Muslim Privilege

     A reckoning is due:

     Is there anyone out there who wants to discuss “privilege?”

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     Islam is an aggressive, imperialist creed. Little about it is even quasi-religious. When Muslims do things like congregate in the street to “pray,” what they’re really doing is asserting their superiority over secular law. Any other fool who would dare to block a public thoroughfare would swiftly be arrested for obstructing traffic, and possibly disturbing the peace as well. When Muslims do it, the “authorities” pretend it isn’t happening. Taking official notice and dispatching law enforcement to clear the obstruction might have... consequences.

     Don’t mumble “freedom of religion” at me. No other creed would be permitted such disturbances of public order. But our lily-livered “authorities” are either too intimidated by Islamic propensity to violence, or find it useful for keeping the rest of us cowed.

     But ordinary Americans find that we’ve had quite enough. Some of us own trucks with plow blades on them. And a whole lot of us own firearms.

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     You may be familiar with the following passage:

     “What I actually am, Mr. Rearden, is a policeman. It is a policeman’s duty to protect men from criminals—criminals being those who seize wealth by force. It is a policeman’s duty to retrieve stolen property and return it to its owners. But when robbery becomes the purpose of the law, and the policeman’s duty becomes, not the protection, but the plunder of property—then it is an outlaw who has to become a policeman.”

     It’s from Atlas Shrugged, of course. “Pirate” Ragnar Danneskjold is explaining his peculiar occupation to Hank Rearden. But stolen property is only one form of lawbreaking that requires a forcible response. Stolen freedom of transit and stolen public order are no less deserving of our attentions.

     President Trump has approved of the use of significant force when it’s needed to apprehend illegal aliens. Perhaps someone should ask him about these Islamic “street prayers” and what he would approve in response to them. Tear gas, perhaps? Rubber bullets? Or maybe firehoses?

     They must be quelled, and swiftly. If the “authorities” won’t act, private citizens must. Else the law is meaningless, and Islam reigns de facto over these United States.

“Lawful Resistance”

     A cocky chum stepped forward--one who had to be sent for twice. "You can't do this! It's against the law!"
     "What law, Gospodin? Some law back in your hometown?" I turned. "Finn, show him law."
     Finn stepped forward and placed emission bell of gun at man's belly button.

     [Robert A. Heinlein, The Moon is a Harsh Mistress]

     Heinlein’s novel of revolt against unwarranted authority and its excesses is a classic of Twentieth-Century speculative fiction. It’s also one of the most instructive novels of that era – and the passage above is a sterling example of what it has to offer. “What law?” is the question of the hour. Indeed, we should have been asking it a year ago, when “the authorities” refused to act against rampaging mobs that destroyed billions of dollars’ worth of others’ property and rendered a number of American cities near to uninhabitable. The refusal to act implicitly declared that there are two laws: one for those whose actions advance the agenda of the political elite; the other for the rest of us grubby peons.

     But if there are “two laws,” is there law at all? Law in the American sense? More to the point, what’s the point of trying to act “lawfully,” if “the authorities” can suspend, alter, abridge, or dismiss the law when it suits their purposes or the purposes of their backers?

     I must dismiss the myriad calls for “lawful resistance” to the Usurpers. I appreciate the sentiments and the intent, but those who exhort us thus are living in an America that no longer exists.

     The time for prissiness about “the law” is past. It isn’t even visible in the rear-view mirror. Whether we like it or not, what matters today is the ability to impose your will upon your circumstances: in other words, the possession of force majeure in your personal context.

     Every other notion of “law” is someone’s fantasy. Ask Ashli Babbitt.

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     I didn’t want to write the above. My personal inclination is to get along, rather than to trigger a confrontation. But we’re at the culmination of “a long train of abuses.” We have a Usurper Administration looming ahead of us. And it has already been made quite plain that the Usurpers and their Big Tech allies intend our subjugation.

     You doubt that? Consider this story:

     On Monday, Facebook blocked former presidential candidate Ron Paul from his own page. The move came hours after the longtime congressman and libertarian hero shared an article he wrote criticizing Twitter and Facebook for banning President Donald Trump from their platforms.

     “Last week’s massive social media purges – starting with President Trump’s permanent ban from Twitter and other outlets – was shocking and chilling, particularly to those of us who value free expression and the free exchange of ideas,” Paul wrote. “The justifications given for the silencing of wide swaths of public opinion made no sense and the process was anything but transparent. Nowhere in President Trump’s two ‘offending’ Tweets, for example, was a call for violence expressed explicitly or implicitly. It was a classic example of sentence first, verdict later.”

     Paul shared the article on Facebook sometime around 10 a.m. EST. Hours later, on Twitter, Paul said he had been blocked by Facebook.

     “With no explanation other than ‘repeatedly going against our community standards,’ Facebook has blocked me from managing my page,” Paul announced on Twitter. “Never have we received notice of violating community standards in the past and nowhere is the offending post identified.”

     Dr. Paul, a widely admired former Congressman, is 85 years old. He’s been a major figure in the liberty movement for nearly fifty years. I worked for his campaign in 1988, when he was a candidate for President. Senator Rand Paul of Kentucky is his son. To cut off his communications with his many followers achieves...what? For whom?

     The irony of Facebook blocking Dr. Paul’s page because he dared to criticize Big Tech censorship is just a rotted cherry atop the fetid sundae.

     As I’ve written before, the essential requirements for the maintenance of freedom are education, communications, and weaponry. Big Tech is enlisted with the Usurper forces, and is steadily severing our ability to find and communicate with one another. The Usurper Administration has already made it clear that it intends to take our weapons. It’s also proclaimed the “necessity” of renewed “lockdowns,” to smother what remains of our economic and social vitality. Law? What law? Some law from back in the Cleveland Administration?

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     In one of the less well considered things he wrote in The Law, Frederic Bastiat said that “Law is justice.” No, sorry, dear departed Frederic, law is nothing of the sort. At its best, it’s a statement of intentions we’re supposed to believe will conduce to justice. But the reality is often a good distance from the ideal.

     Many are the laws that go unenforced, or are selectively enforced according to the whim of “the authorities.” Many are the laws written to target particular institutions or individuals, who are thus made “enemies of the state” in fact if not in name. Many are the laws written so obscurely that even those who wrote them cannot explain their intent nor their effect. Many are the laws that have advanced injustice rather than justice.

     When those who claim to represent the law decide, arbitrarily, when it applies and what degree of enforcement it deserves, then there is no law. When they decide, for whatever reason, that the law binds some persons but not others, then there is no law. When the law is written in such a fashion that no one can be certain what it compels or forbids, then there is no law. And when the law is “interpreted” to override the natural rights of individuals to their lives, liberties, and honestly acquired properties, then there is no law.

     The rest is left as an exercise for my Gentle Readers.

The Rule Of Farce

     If you’re a Liberty’s Torch regular, you’ve seen me go on about constitutionalism and the requirement for a Supreme Law several times. Perhaps it made perfect sense to you, but perhaps it seemed a bit obscure, too abstract to analyze in application to the real world. If you’re one of the latter group, I hope today’s tirade will bring the central issue into better focus.

     The key to the American concept, which was at one time mentioned after such phrases as “needless to say,” is the unity between two fundamentals: rights and justice.

     The meaning of justice is the defense and maintenance of rights. Some commentators have made statements to the effect that justice must be viewed as a process rather than a result. That merely alludes to the impossibility of attaining perfect justice, wherein everyone’s rights are respected or restored, according to cases and circumstances. Fallible men operating under the veil of time are unlikely ever to perfect anything, justice included. We must sometimes agree to “make do;” for example, in cases involving murder and rape, where no conceivable restoration of the victim to his pre-victim state is possible.

     There are people who disbelieve in the concept of rights. They dismiss the notion as “metaphysical.” They’re not entirely wrong; rights aren’t physical objects but human conceptions. The natural world doesn’t respect our rights. It operates according to laws of physics that are prior and superior to human notions. Rights exist insofar as men insist upon them and upon their defense and maintenance: i.e., insofar as we insist upon justice.

     A “justice system” that does not defend and maintain a definite and well understood conception of rights is merely an enforcement scheme for someone’s preferences.

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     “Give to every other human being every right that you claim for yourself – that is my doctrine.” – Thomas Paine

     What are rights? How do we recognize them? I’ve blathered about them before, but at this point in this screed, a brief recapitulation would be appropriate.

     Rights, if they exist, are universal properties of human beings. That is, for a claim of some sort to be a right, it must belong, without contradiction or conflict, to every human being, past, present, or future. A violation of a right would require the use of force, whether “informally” or through a system of justice, to resolve. Those are the criteria by which we distinguish claims that are not rights from the real thing.

     John Locke’s elucidation of the rights to life, liberty, and the acquisition and enjoyment of private property provides our starting point. Could everyone alive claim and exercise those rights simultaneously, without generating conflicts among them that could only be resolved by force? Yes. Would an invasion or infringement of those rights necessitate resolution by force? Yes. So they pass the test. Many other claims have been made that do not.

     Politicians and demagogues are forever claiming this or that to be a “right.” Consider Franklin D. Roosevelt’s “Four Freedoms,” which he regarded as “rights” to which all persons are entitled:

1. Freedom of speech,
2. Freedom of conscience,
3. Freedom from want,
4. Freedom from fear.

     Items 1 and 2 above can be derived from the Lockean rights to life and liberty. They pass, which is why they’re mentioned explicitly in the First Amendment to the Constitution. But “freedom from want” presents a quite different profile. “Want” is a wholly undefined and unbounded thing. If Smith “wants,” does he have a right to be satisfied? What if his “want” is for Jones to work for him for nothing, or for Jones to surrender his rightful property for no compensation? Similarly, “freedom from fear” fails the test. Smith’s fears are as undefined and unbounded as his wants. Should Smith have a right to have Jones killed, on the grounds of his fear?

     A recent case of a claimed “right” that’s nothing of the sort is the “right to health care.” There was a time when there were no doctors, nurses, or medical equipment...but plenty of sick people. Did they have a “right to health care?” If so, from whom? Similarly, would the “right to health care” permit me to force a doctor to treat me for no compensation, or a pharmacy to provide me my drugs at zero cost? Absurd.

     Here’s another: the “right to a living wage.” I’d have thought this one would be laughed into oblivion as soon as it was raised, but...well, anyway. Do savages living in the jungle have a “right to a living wage?” What about persons in our own society that can’t work at all, because of crippling disabilities? Who’s supposed to pay them their “living wage,” and why?

     Remember this test; it will protect you from innumerable specious claims of “rights” in the future.

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     It’s just as important to be ready to condemn violations of acknowledged rights in the name of someone’s preferences or “cause.”

     One of the implications troubles some people. Do you claim a right to freedom of expression? You do? Very good, sir...but what about that pornographer over there? Do you allow that he has the same right? If not, why not?

     Here’s another. Do you believe in the right of private property? You do? Very good...but what about that cranky old neighbor who’s tired of your kids tramping through his back yard? Does he have the same right? If not, why not?

     Unless you’re willing to defend the rights of others even when you disapprove of how they exercise their rights, you don’t really believe in rights; you believe in permissions to be awarded by those who generally share your preferences.

     In my travels – 68 years’ worth, so far – I’ve met very few people who genuinely believe in rights. If you do, I hope you’re consistent about them. If you’re not...what do you really believe in?

     End of recapitulation.

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     The above is prefatory. I hope it hasn’t tired you out already, because the “main event” is only just about to arrive. It concerns a phrase that has been much bandied about in recent years...in almost every case fallaciously, even with intent to deceive. You will recognize that phrase, and cringe at the ways it’s been used to bludgeon you, as soon as you read it.

     Once a society decides to allow a State – a government, for those of you confused by the capitalized term – it must settle on a conception of rights and a justice system. Note that even the most horrifying totalitarian states make a show of professing “rights,” though those “rights” and the “defense” of them are not things you or I would care to endure. As I said above, the concept of rights is the basis for any concept of justice. Even the tyrants of a state as bad as Hitler’s or Stalin’s must give rights lip service. The alternative is the bald assertion that “might makes right” – that the word of the Maximum Leader and the truncheons of his enforcers will provide all the law we need.

     If a right, once admitted, is universal, then no man can defensibly claim a “right” to violate another’s rights. Nor does it matter whether he’s a government employee. The whole point of recognizing certain rights is to pre-enjoin everyone, including agents of the State, from violating them, and to pre-exculpate all persons for doing whatever they must to defend against would-be violators.

     Time was, even schoolchildren would call this “obvious.” In fact, it goes by a familiar phrase that you’re about to encounter here. Today it causes widespread head-scratching...almost entirely because of the deliberate distortion of the concepts of rights and justice.

     That familiar phrase – I hope you’re securely seated, Gentle Reader – is:

The Rule of Law.

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     The overriding reason for the Bill of Rights – which, be it remembered always, is integral with the Constitution – was to emphasize that rights are protected by the Supreme Law of the Land: the law to which all other laws, regulations, and governmental activities must conform. Were the Constitution not the Supreme Law, one could argue that “rights” are considerations of no greater importance than any law, regulation, or the means for their enforcement. (Note that this has happened anyway, through judicial “reinterpretations” of the Constitution and its provisions.)

     Now we come to the news item that redlined my turbines this morning:

     The Covert Human Intelligence Sources (CHIS) Bill was introduced to Parliament by the Home Secretary Priti Patel, with the much-publicized intention of permitting undercover operatives to break the law.

     However, the bill is far more extensive in terms of who it extends such provision to, with a wide variety of governmental departments listed: “Any police force; The National Crime Agency; The Serious Fraud Office; Any of the intelligence services; Any of Her Majesty’s forces; Revenue and Customs; Her Majesty’s Revenue and Customs; The Department of Health and Social Care; The Home Office; The Ministry of Justice; The Competition and Markets Authority; The Environment Agency; The Financial Conduct Authority; The Food Standards Agency; The Gambling Commission.”

     The bill proposes that criminal activity would thus be permitted for members of all these bodies. The summary of the document states that it is to: “make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.”

     The CHIS bill is deliberately vague about what crimes are to be permitted, stating that criminal conduct is necessary if it is “in the interests of national security; for the purpose of preventing or detecting crime or of preventing disorder; or in the interests of the economic well-being of the United Kingdom.”

     Any government agent may grant permission for criminal activity, providing that he merely “believes” it to be necessary in accordance with the prescriptions mentioned. No substantial proof seems to be required.

     Yes, it’s Britain and not the United States...but think for a moment about the way law enforcement – at all levels – has operated during the century behind us. I can’t think of any Constitutionally “protected” right that hasn’t been violated millions of times, in the name of enforcing some “law.”

     I’m not going to enumerate the rights so violated. If you’ve been paying attention, you know what they are. If not, just read the Bill of Rights. With the possible exception of the Third Amendment, every one of its “guarantees” has been violated innumerable times, entirely without penalty to the violators. Indeed, the violators have been shielded by court decisions. In one of those decisions, “Martinez-Barker,” the court ruled that a credible order from a hierarchical superior exculpates the government agent who acts upon it. Another, Barnes v. Indiana, ruled that there is no right to resist the police.

     Under these conditions, the much ballyhooed “rule of law” has become a farce. Government agents can do whatever they please to any private citizen or private concern. Arrest and detention without accusation or trial? Asset forfeiture in the absence of a crime? The extra-judicial slaughter of private citizens over a possible violation of a tax provision? All just fine. (Let’s not go into what government agents have done to American citizens outside the territorial jurisdiction of the United States.)

     Britain’s “CHIS Bill” would give legal coloration to the notion that sovereign immunity covers any and every action of any government agent, so long as he pleads that he “believed it necessary.” The United Kingdom is on the verge of enacting into “law” the de facto state of affairs that currently exists both there and in America.

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     Over the several decades of my personal interest in law, political systems, and the theories behind them, I’ve often been bemused by the hand-waving that persons with an axe to grind will use to deflect or dismiss objections to their proposals. The notion that rights have been specified and guaranteed by the Supreme Law is often a major irritation to such persons. They routinely seek to steamroll Fourth Amendment protections of personal privacy and Fifth Amendment protections of private property...and they frequently succeed. Their argument is nearly always reducible to a single word: “necessity.” It’s remarkable how many persons automatically accept their contentions, and how seldom they’re called to account for the damage their nostrums have inflicted on private citizens.

     They have made a farce of rights and justice. In Bertrand de Jouvenel’s words, “Law has lost its soul and become jungle.” Yet, incredibly, you’ll hear those same persons prattle about “the rule of law” as if it retained any shred of its original meaning...usually when there’s an electoral contest to be won. Sincerity? None detectable. Nor are the members of any party free from this sin.

     Some farces are laugh-worthy. This one is not.

Comeuppance Chronicles

     At last we have a story “big enough” to displace the Wuhan virus from the ledes of our news media: the exoneration of Lieutenant General Michael Flynn on the charge of having lied to the FBI. President-elect Trump had tapped General Flynn for his National Security Advisor. The thugs of the outgoing Obamunist Administration immediately targeted Flynn for takedown, whether out of spite or in the hope that it would open Trump to a lethal attack.

     One of the heroes of this correction of a grotesque injustice is Acting Director of National Intelligence Richard Grenell, who has succeeded in opening all the relevant records of the affair to public scrutiny. Those records paint a clear and staggeringly ugly picture: Obama’s henchmen in the FBI and DoJ deliberately crafted a “perjury trap” designed to snare Flynn. They even took note of their intentions in handwritten records that leave no doubt of their intentions.

     The following four pieces summarize the plot against General Flynn and its progression over time:

• New Red Flags Emerging From FBI's Handling of Michael Flynn's Case
• Obama, Biden Oval Office Meeting On January 5 Was Key To Entire Anti-Trump Operation
• Why is Obama Panicking Now? – The Importance of Understanding Political Surveillance In The Era of President Obama
• Democrats in Full Panic, Trying to Take out Bill Barr With New Letter

     Please read them all. In combination, they are absolutely damning…and there are surely more revelations, more maneuvering, and more thrusts, parries, and ripostes yet to come.

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     Prior to this I would not have thought that a partisan attack on a single administration figure could become the fulcrum around which the levers of power would turn. Yet it is so, because the persons who orchestrated and executed that attack were too certain of ultimate victory to conceal their work and the paper trail they left behind. They're not just arrogant, they're arrogant fools.

     Note that the Democrats have already rallied the communications and entertainment industries behind them, and all singing the same tune: "the rule of law is at stake." But the rule of law is a simple thing. It says that no man is exempt from the requirements of the law: no more and no less. These miscreants are striving to deceive their audiences about that simple proposition: an insult to the intelligence of anyone who survived a high-school education. Arrogant, contempt-filled fools.

     The open lying is the worst of it. Nadler & Co. claiming that “The evidence against General Flynn is overwhelming,” when in fact there is no evidence whatsoever that Flynn committed any prosecutable offense of any variety, is utter idiocy. Arrogant, contempt-filled, irremediably stupid fools.

     These, America, are the members of your would-be Political Elite. Your Establishment. Your self-nominated Ruling Class. Most of them have held their positions, or offices of comparable stature, for many years, usually without ever being seriously challenged. And you put them there.

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     A full schedule of comeuppances for the partisan thugs who targeted General Flynn, bankrupted him, and coerced him into a guilty plea by threatening his family will require federal indictments, trials, convictions, and prison sentences for all involved,. There’s certainly enough evidence to indict and try them all, from the Strzok / Page “FBI insurance brokers and love combine” right up to the McCabes and Comeys of the outgoing administration. Yet Roger Kimball, one of the most observant and incisive of today’s commentators, thinks retribution of a satisfactory grade is a forlorn hope:

     You would have to go far down the Democratic food chain—to a Peter Strzok or a Lisa Page—before you get to someone dispensable enough to be thrown under the bus.

     Which is why retribution is a fond hope. The best we can hope for is a general disillusionment and erosion of authority in the public’s acquiescence to rule by the Deep State. That would undoubtedly be a victory, the more thoroughgoing the disillusionment, the better. Doubtless, retribution, in the form of indictments, would be more satisfying. But politics, as Bismarck observed, is the art of the possible.

     In other words, Kimball thinks it more likely that “the system will protect its own.” We’ll need to content ourselves with a couple of sacrificial lamb low-level figures. But in this lies the true import of the rule of law: that high elevation in the government must not and shall not immunize the perpetrators of infamies. Should our “justice system” shield those high-level malefactors, it will be an occasion for rebellion.

     If these club-footed, thumb-fingered morons aren't prosecuted for their crimes, the Republic is lost. If any of them survives prosecution, the lesson to future generations will be that the only real crime is getting caught without having connections enough to get you off. Success, be it remembered, breeds emulation.

     Buy stock in construction-grade lumber and stout hemp rope. You can always use it for a treehouse or a garden shed.

Respect For The Law...Enforcers

     When tales of police peculation, arrant injustice, and unconscionable cruelty accumulate, the public’s attitudes toward the police become chilly. It’s an entirely natural reaction; decent men don’t think well of indecent men, and the worst sort of criminal is one who carries a badge. The unfortunate consequence is a diminution of public respect for the law itself, which comes to be seen as a cover for plunder and the exercise of brutality. That, too, is natural; it’s exceedingly difficult to distinguish the law from its enforcers and their methods, especially given the enormous degree of discretion and the near-total immunity from accountability the police and prosecutors’ offices have been allowed by the courts.

     We may therefore assume that the recent report from Department of Justice Inspector-General Michael Horowitz will occasion a great decline in respect for the FBI and the laws it purports to enforce. Indeed, the signs are all around us that this is already an accomplished fact.

     But what consequences will that decline in respect have for ordinary, non-badge-carrying Americans?

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     The most serious crimes the FBI has historically investigated have been kidnappings, espionage, and sabotage. (Yes, they’ve stuck their snouts into a lot of other crimes that had an interstate aspect, usually to the detriment of the investigations involved.) Sabotage is generally rare in peacetime. Espionage today principally targets corporations, which are loath to invoke the attention of the FBI for several reasons, some of which are good. Kidnappings, however, are perennial. They touch individual American lives and families. The FBI’s investigations of such crimes are a great part of the reason for its historical admiration and prestige.

     But now we can see that the FBI has been corrupted. The upper reaches appear to be beyond salvage. No one can say how deeply into the rank and file the rot has penetrated. Moreover, the IG’s report, which lays out a minutely circumstantial case for that corruption, concludes by dismissing its own findings. Though thick with evidence of political corruption, its conclusion maintains that the corruption had no effect of importance.

     The incredulity among Americans who respect facts and can perform straightforward inferences has pinned every meter in the country. The self-protective character of the Horowitz report is too blatant to deny. Horowitz himself is now suspected of involvement...or perhaps of having been threatened should he dare to point an openly accusing finger at certain parties. For practical purposes, it wouldn’t matter either way.

     If we leave aside matters of reputation, what consequences are likely? Will President Trump act against the appointed officials plainly revealed to be politically-driven scum? Will state and local law enforcement departments fight any more determinedly to keep the FBI out of their investigations and operations? Will ordinary Americans be less willing to assist in FBI investigations?

     Perhaps someone should ask the advice of Steven Hatfill or Richard Jewell.

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     Federal law is already a minefield. Its tangles can be used to trap just about anyone, as Harvey Silverglate has told us. Add the incredible U.S. Code provisions that criminalize “lying” to a federal investigator, and it becomes plain that no one in his right mind would want to come under the FBI’s scrutiny. On that subject we can consult Martha Stewart and Lewis Libby.

     When corrupt persons attain the presidency, the baleful power of the FBI becomes threatening to anyone the regime might view as hostile. So far, that power has targeted only persons of public prestige and persons who possess information damaging to the regime...but there’s no guarantee that it will remain that limited.

     The political weaponization of the FBI is a link in a chain. We were allowed to discover another link in the IRS’s differential treatment of conservative groups. During the Obama Interregnum election-integrity groups were targeted as well.

     But we mustn’t expect law enforcement itself to conform to the law! Hearken to Kurt Schlichter:

     The IG report sidestepped the most critical point, the one that is resulting in the American people losing their last remaining fragments of faith in our system, the fact that there are demonstrably two sets of rules, that there are two brands of justice in America.

     There is one for you, me, and everyone else not in the elite – the infuriated, angry Normals. And there is another one for the elite.

     With the issuance of the Horowitz Report, the Department of Justice has placed itself above the law. With that, American society – the first and only truly free society the world has known – has become a Society of Status, in which who you are and what friends you have looms infinitely higher than any other consideration.

     How can respect for the law be divorced from the blatant partisanry and corruption of the law’s enforcers – a corruption our elected officials appear willing to tolerate? Have we fallen into the abyss – the middle-class anarchy of which we’ve been warned – wherein private Americans will habitually refuse to engage law enforcers, and disdain to assist in the enforcement even of laws of which they approve?

     I fear for my country.

Preconditions For And Implications Of The Rule Of Law

     There’s been an awful lot of yammering about “the rule of law” in recent weeks. Most of it has come from commentators who either don’t know what that august phrase means or secretly dislike the whole concept. In consequence, we’ve had a lot of Sturm und Drang with approximately no penetration of the actual state of legal affairs in these United States. But when the semantic noise rises to pain-threshold levels, the Gentle Readers of Liberty’s Torch know they can rely on one voice to raise it fifty decibels higher to cut through the confusion and restore logic, reason, and order: your old Curmudgeon.

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     Grab a voice recorder, put on your rain slicker and Wellies, go out to the street, and ask a hundred passers-by what “the rule of law” means. Record their answers to that one question; don’t add further inquiries in a vain attempt to clarify whatever nonsense they spout. Go ahead; I’ll wait.

     What’s that? You didn’t? It’s too hot, or too cold, or too damp or dry? Shame, shame. All right: I’ll ask you, then: What is “the rule of law?” And I, being a privileged party here, will ask a second question: Who told you that?

     The usual interpretation of “the rule of law” is that “the law rules:” that is, that the preferences and opinions of men in positions of authority are subordinate to the dictates of the law as written. It sounds good, but in practice it cannot be attained, for a simple reason: the laws must be enforced by men. That gives the enforcers discretion about when to apply the law.

     I’ve written before about prosecutorial discretion and the hash it makes out of our legal order:

     The right of trial by jury says, in so many words, that you cannot be punished by State decree. You can only be punished by the judgment and with the consent of your peers. But a State that cannot inflict punishment upon its subjects without their explicit consent is not a State in the original sense of the word: an organization that commands the pre-indemnified use of force, whether initiated or in response.

     The statists that rule this once free country have made a mockery of those guarantees. They’ve done it with “prosecutorial discretion,” with laundry-list charges and “plea bargaining,” with the silencing of the right of jury nullification, and perhaps worst of all with administrative laws created and imposed by unaccountable bureaucrats, entirely outside the Constitutional requirements on the law.

     We permitted it. We were told it was “necessary,” that the usual processes of legislation and judicial operation were “inefficient,” “unsuited to our complex modern era.” And we swallowed it whole. The ghost of William Pitt must have wept at the sight. Yet people ask me why I study the skies each night, hoping for a convenient planetoid.

     But prosecutors are only a single link in the enforcement chain. Before them come the police, who choose whether or not to act on some seeming violation of the law. After the prosecutors come the judges, who possess an almost unbounded power to dismiss any legal action that comes before them. For a law to be enforced requires the collaboration of all three...along with a common, undisputed understanding of what the law addresses and forbids or requires.

     Clearly the preferences and opinions of men cannot be extricated from this morass.

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     As bad as the above is, there’s still worse obstructing the conviction that “the law rules:” the laws often contradict one another.

     The most common case of this problem arises from violations of the individual rights set forth in the Bill of Rights, most notably the Fourth and Fifth Amendments:

     Article IV:
     The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

     Article V:
     No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

     Inasmuch as the Constitution as amended is “the supreme Law of the Land,” by which “the Judges in every State shall be bound thereby,” then any law that:

1. Contradicts its terms; or:
2. Sets aside one of its guarantees; or:
3. Requires the violation of its constraints to be enforced;

     ...is perforce invalid, and cannot be legally enforced. Yet we endure numerous laws that are enforced at the expense of our supposedly guaranteed rights. The Constitutional requirements for a valid search warrant are routinely shrugged aside. The destruction and disorder inflicted even by a search performed under a valid warrant are seldom repaired or compensated. Similarly, the police often take property from wholly innocent persons and never return it to them, with no compensation offered.

     Many are the laws that could never be enforced without violating the Amendments mentioned above. Start with the drug laws and the laws against prostitution and gambling, and proceed from there. Add the enforcers’ discretion as already discussed, and what happens to the idea that “the law rules,” rather than the preferences and opinions of men in positions of power?

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     Two subjects of recent interest pertain to the question of whether America is a nation in which “the law rules.” First comes President Trump’s pardon of Dinesh D’Souza. Second is disgraced former governor of Illinois Rod Blagojevich’s argument for a pardon. The first case illustrates how an individual’s rights must be violated to prosecute him under a bad law. The second case addresses the discretion the enforcers possess concerning whom to pursue under a given law. Both are worth your time to ponder.

     Concerning the D’Souza matter, the campaign finance law is impossible to enforce other than selectively, which violates the equal-protection guarantees of the Fourteenth Amendment. This compounds the damage it does to freedom of expression.

     To enforce the campaign finance law evenhandedly would require the continuous monitoring of virtually all financial transactions and all related communications. How else would the authorities be able even to surmise that Smith's gift of $X to Jones was made in expectation that Jones would donate it to Davis's campaign? That degree of governmental intrusiveness exceeds anything decent Americans would tolerate for any reason.

     It is stunningly ironic that the very politicians screaming to "get the money out of politics" are excepted from the law, so that they can spend unlimited amounts of their own money -- and is it their own money, in every case? -- on their own campaigns. This is an example of a kind of law Americans should not tolerate: one that creates two castes: We the hoi polloi and They the Privileged Elite. Royal families and aristocracies that wear ermine robes may be easier to recognize, but they're no more pernicious.

     In the matter of Blagojevich’s conviction for his attempt to “sell” the U.S. Senate seat vacated when Barack Hussein Obama was installed as president, it is true that many other politicians have done essentially what he did, more or less in plain sight, and have faced no legal consequences for it. But here, time and changes in our surrounding environment matter critically. Blagojevich committed his offense in 2009. Had he done so in 1989, he might have escaped legal consequences. In 2009, his misdeed could be noised all over the world in mere minutes — and it was.

     As a rule, members of the political class dislike to see one another prosecuted. It gives them all the uneasy feeling that they could be next. So when a politico commits a non-violent felony, as long as word of the deed doesn’t get outside their protected and protective circle, they’re more likely to hush it up than to allow it to become a matter for the courts. The common, non-office-holding citizen is less likely to go along with that.

     Pre-Internet, shielding an officeholder from the consequences of his crimes was usually achievable, which might help to explain why the Clintons got away with so much during Bill’s time as governor and as president. Today, a pol can’t afford to wipe his nose wrong in sight or hearing of others, proximate or remote. The Net sees all, knows all, and tells everybody.

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     Some legal scholars will tell you that “the rule of law” is an aspiration rather than a constraint that can be strictly observed. They’ll argue that “we must have” certain laws, even if their enforcement inherently violates individual rights or Constitutional guarantees. In the usual case, they decline to address any further objections.

     But that word “must” is a good companion to my other favorite word, “should.” The use of “must” implies that the consequences of not having the law under discussion would be intolerable. That, of course, is a judgment that We the hoi polloi are supposed to accept without objection.

     It becomes ever clearer that “the rule of law,” as our grade school civics classes taught it to us, is a phantasm. Its preconditions are unmet. Its implications contradict our understanding of more fundamental laws about right, wrong, and reality. And with that I yield the floor to my Gentle Readers.

A Game With No Rules

     [The following two pieces first appeared at Eternity Road in November, 2011. In light of the mountain of evidence accumulating to the effect that we have a “Deep State” that has conspired, and is still conspiring, to nullify the 2016 election of Donald Trump to the presidency, they struck me as unusually relevant to today. -- FWP]

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     Imagine the following: A friend asks you to play a game with him. He gives it a name you've never heard before -- perhaps Fizzbin -- but assures you that you'll love it. Inasmuch as you've trusted him for a long time, you agree and ask, "What's the objective?"

     He grins and says, "Well, there isn't one, really. Mostly just to play."

     That comes as something of a surprise, but, resolved not to be too easily daunted, you ask, "What are the rules?"

     He produces a second grin, a bit more sheepish than the first, and says, "There aren't any. You can do whatever you like."

     Does that strike you as a game anyone could or should "play?" With no objective, there's no way to win, lose, draw, or conclude the game. With no rules, there's no limit to what you or your opponent can do to each other. There's no right, wrong, legal, illegal, better, worse, loser or victor. What's the point? Indeed, how does it qualify as a "game?"

     No, Gentle Reader, your Curmudgeon isn't just wordspinning for the sake of consuming a few excess pixels. He's describing the federal government of these United States.

     Remember when Nancy Pelosi, then the Speaker of the House of Representatives, was asked for the Constitutional authority behind ObamaCare? Remember her response? That was a pretty good illustration of the "rules" our federal government, the most powerful instrument of coercion that exists in the world today, operates under. A couple of days later, Pelosi actually elaborated on her response: she said that in her opinion, Congress has the power to do anything: to make law of any kind, on any subject, and to whatever effect it likes.

     That came as quite a surprise to your Curmudgeon. The surprise wasn't that Pelosi would believe such a thing, but that she would say it into an active microphone. However, after some time to ponder it, he realized that Congress has operated under those no-rules rules for a long time already -- and that We the People have acquiesced to it with hardly a peep.

     You might reply, "Well, yeah, but if they do something we really dislike, we can always boot their sorry asses out of their seats at the next election." Are you sure about that? Even if we discount the 95% rate of recidivism re-election among incumbent federal legislators, what's to prevent an omnipotent Congress from passing a "law" to the effect that, "owing to the ongoing emergency," elections for Congress must be suspended for the foreseeable future? At least two liberal Democrats, one of them a state governor, have suggested exactly that course of action.

     Governor Perdue later attempted to pass her remark off as "hyperbole." But another, even more prominent Democrat has made an even more revealing statement:

     We are reminded of what Bill Clinton said on 11 March 1993,

     "We can't be so fixated on our desire to preserve the rights of ordinary Americans . . . ."

     Bill Clinton then said on 12 August 1993,

     "If the personal freedoms guaranteed by the Constitution inhibit the government's ability to govern the people, we should look to limit those guarantees."

     Clinton was the president of the United States when he said those things. He never after bothered to qualify them, let alone retract them. They're the clearest possible explication of the dangers of a government which claims to have interests of its own.

     Star Parker issues a plaintive cry in her column of this morning:

     Is it not sad that the most fundamental aspects of our ability to live as a free people boil down these days to how nine Supreme Court justices choose to read and interpret a word or phrase?

     Is it not sad that most basic violations of individual liberty are not intuitively obvious to so many citizens and members of Congress?

     Or perhaps even sadder, that liberty may no longer be the objective?

     For a permanent political class which sees itself as the government and the rest of us as its subjects, liberty is no part of its objectives. Execpt, of course, for the State's "liberty" to do whatever it pleases with us, with our money and property, and with our futures.

     Therein lies the rub. The federal government is no longer, in Franklin D. Roosevelt's words, a "people's government." It is no longer, in Abraham Lincoln's words, a government "of the people, by the people, and for the people." It is a supralegal entity, unbound by any principle of law or justice, that sees the rest of us as no more than fodder for its own interests.

     Lawrence Auster has discoursed on this phenomenon. He sees it as being independent of party or ideology, as well. Recent history appears to support his view.

     It might be a while longer before a federal hegemon dares to attempt the overt suspension of Constitutionally prescribed elections, or the unabashed dismissal of a right guaranteed in the Bill of Rights. But let us not doubt that, in a Congress which allows a Nancy Pelosi to remain seated within it, the potential exists. Another thing recent history tells us is that sooner or later, such a potential will be actualized.

     Private Americans, who wish only to be free, cannot win this game with no rules. Neither can we withdraw from it. We can only end it. It's become highly unlikely that we can do so via the ballot box; the political class has rigged that element of the game in its own favor, and will fight to the death against any attempt to cleanse it.

     It's time to look at one another and ask the hard questions.

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     Part 2: Where Are The Officials?

     Imagine the following:

• During a Major League Baseball game, an outfielder climbs over the fence and stands among the fans to catch what would otherwise have been a home run...and nothing is done about it.
• During a National Football League game, a linebacker pulls out a billy club and uses it to beat the opposing quarterback unconscious...and nothing is done about it.
• During a National Hockey League game, a player slashes an opponent across the neck with his stick, decapitating him...and nothing is done about it.

     Unimaginable, right? Even if those games were among the most exciting ever played -- and given that the officials allowed the tactics described, they just might be -- the fans wouldn't stand for it. Such behavior is what the officials are there to prevent, or to penalize when it happens. Were the officials to turn a blind eye to such deeds, the games would no longer be baseball, football, and hockey as the fans understand them. Game attendance and home viewership would swiftly decline to a few sociopaths.

     (Rollerball aficionadoes might disagree, but your Curmudgeon is trying to make a point here.)

     The rules are the game. The rules define how victory is determined, The rules prescribe what must, may, and must not occur. The rules also state what's to be done with those who violate the rules.

     And with that, your Curmudgeon comes to his critique of the Constitution of the United States and our supposed attachment to it.

     A law of the usual sort specifies not merely what's mandatory or illegal, but also the penalty to be imposed on those found to have violated the law. Thus, the citizen is put on notice that should he dare to defy the law and be convicted under it, he will suffer a specified exaction from his life, liberty, or property. Granted that some laws allow judges and juries "sentencing discretion," the requirement that a valid law must incorporate a statement of the consequences for its violation goes back to the Magna Carta.

     The Constitution, "the Supreme Law of the Land" (Article VI, second paragraph), evaded those requirements. That's a major part of what's wrong with the Constitution. Worse yet, the Constitution never explicitly states whose duty it is:

• To determine when a violation of Constitutional law has occurred;
• To determine who is responsible for that violation and bring him (or them) to book;
• To impose and enforce the Constitutional penalty.

     If the Founders believed that the federal courts would answer those needs, they omitted to consider that the courts, themselves a branch of government, could easily enter into alliance with the other branches and either refuse to acknowledge Constitutional violations, or collaborate in their defense. "The least dangerous branch" could turn into a refuge for extra-Constitutional rationalization and exculpation -- just as it has. If the Founders placed the whole burden of "Supreme Law Enforcement" on the electoral process, their faith in elections was terribly excessive. Despite their expressed fears, it would appear that they didn't fear democracy enough.

     It's in the nature of things that a government cannot be obliged to restrain itself. Any constraints placed on it must be imposed and enforced from outside. Quis custodiet ipsos custodes? as we used to say in ancient Rome.

     As matters stand, there is only one agency capable of punishing a violation of the Constitution, and therefore of restraining the federal government: the people in arms. But We the Supposedly Sovereign People have refrained from any such enterprise. Whether we've disavowed the responsibility, or have become flaccid, or have been bought off, we have scamped our duty to enforce the Supreme Law of the Land against those who have progressively shredded it: our political class.

     Perhaps it was inevitable. Perhaps the peace and plenty we accumulated under limited Constitutional government has lulled away our will. Perhaps it was too soothing a drug to resist. Only the results matter.

     The Game With No Rules is as it is because the only officials there can ever be -- We the People -- have called no fouls, sent no players to the penalty box, issued no "red cards." Instead of marching against the usurpers of power and the infringers of our rights, ejecting them from their places of power, tarring and feathering the routiniers and hanging the ringleaders from District of Columbia lampposts pour encourager les autres, we've shrugged, murmured "well, what can we do, anyway," and allowed them to continue. Indeed, we've returned them to office far more often than not.

     But taking up arms to defend our Constitution and the principles it enshrines is so dangerous. We could get hurt -- maybe killed! Don't we have police and an army for that sort of job? Besides, some of those violations are popular. Who are we to oppose something so many people approve, just because it's a Supreme Law Violation? Just trust in the electoral process; things will work out in the end, you'll see.

     Thomas Jefferson noted in the Declaration of Independence that "all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." That tendency to preserve the multiply flawed known rather than risk the unpredictable unknown -- to prefer the devil we know to the devil we don't -- has its base in both history and good sense: few revolutions have produced successor regimes that were objectively better than the ones they toppled. But at what point do the evils become insufferable? What will we do about it, sheep that we've become, when that point is reached?

     More anon.

Some Thoughts On The Rule Of Law

     What with the violent assaults on Right-allied demonstrators by the masked thugs of “Antifa” – George Orwell, where are you when we need you? – and allied groups such as “Black Lives Matter” – if they matter, why do they kill one another in such appalling numbers? – while municipal police visibly refrain from doing their jobs, there’s been a lot of talk about the abandonment of the “rule of law.” Some of it has been on the mark. Some, but not much.

     The compressed interpretation of the phrase “rule of law” is that the law applies to all persons regardless of their identities or statuses. That interpretation has been uppermost in the minds of those protesting the police passivity during events in Charlottesville, Berkeley, and the like. Yet while evenhanded enforcement of the law is an aspect of the “rule of law” as the originators of the concept saw it, it’s far from the whole thing.

     As usual, no one else is addressing the larger subject, and so...

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1. The legislative aspect.

     Law as something other than the whim of those in power is an ancient concept. Yet few nations have cared to try the concept in practice. Fewer still have managed to do so.

     For there to be a Rule of Law in principle rather than merely by lip service, the corpus of laws must meet certain criteria:

• They must be clear of impact.
• They must not distinguish among persons.
• They must not contradict one another in any way.
• They must be made by a consensus-approved process.

     That last condition requires elaboration. The process by which laws are made or changed must itself be controlled by a law which commands overwhelming popular assent. Moreover, the control must ensure that the legislative process is highly stable. If that process can be changed, the manner of change must be:

• Public;
• Difficult;
• Deliberate.

     Otherwise, private citizens would be justified in thinking that whim had taken command of the law. Under such conditions, there cannot be sufficient stability in the law to command the required consensus. In this we glimpse the great importance of a supreme law that governs the making of all other laws.

     It should be clear from the above that the United States has not known a true rule of law for quite some time. All the requirements above have been violated repeatedly, sometimes with callous disregard for any consideration other than the whims of elected officials, at the federal, state, and local levels for more than a century.

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2. The executive aspect.

     Laws must be both made and applied. The executive agency of the state, with emphasis on its instruments of force, is the one that deals with application. Here appears the colloquial interpretation of the rule of law.

     Under a true rule of law, the executive cannot decree that the law only applies when he wishes. Neither can he modify the import of the law, reading into it new bits according to his tastes, or omitting from it parts that excite his displeasure. Of course, the wording of a law has great bearing upon that last matter: if the law is ambiguously worded, the executive can hash it up however he pleases, subject only to subsequent constraint by the judicial agency, if at all.

     Clearly, those conditions narrowly limit the latitude of the executive. That’s what the Founding Fathers had in mind when they wrote into the Constitution that the president “shall take care that the Laws be faithfully executed.” An executive not constrained in such a fashion would inevitably wield de facto “lawmaking powers” himself.

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3. The judicial aspect.

     The role of the judiciary in implementing a rule of law is subtler than it appears. Not only is a judge required to abide by the law as written; he is also forbidden to depart from the processes prescribed for determining if a law has been broken. Furthermore, he is required to adhere to the law’s stated penalties for violation, imposing neither lighter nor heavier burdens than the law allows. Well considered, well written laws thus constrain the judiciary almost as narrowly as they do the executive.

     The United States inherited the English legal tradition of the jury trial. In such a trial, the judge upon the bench acts solely as a referee. He imposes the prescribed trial procedures and rules when they have been violated. He charges the jury with the law as written. He superintends the development of the cases for and against the defendant, and has only the latitude specified in the law itself in imposing a sentence upon a defendant adjudged guilty. If those conditions are observed, it is perfectly reasonable to say that the true enforcers of the law are the jurors, without whose consent no man can be punished.

     As with legislative and executive excesses, many American judges have greatly exceeded their proper roles under a rule of law. The particularly egregious use of contempt charges to impose their will and to prevent lawyers from presenting important factors and arguments – including Constitutional principles that are supreme over all other aspects of the law – has been a subject of much recent discussion. In combination with prosecutorial discretion, which is so frequently and outrageously abused as to be a major scandal, this has made a mockery of American jurisprudence. But this is too large a subject for a Thursday morning essay.

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4. The public aspect.

     As I’ve written more often than I care to remember, for a law to be enforceable at all, it must command a popular consensus so overwhelming that those who would choose to violate it are of trivial numbers. My estimate, based on the “success” of various well known laws, is that if 2% or more of the public regards a law as morally or ethically irrelevant, that law cannot be evenhandedly enforced. This, too, bears upon the rule of law, especially with regard to prosecutorial discretion and the maintenance of overall popular respect for the law.

     Apropos of the above, officer candidates in our various military academies are taught, early and often, not to give an order that won’t be willingly obeyed. This is simple realism. Ultimately, respect for the officer’s authority arises from his subordinates’ willingness to obey him; he certainly cannot impose his will forcibly upon armed men who outnumber him. It’s the same with the law: a law that won’t be obeyed and cannot be evenhandedly enforced undermines the rule of law by weakening respect for the law and those who make and enforce it. In that lies a complete and irrefutable condemnation of the majority of the “laws” with which this nation has been albatrossed.

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     Of course there’s more to say; isn’t there always? But the above should provide a jumping-off point for discussing the state of American law and legal procedure, the “success or failure” of various laws, and the cultural foundation upon which both the law and the concept of the Rule of Law must stand. At this point, the law and the mechanisms by which we choose those who will make and enforce the law are founded on sand – and in large measure because the rule of law has been so shabbily treated this century past.

On The Handling Of Classified Information

     I worked in defense engineering for nearly thirty years. Much of my work involved the use of classified information (CI). In the years before the emergence of convenient, high speed networking and communications, the rules for handling CI were relatively easy to keep in mind:

• To receive CI, one must have a clearance equal to or higher than its classification level.
• One must also have “need to know,” which arises from one’s assignment and particular duties.
• CI documents must be kept secure at all times:
  1. When in use, they must be in the custody of a person cleared to possess them;
  2. When not in use, they must be in an approved, secured container.

     Before being granted my security clearance, I was required to attend a briefing on those rules. At the conclusion of that briefing, I was required to sign a witnessed document to the effect that I knew and understood the rules outlined above. As my Gentle Readers can see, they weren’t hard to understand.

     The key point of it all was this: By signing that document, I agreed that I was legally bound by the rules, as set out in the National Security Act and the Espionage Act, and could be prosecuted for violating them. Had I not signed the document, I could not be prosecuted; the First Amendment would have forbidden it.

     The essence of legally enforceable information security, as you can see, is the documented acceptance of responsibility for it. No one is ever legitimately allowed access to CI without first agreeing to be bound by the applicable laws. If there are other laws that require one’s signed agreement to be bound by them, I don’t know of them.

     There are some complexities here. If Smith, a clearance holder, provides CI to Jones, who has no clearance, Smith is prosecutable, but Jones is not – even if Jones knows that Smith is violating the law. However, under certain circumstances, if it can be demonstrated that Jones knows the CI is classified yet discloses it to others not cleared for it, he can be prosecuted. Federal law on the subject is a bit contorted, and not all federal judges have applied it the same way.

     In today’s heavily networked world, further provisions to the handling of CI have become necessary. In essence, they reduce to this:

• A network on which CI is to be created or stored must be cleared for those purposes. The network’s clearance level must be made known to all its users. Moreover, no user whose clearance level is lower than that of the network may be allowed access to it.
• CI must not be transmitted from a network on which it was legally created or stored to another, uncleared network.
• If CI created or stored on a cleared network becomes “hard copy” (i.e., a removable medium or a printed document), that item must be protected according to the earlier rules for CI documents.

     These rules are, of course, included in contemporary security briefings, and in the document a freshly cleared user must sign in acknowledgement of his responsibilities. The application of these rules to today’s most common form of non-audible communication – email – should be obvious.

     That’s why Hillary Clinton must insist that she doesn’t recall having been educated in the rules for handling CI. It also indicates that, should Clinton’s signed briefing agreement ever come to light, she could be prosecuted for her email practices. Whether that agreement can be found is the question of the hour.

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     I’ve often written that the security rules are in some ways an impediment to actual, effective information security. I continue to think so, at least as regards the rules for storage and for the creation of high clearance / “no need to know” classified documents control officers. (A significant number of recent espionage scandals have involved classified documents control officers.) But the rules are as they are, and are well known to anyone ever legitimately permitted access to CI. No “better way” has been proposed for the handling and security of CI in recent years.

     Perhaps the most important aspect of CI and its handling is that there should be as little CI and as few persons cleared to access it as possible. Obviously, there will be government officials who need access to it to perform their duties. The higher those officials are, the more subordinates they will have – and some of those subordinates will need access to the same CI as the boss. So the problem of limiting access is a stiff one.

     More, the problem cannot be confined to government. Private individuals will frequently be required to have access to CI, just as I was. The classification pyramid, which once rose seventeen levels into the sky (I was once told it went even higher than that, but I couldn’t verify it), is flattened somewhat for defense contractors: to Confidential, Secret, and Top Secret, each of which can be qualified further by the NOFORN (No Foreign Nationals) designation. Private workers allowed access to such CI must be as scrupulous as any government worker in its handling.

     Information disclosure is irrevocable. Once CI has been released to an uncleared person, there’s no way to retract it. Thus, the discovery of a “spill,” the jargon term for the movement of CI to an uncleared network, is always an occasion for extremely swift action in hope of remediation. It’s occasionally required the physical destruction of equipment in hope of preventing further transmission. (It’s also given rise to some well known gag lines such as “burn this before reading it” and “I could tell you, but then I’d have to kill you.”)

     Those persons charged with enforcement of the security laws are expected to take them very seriously, and the great majority of them do. The most recent disclosures about Hillary Clinton’s email practices horrify them, as is proper. They can see no distinction between the “extreme carelessness” with which FBI Director James Comey tagged her, and the “willful negligence” requirement for being charged under the National Security Act and the the Espionage Act. The notion that she should be allowed to go scot free appalls them, when they know that anyone else who’d done the same things would rot in prison for it. It makes a mockery of our beliefs about personal responsibility, justice, and of course the Rule of Law.

     Which, should Mrs. Clinton, demonstrably the most corrupt person ever to have attained a federal office, be elected president, might make “We Were Extremely Careless” a fitting epitaph for the United States of America.

Looking In The Right Direction

     Today, Dystopic favors us with an excellent essay. It’s long; it’s somewhat detailed. And it is absolutely required reading.

     Dystopic’s first stunner of an observation comes here:

     The Mob is alive and well, but where the old Mafiosos could be counted upon to generally keep their bargains, Hillary feels no such obligation. You are a tool of her will, or you are nothing at all.

     (Isn’t it remarkable that there are no Hillaries other than Hillary!^® Those of us who remember the First Commandment and the reason for it are a bit bemused by that. Well, a lot of pop princesses go by a single name these days. Kinda makes me wonder if the old bat can sing.)

     The above summons to mind an important distinction, one that’s becoming ever more important as our Ruling Elite^® solidifies and reveals its colors to all: the difference between being outside the law and above the law.

     I ranted on this subject some time ago. Yet in rereading that earlier essay, I find that I failed to draw the critical distinction as sharply as it should have been drawn.

     So of course, here I am again to rectify the shortcoming.

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     “To see, you must have vision.” -- Gregory Benford

     Many have commented on how America has grown “lawless” in recent decades. They point at phenomena such as urban violence, the plague of illegal drugs, the proliferation of “white collar” crimes, and propound a notion that Americans have lost their respect for the law. Note the direction in which their fingers are pointing: those Americans are pointing at other Americans.

     This is misconceived.

     When the late Sam Francis coined the term anarcho-tyranny, he had a different vector in mind:

     The elementary concept of anarcho-tyranny is simple enough. History knows of many societies that have succumbed to anarchy when the governing authorities proved incapable of controlling criminals, warlords, rebels, and marauding invaders. Today, that is not the problem in the United States. The government, as any taxpayer (especially delinquent ones) can tell you, shows no sign of collapsing or proving unable to perform its functions. In the United States today, the government works efficiently. Taxes are collected (you bet), the population is counted (sort of), the mail is delivered (sometimes), and countries that never bothered us are invaded and conquered.

     Yet, at the same time, the country habitually wallows in a condition that often resembles Thomas Hobbes’ state of nature—nasty, brutish, and short....

     What we have in this country today, then, is both anarchy (the failure of the state to enforce the laws) and, at the same time, tyranny—the enforcement of laws by the state for oppressive purposes; the criminalization of the law-abiding and innocent through exorbitant taxation, bureaucratic regulation, the invasion of privacy, and the engineering of social institutions, such as the family and local schools; the imposition of thought control through “sensitivity training” and multiculturalist curricula, “hate crime” laws, gun-control laws that punish or disarm otherwise law-abiding citizens but have no impact on violent criminals who get guns illegally, and a vast labyrinth of other measures. In a word, anarcho-tyranny.

     Francis wrote that in 1992. Should you ever need a perfect example of clear perception in the hands of a fearless thinker, make use of the above. It’s my principal reason for maintaining that despite his flaws Samuel Francis, like the late Joseph Sobran, was taken from us far too soon: indeed, when we needed him the most.

     Sam Francis knew in which direction to look for the source of our sorrows: upward, at the political elite from which virtually all federal officials and appointees are drawn. The making and enforcement of the law is entrusted to them by processes defined in the Constitution of the United States. And they do make laws. Ye gods and little fishes, do they ever make laws! But the laws they make are of less consequence than the laws they enforce...whether those laws exist or not.

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     “Miss Weatherly,” Sumner said with a note of regret, “I’m a lawyer. I was raised by a lawyer. He taught me to think of the law as our most precious possession. One of the questions he repeatedly insisted that I ponder was ‘What is the law?’ Not ‘What would I like the law to be,’ but ‘What is it really, and how do I know that’s what it is?’
     “My profession, sadly, has made a practice of twisting the law to its own ends. There aren’t many lawyers left who really care what the law is, as long as they can get the results they want, when they want them. So they play the angles, and collaborate with judges who think they’re black-robed gods, and generally do whatever they can get away with to get what they want, without a moment’s regard for what it does to the knowability of the law.
     “I care. I want to know what the law is, what it permits, requires, and forbids. I want my clients to know. And the only way to reach that result is to insist that the words of the law have exact meanings, not arbitrary, impermanent interpretations that can be changed by some supercilious cretin who thinks he can prescribe and proscribe for the rest of us.
     “The Constitution is the supreme law, the foundation for all other law. If it doesn’t mean exactly what its text says—the public meanings of the words as ordinary people understand them—then no one can possibly know what it means. But if no one can know what the Constitution means, then no one can know whether any other law conforms to it. At that point, all that matters is the will of whoever’s in power. And that’s an exact definition of tyranny.”

     [From Shadow Of A Sword]

     The case of Gibson Guitars is a perfect example of the enforcement of a non-law, specifically to benefit a political patron. It’s merely one of the most egregious cases; there’ve been many others. What distinguished it was Gibson CEO Henry Juszkiewicz’s willingness to go public with the details of the tawdry affair:

     “What is happening?” asks Gibson Guitar CEO Henry Juszkiewicz when he arrives at his Nashville factory to question the officers. “We can’t tell you.” “What are you talking about, you can’t tell me, you can’t just come in and …” “We have a warrant!” ”Well, lemme see the warrant.” “We can’t show that to you because it’s sealed.”

     While 30 men in SWAT attire dispatched from Homeland Security and the U.S. Fish and Wildlife Service cart away about half a million dollars of wood and guitars, seven armed agents interrogate an employee without benefit of a lawyer. The next day Juszkiewicz receives a letter warning that he cannot touch any guitar left in the plant, under threat of being charged with a separate federal offense for each “violation,” punishable by a jail term.

     Up until that point Gibson had not received so much as a postcard telling the company it might be doing something wrong. Thus began a five-year saga, extensively covered by the press, with reputation-destroying leaks and shady allegations that Gibson was illegally importing wood from endangered tree species. In the end, formal charges were never filed, but the disruption to Gibson’s business and the mounting legal fees and threat of imprisonment induced Juszkiewicz to settle for $250,000—with an additional $50,000 “donation” piled on to pay off an environmental activist group.

     Please read the whole article. It’s more than worth your time, especially if you believe that the Rule of Law is still respected in these United States.

     What all too often goes unremarked-upon is that the law de jure – statutes passed by Congress and signed by the president – is far less important than the law de facto – what the power of the State is used to impose upon Us the People. Sam Francis would tell you that the law de facto has become whatever our Ruling Elite^® decides it is at any given moment. Having succeeded in separating itself from the rest of us and closing off its borders against dilution by American patriots such as Stephen Graham Sumner, it will only enforce “laws” that advance or safeguard Ruling Elite^® privileges.

     Indeed, upward is the only direction in which to look.

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     Many Americans still believe that the Ruling Elite^® can be brought to heel through that mighty instrument, the Vote. That beautiful fantasy dissolved more than a generation ago.

     The electoral process, which was supposed to be a front-line defense against tyranny, rather than a last-ditch resort, has been captured by the major political parties. They realized, around 1988, that the behavior of Democrats and Republicans once raised to office had become too obviously self-serving – that the public would soon search for alternatives to both of them. So they contrived to put the whole business under the control of the Ruling Elite.^® A consortium formed by the three major television networks would control the reporting of national vote tallies. Supreme Court decisions would nullify local or regional attempts to protect the integrity of voting mechanisms. Gerrymandering, the newspapers, and judicious use of bribery, blackmail, and intimidation would pacify any straggling pockets of resistance.

     That this should have happened immediately after the second of Ronald Reagan’s terms in the White House is perfectly consistent with Ruling Elite^® priorities and conduct. Reagan was a maverick by their standards; he’d established his independence during his eight years as governor of California. His international boldness deprived them of one of their most important tools for engendering fear and submission in the populace: the Soviet Union. They barely managed to thwart him domestically through the inherent inertia of the “permanent government:” the millions of federal appointees and bureaucrats whose positions are protected by Civil Service law. The repetition of such an upheaval could not be countenanced. Indeed, it’s an open question why Reagan was willing to accept Ruling Elite^® member-in-good-standing George H. W. Bush as his vice president, and thereafter to endorse him as his successor.

     Many believe that the rise of Donald Trump to the political fore indicates that significant change remains possible. I dislike to dash anyone’s hopes, but Trump’s decades of maneuvers in the private sector suggest that should he attain the presidency, he’ll accommodate the Ruling Elite^® to a much greater extent than his more ardent supporters imagine. Those elitists, after all, are already in the seats of power, with the levers in their hands. He and his family have a great deal to lose should they take direct aim at him and his fortunes.

     We’re not voting our way out from under our political masters.

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     “To live outside the law, you must be honest.” -- Bob Dylan

     To return to Dystopic’s essay cited at the start of this tirade:

     I would sooner have a Mafia don in office, than Hillary Rodham Clinton, for at least some honor may be found in them, some scrap of understanding that screwing their people too much will result in the death of the host. Hillary has none of this. I doubt she even cares for her own daughter, or her family line. It is all about today, and she could not care less what happens after she is dead. The entire species could be rendered extinct, and what would it matter to her? She got what she wanted, in the end. The new nobility has none of the restraint of the old order.

     Either way, though, America’s inner rot has already killed the nation. The outer shell endured for a time, but now that too is creaking. Collapse is imminent. But given all of that, I am sure it is time to start worrying about the gender of horses in the Olympics, as SJWs are wont to do.

     The organized crime families of the pre-World War II era were actually a force for order in certain ways. They did rule their illegal bastions – liquor and prostitution, mainly – with an iron fist, such that each family’s “turf” was deemed inviolable by the other families or any other force, but in the enforcement of those accommodations they confined the violence to “contestants only.” Their leaders understood that the providers of their profits would turn against them were they to cease being a tolerable source of illegal but valued pleasures and become a bloody pox upon the cities where they flourished.

     The Ruling Elite^® doesn’t fret over such possibilities. Its members believe themselves not only above the law but immune to correction. And indeed, they’ve labored mightily over their defenses against us. The steady penetration of federal action into every smallest community and every smallest area of life, the ever expanding list of federal client groups, the ongoing federalization of local and state police, the control of the media, and the unresisted assertion of federal power via “laws” that do not exist – see the Gibson Guitars case above – have produced a curiously sheeplike state of acquiescence among Americans generally. Yes, there are survivalists and preparationists who defy that pattern, and may God bless them all. But the overwhelming majority has decided, consciously or not, to submit.

     Those of us who will not submit to those who have placed themselves above the law must prepare ourselves to live outside the law, and to cleave rigidly to Bob Dylan’s dictum quoted above. Outside the law has become the only place for men and women to whom freedom and justice are more than sounds occasionally emitted by politicians. What our “official vendors” sell under those labels is too shoddy to be borne any longer. We must return them to private manufacture.

     Have a nice day.

The Fifth Stage

     The Comey announcement of yesterday has elicited hurricanes of commentary from coast to coast, and in other lands as well. Many persons have taken it as foreordained – i.e., that we should not have expected a criminal indictment against a Clinton, a member of the most notorious crime family with the broadest reach in the United States. Others have speculated about whether the FBI director had been “paid off” with an offer of a position at the Clinton Foundation, or “warned off,” such that he feared that the Clintons and / or their allies would take personal vengeance on him for recommending an indictment. Others have concurred in the assessment that this is merely one more indication that “Laws are for the little people.”

     My focus on the nature of American law inclines me in a somewhat different direction.

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     The central principle of American law is constitutionalism: i.e., that there is a Supreme Law of the Land knowable by all, and that all other laws must be compatible with it. No particle of the U.S. Constitution is more explicit:

     This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [Article VI, Section 2]

     Without a Supreme Law, no other law can be popularly evaluated for validity or justice. Of course, there’s more to it than that, for the Supreme Law itself is subject to evaluation, which is why the Founding Fathers incorporated a provision for amending it. In any case, the concept of a Supreme Law that has the “essential consensus” (Milton Friedman) of those over whom it rules, and with which all legislated laws must conform, has been fundamental throughout our history.

     The portion of our Supreme Law that’s of particular importance today is Amendment XIV: specifically, this portion:

     All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added by FWP.]

     Now, the clause above refers explicitly to the states, which in constitutional language exempts the federal government from its power. “Incorporation doctrine” has been variably applied by the courts, and usually downward, such that provisions at one time believed applicable only to the federal government became imperative against the states. However, no jurist has ever held that it does not bind the federal government. Girouard v. U.S. (1946) explicitly applied the Equal Protection clause to the federal government, nor have there been any rulings to the contrary since then.

     Along with the more common interpretation of “equal rights,” “equal protection” is supposed to mean equal enforcement: i.e., that no one shall be denied the enforcement of a law against another party simply because the accused party is “special.” In that regard it’s the Constitutional statement of the Rule of Law, which until then had been a part of American legal practice only by implication from our common understanding of justice.

     Comey’s decision not to recommend the indictment of Hillary Clinton under the National Security Act flies in the face of the equal protection doctrine. It openly mocks the Rule of Law as it’s been understood since the Founding. It disparages the Constitution (as amended) as the Supreme Law of the Land.

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     Many persons are authorized to access classified material. Before being granted access, all such persons are required to affirm that they’re aware of the provisions of the applicable laws. Those laws dismiss “lack of intent” as a defense for the mishandling of classified information. To this point, none of those brought to trial under the “gross negligence” provisions of the National Security Act and / or the Espionage Act have been deemed exempt from its enforcement. If she is not indicted and tried, Hillary Clinton will be the first.

     What justification can there be for such a departure? What could Comey or any of the others involved in this train of events say to those who’ve been punished for “gross negligence?” Is there any conceivable train of logic that could rationalize punishing some but not others for exactly the same offense?

     To these old eyes, it appears that Hillary Clinton is getting off because to the powers that be, she’s “special.” They regard her as “one of us,” and therefore exempt from the laws that bind those of us outside their circles. The Rule of Law as expressed by Amendment XIV is limited in its scope to those not admitted to the councils of the powerful.

     If Comey’s decision stands, it will be the first blatant announcement of an American aristocracy in my memory.

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     The late Elisabeth Kubler-Ross formulated a concept of grieving divided into five stages:

1. Denial of the onrushing loss;
2. Anger and a frenzied lashing-out;
3. Bargaining in an attempt to avert the loss;
4. Depression and disengagement from the rest of life;
5. Acceptance of the inevitability of the loss and preparation for it.

     There is some overlap between adjacent stages, but one thing is quite definite: the process is unidirectional. It cannot be reversed. No one retreats from bargaining to denial. No one can back away from depression to anger. Acceptance, the fifth stage, is final.

     Those of us who love freedom and have cherished the United States of America as its torchbearer have lingered in the third and fourth stages for some time. With the Comey announcement (and the high probability that no indictment will ensue), we tremble upon the border of the fifth stage: the acceptance that the country we have loved and have hoped to rescue from the pits of tyranny has “gone over the edge,” and cannot be rescued by any human effort.

     Once loss has been accepted, it is irreversible. No one ever retreats from the fifth stage of grief. What will follow is anyone’s guess.

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     Though he makes no explicit linkage to this travesty of justice, Dystopic’s essay of today offers a number of relevant insights. I highly recommend it.