endure.

S. 344 would erect an independent government for the lineal descendants of Native Hawaiians to honor their asserted “rights as native people to self-determination and self-governance.” Best estimates place their number at over 400,000. Like Hitler’s blood tests for Jews, a miniscule percentage of Native American blood would establish an entitlement to participate in the new racially exclusive domain.

Zacarias Moussaoui is on trial for terrorism conspiracies linked to the 9/11 abominations. The Constitution ordains rules that strongly favor acquittal: proof beyond a reasonable doubt; jury unanimity; the privilege against self-incrimination; the exclusion of reliable but illegally seized evidence; and, the right to confront adverse witnesses, the greatest engine every invented for the discovery of truth. But according to the United States Court of Appeals for the Fourth Circuit, that fortress of protections against convicting the innocent requires further buttressing. Last week in United States v. Moussaoui (September 13, 2004), the appellate court held that Moussaoui also enjoys a Sixth Amendment right of access to three Al Qaeda enemy combatant detainees captured in the war on global terrorism (Witnesses A, B, and C) who might provide exculpatory testimony. The decision seems a wrongheaded interference with the President’s constitutional power to wage war.

The FBI’s voluntary questioning of persons reasonably expected to know of planned violence at the Democratic or Republican National Conventions exemplifies the vexing post-9/11 privacy choices the nation confronts in seeking to thwart terrorist crimes. That objective demands sleepless intelligence collection. To punish terrorist culprits after the fact would mark failure, not success. Just ask the friends and families of 9/11’s victims.

At present, the FBI’s circumscribed interviews seem prudent and constitutional. Neither citizens nor aliens enjoy a right to prevent law enforcement officials from seeking their voluntary cooperation through non-custodial interrogation. But to avoid fright or political docility, the FBI should inform interviewees that nothing asked should be interpreted to impair or deter their First Amendment rights of peaceful political dissent.

United States District Judge Thomas F. Hogan advanced the people’s right to know what their government is doing in directing Time magazine reporter Matthew Cooper and NBC Washington Bureau Chief Tim Russert to disclose to a grand jury their conversations with a specified Bush administration official suspected of violating the Intelligence Agents Protection Act of 1982. In a Memorandum Opinion filed on July 20, 2004 in In Re: Special Counsel Investigation, Judge Hogan denied that the free press clause of the First Amendment endowed the newsmen with a privilege to conceal confidential governmental sources who blew the cover of CIA operative Valerie Plame to discredit her husband, former Ambassador Joseph Wilson. As Supreme Court Justice Potter Stewart lectured, freedom of the press aims to provide organized and informed scrutiny of government. James Madison observed in protesting the odious Sedition Act of 1798 that “the right of freely examining public characters and measures…has ever been justly deemed the only effectual guardian of every other right.” The compelling watchdog role of the press would be turned on its head if reporters were permitted to conceal direct evidence of a national security crime allegedly committed by a high officer of the executive branch to retaliate against Mr. Wilson for accusing President George W. Bush of “twist[ing]” intelligence related to Iraq’s nuclear program in his 2003 State of the Union Address.

Larry Flynt celebrates pornography over political speech. That preference is deplorable, yet understandable.

The United States Supreme Court echoes Flynt’s debauched speech hierarchy. That echo is constitutionally obtuse and incomprehensible. When commercial depictions of sexual acts or organs intended to arouse are more scrupulously protected than issue advertising in federal elections, the First Amendment has been turned on its head and folly has been crowned.

Modern warfare clashes with individual justice. As President John F. Kennedy said of life, war is unfair.

Many of the brave die by friendly fire or enemy treachery.

Terrorists expose innocent civilians to death by employing hospitals, ambulances, or mosques as instruments of war.

Private property destroyed to thwart an enemy attack does not require government payment of just compensation.

Saddam Hussein should be summarily executed.

His uncontestable guilt of genocide, crimes against humanity, war crimes, and wholesale slaughter, torture, and rape of Iraqi dissidents would make a trial superfluous, akin to proving that the sun rises in the east and sets in the west. Summary execution might occasion qualms because of the customary presumption of innocence. But they would be fleeting. Based on voluminous, open, and notorious evidence, every sapient creature is already convinced beyond a reasonable doubt of Saddam’s staggering criminal culpability. Secretary of State Colin Powell’s sermonizing over Saddam’s innocence until a guilty verdict exalts form over substance.

The United States must fight global terrorism by Queensbury rules while the enemy indulges every savagery and abomination known to mankind.

That daftness is the subtext of the Supreme Court’s decision last Monday in Rasul v. Bush (June 28, 2004) entitling Guantanamo Bay alien detainees in the war against Al Qaeda and Taliban to challenge the legality of their detentions in federal courts through writs of habeas corpus and sister federal laws. Congress should not tarry in amending these statutes to withhold their benefits retroactively from aliens held in military custody as erstwhile combatants against the United States.

Secrecy for the sake of secrecy awakens suspicion.

President William Jefferson Clinton and First Lady Hillary Rodham Clinton blundered by wrapping in secrecy the President’s Task Force on National Health Care Reform chaired by the First Lady, a folly upheld by the United States Court of Appeals for the District of Columbia Circuit in Association of American Physicians and Surgeons, Inc. v. Clinton (1993). The health care proposals that ensued shipwrecked in Congress.

Whom do you think is ardently defending an outlandish congressional assault on federalism through an activist interpretation of the commerce clause of the Constitution? The answer is President George W. Bush, who is customarily an exponent of limited congressional power and State’s rights. Indeed, in supporting, signing and arguing the constitutionality of the Partial-Birth Abortion Ban Act (PABA) of 2003 in three federal district courts, President Bush is embracing a liberal Democrat theory of congressional power that his judicial nominees and the Rehnquist Court have loudly scorned. He should abandon defense of the act because partial-birth abortions are none of Congress’s business, as confirmed by 40 State laws proscribing the procedure.

Time is out of joint.

The miniscule percentage of American soldiers and officers implicated in prisoner and detainee abuses at Abu Ghraib and elsewhere confront charges, trials and punishment that earmark the rule of law. That incriminating photographs and videos will be manipulated to aid the enemy in the Arab and Muslim worlds has been no deterrent. As Secretary of Defense Donald Rumsfeld elaborated last Friday before Congress: “We know what the terrorists will do. We know they will try to exploit all that is bad and try to obscure all that is good. That’s their nature, and that’s the nature of those who think they can kill innocent men, women and children to gratify their own cruel will to power…”

The United States has captured and detained several Al Qaeda enemy combatants implicated in the 9/11 abominations. Extracting intelligence from the detainees is urgent to thwart new editions of 9/11. That wartime objective would be frustrated by their contact with defense counsel representing Al Qaeda operative, Zacarias Moussaoui, under indictment for six conspiracies linked to the 9/11 mass murders. Access could disclose sources and methods, and shipwreck any further cooperation with the United States military or intelligence services.

The Senate should balk at cluttering the Constitution when it votes next Friday on a crime victims’ rights amendment (VRA). To forgo the VRA is not to cherish victims’ rights less, but to venerate the brevity and accessibility of the Constitution more. Amendments are appropriate only when flexible and adaptable statutes would be insufficient to achieve a compelling objective; or, to protect discrete and insular minorities from political oppression. Neither reason obtains for the VRA.

National security adviser, Condoleezza Rice, will testify next Thursday publicly and under oath regarding the Bush administration’s forewarnings and counterterrorism planning before the 9/11 abominations. Her questioning by the independent National Commission on Terrorist Attacks Upon the United States will not cause the constitutional sky to fall. It will not engender distortion or suppression of advice received by presidents. Absolutely nothing adverse to a president’s constitutional powers will ensue from Dr. Rice’s disclosures of confidential counterterrorism communications which steer wide of intelligence sources or methods.

The United States Constitution needs amending to prevent state court judges from usurping legislative power to ordain same-sex marriages through exotic interpretations of state constitutions or statutes. The Supreme Judicial Court of Massachusetts exemplifies the usurpation, and has provoked a proposed amendment to the state constitution to undo its judicial caper. But curative political remedies are unsatisfactory. To apply them retroactively to dissolve homosexual marriages legally consummated under a judicial roof would be both wrenching and unfair to the affected same-sex couples. Accordingly, a constitutional amendment to forestall state judicial outlandishness in same-sex marriage litigation is justified. By insisting that the subject remain with legislatures or the people through popular initiative or referendum, the contemporaneous consensus amendment would address a salient feature of democratic governance, the customary yardstick for determining whether an issue is worthy of enshrinement in the Federal Constitution.