Judging Freedom - Iraq & Gulf war authorizations_ Pence Must Testify_AG Garland & Section 702

Episode Date: March 30, 2023

Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Thursday, March 30, 2023. It's about 10 minutes after 10 in the morning on the east coast of the United States. Here are your hot topics, and one of them involving the arrest or kidnapping, however you want to look at it, of a Wall Street Journal reporter in eastern Russia by the Russian government. The worst possible time for this to happen is obviously a hot story. We'll get to it in a minute. Yesterday, the Senate of the United States voted by a very significant number, about 66 to 31, to repeal the authorizations for the use of military force of 1991 and 2002. So Congress, the Congress of the United States, which under the Constitution is

the only entity in the government that can declare war and theoretically initiate official military violence, hasn't declared war since World War II. That's a good thing, except we've fought a dozen wars since then, either because presidents have done it on their own or because Congress has enacted some sort of amorphous thing called an AUMF, authorization for use of military force. Congress has enacted six AUMFs, all of which are still outstanding. And because they are amorphous in whom they target. They are ambiguous in their rationale and they are silent with respect to their endpoint. Presidents have used these AUMFs for all kinds of things. When Donald Trump decided, President Trump decided he wanted to blow away General Soleimani, an Iranian general

would flung to Iraq to have lunch with an Iraqi general. The Iraqis theoretically our allies. The president directed the CIA to use a drone to murder the general, and he did, and when challenged, the president's people relied on one of these AUMFs. It almost doesn't matter which one they rely on because they're so ambiguous and so amorphous. The one they have typically relied on is the one from 2001. That's the one that Senator Rand Paul proposed last week be repealed. That vote he lost by nine in favor and 86 against. Well, the vote yesterday was to repeal the one from, you're going to believe how old this one is, 1991. That's George H.W. Bush. That's the Gulf War. Yes, the authorization to use military force against the nations in the

Gulf region that the President of the United States determined were dangerous to their neighbors. You could probably say that about any country in the world, including the United States. That resolution is still the law of the land. That's the one that the Senate voted, the House has yet to vote on this, to repeal yesterday, 1991. It also voted to repeal the authorization for use of military force in 2002. That's the reauthorization for the invasion of Iraq. So 1991, that's the Gulf War. That's the first invasion of Iraq. 2002, that's the second invasion of Iraq. Hasn't Iraq been our ally and we still have a law on the books that we can invade it and its neighbors at will? Well, the Senate finally came to its senses on this. All the Democrats

and half the Republicans voted in favor of this. The 31 who voted no, all Republicans. They all want a president, whoever he is, Barack Obama, Donald Trump, George W. Bush, Joe Biden, Elizabeth Warren, Bernie Sanders, Ron DeSantis, whoever it is, they don't care. They just want the president to be able to kill. President Biden, who when he was in the Senate, typically spoke out of both sides of his mouth in favor of and against these resolutions. He spoke against them because he felt they were a loaded gun on the desk of the president. Agreed. He spoke in favor of them because they were popular at the time, typically Joe. He voted in favor of them because they were popular at the time, typically

Joe. He voted in favor of them. Now, as the president of the United States, he's in favor of the repeal. So if this passes the House, he will sign it into law, and those two authorizations for the use of military force will no longer be the law of the land and the president, Joe Biden and any of his successors, will not be able to cite them as legal authority for the use of military force. The same should happen with all the other authorizations for the use of military force. This is too little, too late. It is a step in the right direction. I'm happy to see the unique and unusual coalition of senators, ideological soulmates and ideological adversaries who voted in favor of this. I'm not surprised of the Republicans, the Lindsey Graham crowd, the neocons wanting more war. So I'm happy that these are being repealed, but they all should be repealed.

Late yesterday afternoon, well, actually it happened last week, but it was revealed late yesterday afternoon, a federal judge ordered former Vice President Mike Pence to testify before a grand jury investigating the acts of former President Donald Trump in stirring up the, in organizing, orchestrating and stirring up the events of January 6th. So the grand jury subpoenaed the vice president. Before he could move to quash, as in squash, the subpoena, the government moved to compel him to comply with the subpoena. So his lawyers were a little slow at the game. They then cross-moved to quash the subpoena, and they basically had two arguments. One is executive

privilege. What the president and the vice president say to each other is privileged and can't be revealed to a jury and certainly can't be compelled to be revealed. The other argument, a little bit more nuanced, was the speech and debate clause. The vice president is also the president of the Senate, and he was presiding over a joint session of Congress, or about to, in his capacity as the president of the Senate. And therefore, what he said on his way there, what he said while he was there, what he observed when he was there, was in his capacity as the president of the Senate. Okay, what does that mean? That means as a member of Congress, he's protected by the speech and debate clause, a clause in the Constitution that insulates members of Congress from being compelled

to explain or justify or talk about what they do on the floor of the House or the floor of the Senate on their way there, on their way home, or in preparation for that work. So the judge here said, well, there's no executive privilege for two reasons. First of all, you've already discussed this in your book, Mr. Vice President, so you've waived that privilege. And if the privilege belongs to the president, he allowed you to waive it by not challenging your book. Secondly, this privilege only applies when it's confronted with a subpoena in a criminal investigation. It only applies to sensitive national security, diplomatic secrets, and military secrets.

And whatever you said to President Trump and he said to you about whatever kind of a stunt he wanted you to pull by rejecting electoral votes was not in that category, and therefore you're going to have to talk about it. So bottom line is the former vice president of the United States will in secret testify about the events leading up to and for the most part, not what happened on the floor of the House when he was presiding over the joint session. But everything short of that, he'll have to testify to before a grand jury. I think he made a political mistake in opposing this. He's just about to run for the Republican nomination for president. He shouldn't have feared having a conversation with the prosecutors before the grand jury. He lost that D.C., which would hear these appeals, has an emergency procedure now whereby the appeal is resolved in 48 hours, not 48 days or 48 weeks, as is usually the case. So the old Trump playbook of delay, delay, delay doesn't work anymore, at least not with federal judges in Washington, D.C.

Also in Washington, D.C. yesterday, the Attorney General Merrick Garland attempted to explain to the House Judiciary Committee why he needs the ability to spy on Americans without a warrant. This is Section 702 of the Patriot Act, which will expire at the end of this year. You've heard me talk about it. If you read my columns that come out on Thursdays, and you can get the columns at judgenap.com, judgenap.com, you know that I have explained that Section 702 allows warrantless spying on non-Americans. Why should you worry about that? You should be terrified about it because the Justice Department and the NSA and the CIA and the DEA and the BATF, all those American federal government agencies that have their own intelligence divisions, have interpreted Section 702 to allow them to spy on Americans without a search warrant. So here's how it works. If you're an American and you talk to a foreign

person or a foreign person calls you, you can be spied on without a search warrant because you spoke to this foreign person. You can call your cousin in London. You can call an art dealer in Florence, Italy. It doesn't matter. Foreign person, you can be spied on without a search warrant. And then whoever you talk to can be spied on without a search warrant. And whoever that person talks to can be spied on without a search warrant. And whoever that person talks to can be spied on without a search warrant. That goes out to six degrees. So if you do that enough times, you'll see quite easily how the FBI, CIA, NSA can spy on all Americans without search warrants. How does that happen? Well, the NSA and the CIA, the people that

actually do the spying, even the FBI, when they do the spying, they're supposed to do it for national security purposes. If they do it for law enforcement purposes, then they can't use whatever they've learned in the spying because the Fourth Amendment prohibits that. The Fourth Amendment, of course, prohibits all spying without a search warrant. But the feds, you'll hear from the head fed in a moment, the feds have interpreted it as meaning that the Fourth Amendment only stops them from spying on you for law enforcement purposes. So suppose the federal spies come upon evidence of a crime. Well, then they take that and they put it in a separate database and they don't use it for law enforcement purposes, unless the

FBI comes knocking and wants to examine the database, which they make available to the database. This is ridiculous. How many names are in the database? 3.8 million, the last time this was collected and announced, that's from 2021. If you take that 3.8 million Americans who spoke to foreign persons as to which there was some evidence of criminality in the conversation and multiply it out six degrees of separation, because they can spy on whoever you talk to to the sixth degree, even though by the time you get to that sixth degree, you don't even know that person. Just do the math. That exceeds 330 million Americans. That's spying without warrants on every person in America in utter and total defiance of the Fourth Amendment to the Constitution. When this statute was about to expire during the Trump administration, the

president asked me what I thought about it. I said, Mr. President, this is the same authority they used to spy on you. Don't sign this. He did. Paul Ryan, the Speaker of the House, Mike Pence, the Vice President of the United States, Mitch McConnell, the Republican leader in the Senate, they all persuaded him of the same nonsense you're about to hear from Merrick Garland. We need this to keep us safe. We need to assault your liberties. We need to violate the Constitution. We need to cut holes in the Fourth Amendment in order to keep you safe. All right, here's the clip. First, you'll see a member of Congress saying a little less passionately what you just heard from me.

And then you'll hear utter nonsense, utter unbelievable nonsense out of the mouth of Merrick Garland, the attorney General of the United States. Take a listen. I sit on the Intel Committee. I understand why we have FISA, what we use it for, what value it brings to our nation's security. And I still don't trust the Department of Justice, the FBI, and other federal agencies to use FISA in accordance with what it is intended for, and that is to keep Americans safe and not to be used against Americans who are not a threat to the country. And that is why one of the first things I did when I came into the Justice Department and received one of the so-called 702 reports about the noncompliance incidents was to issue a memorandum to the FBI saying that these had to be fixed, that we had to put into place new methods to ensure that they didn't occur. I've asked the Deputy Attorney General to task management of this, and she has done that. The FBI has put up an internal office of audit for the purpose of ensuring this. We've changed the way in which the FBI software for querying 702 occurs.

We have really a fantastic independent set of auditors in our national security division. The consequence of just these changes have been an almost 90% reduction in queries of Americans. So what he's talking about, the queries of Americans, that's the database of Americans as to whom there was some evidence of criminality. Listen, I'm not in favor of crimes any more than anybody else is, although honestly, most federal crimes are unconstitutional. In fact, all of them are unconstitutional except treason and debasing the money supply. So those are the only two,

two, two, just two federal crimes that the Constitution authorizes. There are 5,500 federal crimes and most of them criminalize harmless behavior. Another argument for another time. Did you hear the Attorney General talk about warrantless spying? Absolutely not. He's terrified of using that phrase because he knows that it'll be repeated, warrantless spying, warrantless spying, warrantless spying, out of the mouth of the Attorney General over and over and over again. Look look this is not just a joe biden a problem this started with george w bush he approved

a barack obama approved that as i told you donald trump approved that even though it had been used by the deep state against him and now joe biden wants to approve it they want america they have wanted and now joe b does, wants the American federal government to be able to spy on you and me without search warrants, just as they do today. Look, as a practical matter, if this statute is not extended, they're going to spy anyway. But if they do so, Congress can cut their budgets every time they do so. Does Congress have the fortitude to do that? Probably not. Do these spies have dirt on members of Congress? They probably do. The Republicans in the House who say they're against

extending Section 702, they'll probably cave. We'll see where all this goes. Early today Moscow time, a reporter for the Wall Street Journal by the name of Aaron Gershkowitz, whom I don't know. I have a lot of friends at the Wall Street Journal because they're in the same building as Fox. We worked in the same building and took the same elevators for years. Didn't know we share the same ideology, but we became friendly. I don't know Evan. He's been a reporter for the Wall Street Journal since 2017. Before that,

he worked for the New York Times. He was arrested in Moscow today and charged with espionage. This is not Brittany Griner with some marijuana seed oil in her luggage. This is potentially a capital crime. This is potentially the death penalty or potentially life in prison in Russia because the Russians claim he was engaged in espionage and that they physically, literally caught him with Russian state secrets in his hands. Well, who knows? He was brought before a judge this morning. The judge said, okay, there is a case here. The judges, of course, are appointed by President Putin or his people. You'll appear in court next on May 29. So he's going to be locked up for at least the next month. The diplomatic gears are rolling. I don't know how this ends.

It's almost inconceivable to me that a reporter for the Wall Street Journal would be engaged in espionage in Russia. But that's what he's charged with. We don't know much about the case. We don't know exactly what they say he had. We only know that he was arrested by the Russian security services, the FSB, which is the successor to the KGB. It's the same damn thing. All they did was change their name and it has different initials. Uh, they arrested him not in Moscow, in eastern Russia over towards China. What he was doing there, he's a journalist. He's the head of the Wall Street Journal's journalist office in Moscow.

He's their editor and chief reporter. He was doing what journalists do, which is engaged in investigative journalism and reporting what he sees. He wrote a report on the Russian economy as recently as four days ago. The report said the Russian economy is starting to show cracks. That's the last thing President Putin wants publicized. Could this be revenge for that? Who knows? Did he really have Russian national secrets in his hands? Hard to believe that he did. What I've just said is all I know about this. We know very little about it. When I say more as we get it, I literally mean it in this case, because more will come out in the next days and weeks. In the meantime, Evan's family suffers, the Wall Street

Journal pulling their hair out, and he's sitting in solitary confinement somewhere on his way to Moscow. More as we get it on all of this. Judge the, Tony Schaefer this afternoon at 3.30 Eastern on all of this stuff, particularly on the fascinating new alliance between Russia and China, which happened right under America's nose. We knew it was happening. What did we do about it? Attack the two of them. Judge Napolitano, if you like this, like and subscribe. Judge Napolitano for judging freedom.