THE FIRST AMENDMENT IS UNDER ATTACK; AN ATTEMPT TO STIFLE FREE SPEECH

Yesterday twelve former senior intelligence officials issued a joint statement saying that President Trump’s removal of former Director of the CIA John Brennan’s security clearances has “everything to do with an attempt to stifle free speech.”

The officials added, “We have never before seen the approval or removal of security clearances used as a political tool, as was done in this case.” They described the president’s actions as “inappropriate and deeply regrettable.”

What did the President say in his defense? 

In a statement released last Wednesday President Trump justified his actions by saying

any benefits that senior officials might glean from consultations with Mr. Brennan are now outweighed by the risks posed by his erratic conduct and behavior [which] has tested and far exceeded the limits of any professional courtesy that may have been due to him.

The president added that “Mr. Brennan has a history that calls into question his objectivity and credibility.” (Coming from a president who, according to the Washington Post, “has made 3,001 false or misleading claims” as of last May, it is quite ironic that he should question any one else’s “objectivity and credibility.”)

One example the president gives of Brennan’s questionable actions is the occasion when Brennan

denied to congress that CIA officials under his supervision had improperly accessed the computer files of congressional staffers [when in fact] The CIA’s Inspector General [IG], however, contradicted Mr. Brennan directly, concluding unequivocally that agency officials had indeed improperly accessed staffer’s files.

Trump’s claim however is misleading. A subsequent report by a CIA Accountability Review Board concluded that the CIA actions were not illegal and did not breech any agreement made between the Senate and the CIA. Is President Trump familiar with that report? Or is he true to form and simply lying?

[Read the Huffington Post analysis of the report]

It is also worth noting that Brennan apologized for his contribution to adding confusion over the matter. As McClatchy reported: “[Senator] Feinstein called Brennan’s apology and his decision to submit [to the IG] findings to the accountability board “positive first steps.”

In any event, if President Trump thought Brennan’s supposed shortcomings with respect to the C.I.A.’s access of Senate computer files merited removing Brennan’s security clearance one has to wonder why it is only in the midst of recent criticism from Brennan that Trump has suddenly expressed this judgement.

President Trump also said in his statement statement

Mr. Brennan told congress that the intelligence community did not make use of the so-called Steele Dossier in an assessment regarding the 2016 election, an assertion contradicted by at least two other senior officials in the intelligence community and all of the facts.

This is misleading at best. As the New York Times has said

The New York Times has reported — and Republicans who hold the majority vote on the House Intelligence Committee have concluded — that the [Russia] investigation began in July 2016 and was prompted by the actions of George Papadopoulos, a foreign policy adviser to the Trump campaign.

Mr. Papadopoulos told an Australian diplomat in May 2016 that Russia had political ‘dirt’ on Hillary Clinton, the Democratic presidential candidate. Australian officials then alerted their American counterparts of the conversation with Mr. Papadopoulos.

The information provided by Mr. Steele did not reach F.B.I. officials who were investigating Mr. Trump’s campaign until mid-September of 2016, The Times reported in May. 

Next, President Trump claims:

Mr. Brennan has recently leveraged his status as a former high-ranking official with access to highly sensitive information to make a series of unfounded and outrageous allegations- wild outburst on the internet and television- about this Administration.

He has made no reference to which “highly sensitive information” Mr. Brennan revealed to the public.

President Trump’s statement furthermore describes Brennan’s public statements as  “increasingly frenzied commentary,” attacking Brennan’s state of mind.

What does appear indeed frenzied is the approach president Trump has taken to remove Brennan’s security clearance.

As the New York Times reported:

The standard revocation process includes memos that outline why a clearance is being withdrawn, and would allow the former official to offer a defense or a rebuttal. In Mr. Brennan’s case, the C.I.A. did no such review of his behavior or comments.

Not only is the president contradicting security clearance removal precedent, but he made it even more emphatic in a Wall Street Journal interview that he was essentially punishing Brennan for his involvement in the Russia investigation, implying that anyone having anything to do with the investigation could theoretically be victim of Trump’s vindictive actions. 

President Trump reflected on Brennan and the Russia investigation, saying to the Wall Street Journal, “I call it the rigged witch hunt, [it] is a sham. And these people led it! So I think it’s something that had to be done.”

According to the President then, because he thinks the Russia investigation is a “rigged witch hunt” and “a sham” that Brennan participated in, Brennan should have his security clearances removed. 

Considering only Brennan’s loss of security clearance, this might seem only to be an obstruction of justice and an abuse of power, but in light of there events of this week, it is clear that this is a piece of a broader attack on the first amendment- freedom of speech and of the press, specifically.

Recall the fact that Trump described Brennan’s public statements as “increasingly frenzied commentary”- referring most likely to Brennan’s claim that Trump’s deference to autocratic Russian President Vladimir Putin, and refusal to acknowledge the unanimous findings of the U.S. intelligence community, is treasonous.

Trump cited this as part of his rationale for stripping Brennan of his security clearance but Brennan is permitted by the First Amendment to say whatever he wants about the president (so long as he does not reveal confidential information).

The Chicago Tribune reported today that former Trump aid Omarosa Manigault Newman is being attacked for her criticism of the President. Omarosa has released tapes embarassing to the president, such as a conversation between Omarosa and Lara Trump where Trump tries to silence Omarosa with hush money upon being fired by President Trump’s chief of Staff, John Kelley. She’s also written a tell-all book “Unhinged” making claims that there is a tape of the President saying the N word, among other claims.

It has also just been reported by the Associated Press that

Omarosa Manigault Newman has a stash of video, emails, text messages and other documentation supporting the claims in her tell-all book about her time in the Trump White House, a person with direct knowledge of the records told The Associated Press Friday.

President Trump this week embarrassed himself and incited tremendous outcry when earlier this week he referred to Omarosa as a “dog,” giving the public one more example of how Trump deals not in reason or evidence based criticism of his own critics, but rather, resorts to dehumanizing insults.

The Chicago Tribune adds:

Trump campaign litigation counsel Charles Harder…sent a letter to Simon & Schuster executives threatening that the book’s publication would subject the company to liability for ‘substantial monetary damages and punitive damages.’

In the letter, according to the Chicago Tribune:

Harder said that excerpts of the book ‘contain confidential information and disparaging statements’ and that the Trump campaign’s potential claims against the publisher include tortious interference and inducement of Manigault Newman to breach her NDA [Nondisclosure agreement] with the campaign.

‘Now that you are aware of these contractual provisions, and Ms. Manigault-Newman’s breaches thereof, the Company will have claims against you, and all persons working in concert with you, should you proceed with publishing and selling the Book,’ Harder said, according to a copy of the letter obtained by The [Washington] Post.

The Chicago Tribune reports that Simon & Schuster outside counsel Elizabeth McNamara said Harder [the Trump campaign lawyer]

did not identify any particular excerpts as false, and the Trump campaign ‘does not have a viable legal claim merely because unspecified truthful statements in the Book may embarrass the President or his associates.’

In other words, Omarosa is being harassed- in fact, Trump reportedly wants Omarosa arrested – and he is attempting to prevent her from speaking, because her book makes the President look bad to the public.

While Simon & Schuster has said it will not stop publishing the book, the fact is the President of the United States swears an oath to uphold the constitution and by attempting to prevent Omarosa for exercising her first amendment right he is in direct violation of the constitution. He is not doing what he has sworn to do.

Washington Post Columnist Jennifer Rubin explains what she thinks ought to happen:

In a perfect world with lawmakers on both sides committed to upholding the Constitution, there would be bipartisan agreement on the need to begin impeachment hearings. there are more than enough grounds to commence hearings based on what we know to date and on Trump’s public conduct, including abuse of his authority over security clearances, his other assaults on the First Amendment, his blatant attempts to interfere with the Russia investigation….his drafting of a phony cover story for the June 2016 Trump Tower meeting, his false public denial about payment of hush money to Stormy Daniels, etc.

It need not be “a perfect world” however, for Congress to do what it ought to do. It just needs to be a slightly more honest world- a world with a touch more integrity.

Further, perhaps if enough Americans make it blatantly clear to congress that they will not win re-election if they fail to impeach, congress will act. Trump’s base may be hard to crack but it’s not invincible and not immune to a tripping point that sways supporters from his hypnotic grasp.

People are speaking out in increasing numbers.

These recent first amendment attacks are happening the same week that hundreds of newspaper editorial boards condemn the president’s constant attack on the press,- calling the press “the enemy of the people” for example- after the Boston Globe suggested they all do so.

Showing how visceral the President’s attacks on the press are,  Washington Post columnist Catherine Rampell reminds us:

When unhappy with Post coverage in particular, Trump has threatened government action against Amazon in an apparent attempt to financially punish its chief executive, Jeffrey P. Bezos, who independently owns the paper.

Rampell adds:

Journalists and media owners are hardly the only ones whose job or financial security Trump has targeted from his bully pulpit. He called for the firing of National Football League players who kneel in protests during the national anthem. NFL owners, in a secretly recorded meeting in October, expressed concern about the president’s impact on their bottom line.

The president has been so reckless in his attacks that his removal of Brennan’s security clearances has awakened the anger of a retired Navy Admiral who oversaw the raid that killed Osama bin Laden,  William H. McRaven. McRaven wrote: I would consider it an honor if you would revoke my security clearances as well, so I can add my name to the men and women who have spoken up against your presidency.”

McRaven says of Trump: “Through your actions, you have embarrassed us in the eyes of our children, humiliated us on the world stage and, worst of all, divided us as a nation.”

It is interesting that McRaven notes Trump’s “McCarthy-era tactics” because when McCarthy enraged people in the military during his “witch hunt” for attacking the first amendment it ended his political career and was met with a historical response. McCarthy was told: 

“Until this moment, Senator, I think I never really gauged your cruelty or your recklessness. Let us not assassinate this lad further, senator. You have done enough. Have you no sense of decency?”

When will congress tell Trump “You have done enough” and impeach him? Or, are there too many among us willing to sacrifice our First Amendment rights? 

A BRIEF ON THE SUPERIORITY OF NATURAL LAW

-An evaluation of the major theories of jurisprudence, with an explanation as to why the ‘natural law’ theory is the best one

naturallaw
John Locke. Philosopher & Advocate of “Natural Law”. IMAGE VIA SIR GODFREY KNELLER VIA https://commons.wikimedia.org/wiki/File:Godfrey_Kneller_-_Portrait_of_John_Locke_(Hermitage).jpg
(Note: I originally stated in this post that I wanted to be a philosophy professor. That is no longer the case. I want to concentrate on advancing a Social Democratic agenda via activism and commentary.)

 

All questions pertaining to politics and law, in my view, are a result of one question that is so consequential that its answers can cause genocide, or protect the freedom of individuals so that they may thrive.

The question is: “what should people be allowed to do, and not allowed to do?”

Answers to this fundamental question give us political philosophies and theories of jurisprudence. As someone who aspires to be a philosophy professor, and has run for political office three times, I have had much to say about political philosophy, and yet little about that branch of philosophy called jurisprudence.

Now I shall for the first time say a bit on the topic. In my opinion, the “natural law” theory is the superior theory of jurisprudence, and is so because it is based on reason (a word with many different definitions. For the purposes of this paper, when I refer to reason, I refer to non-contradiction) and morality.

That being said, there are some valid criticisms of other aspects of the theory, in particular, the assertion by some, that natural law is necessarily based on a God, and also, the fact is, some proponents of natural law theory have misapplied it.

Before I elaborate further, I shall be clear about exactly what natural law theory is said to be. In an academic outline on the term “natural law theory,” where it is also referred to as “classical naturalism,” it is defined as “a group of theories that contend, in a variety of ways, that law is to be identified by reference to moral or ethical (as well as formal) criteria of identification.” (Principe, 1)

I think it is worth adding that most proponents of classical naturalism- including Grotius, Saint Thomas Aquinas, and John Finnis (Banks, O’Brien, p. 82) (as well as Locke, even if merely by implication) to name just some- believe that inherent to the discovery of morality and natural law is the application of reason.

The standard of reason that is upheld by so many ‘natural law’ theorists is, in my opinion, its most important and fundamental element, for, as I view it, everything in life should be and absolutely can be approached via reason. (As Aristotle would say, A is A, i.e., a thing is itself, therefore A cannot be B, or C, or D, ad infinitum, i.e., a thing cannot be both itself and not itself.)

In my view, the very proof for this lay in the fact that it is empirically verified when one sees, or hears, or even feels with his or her skin, the letter “A,” and not any other letter, and thus, no other standard of knowledge should be used, as it would be incorrect, irrational, illogical, contradictory.

This is an epistemological idea, however, that every other major theory of jurisprudence introduced by Banks and O’Brien in their textbook on the American Judicial System, refuses to accept, either by a most obvious and fundamental misapplication of reason, or the complete disbelief that reason is the correct standard, or even a possible one.

For example, consider what I believe to be the profound irony and most basic contradiction of legal positivism.

We are told that according to legal positivism, “law is empirically discovered by reason,” yet on the other hand, we are told that law is “free from moral judgements about what the law should be.” (Banks, O’Brien, p. 85)

But a person cannot be both rational and legally amoral.

In fact there is no such thing as legal amorality.

That which one calls “moral” is how one thinks he should fundamentally treat himself and others, or put another way, what is a right action, and what is a wrong action.

For example, in my view of morality, right actions are ones that a person takes in order to thrive, which means he or she must take care of him or herself first, out of self-compassion, and should, further, do for others, out of compassion for them, whatever he or she is best equipped to do, when he or she can.

I call this the “morality” or “ethics” of “compassion.”

This necessitates political action- specifically, the protection of individual liberty, with safety-nets, to protect the integrity of individual liberty, i.e., protection against a laissez faire state where the utterly immoral people exploit the highly virtuous ones.

But all moral views necessitate political/legal action. Quite literally, a legal view that claims morality should be kept out of law merely confesses that one thinks implicitly that it is moral for the law to allow and prohibit particular actions, but, at least as I see it, either they do not recognize the implication or they are being dishonest.

 

At least legal positivism claimed to be rational. American Realism, according to the outline referenced earlier, is fundamentally skeptical, and “play[s] down the role of established rules (or the ‘law in books’) to discover other factors that contributed towards a judicial decision in order to discover the ‘law in action.’” (Principe, 2)

Moreover, American Realism claims to discover “what is empirically and pragmatically ‘realistic’ about judging” based on “sociological and psychological factors.” (Banks, O’Brien, p. 95) The empirical and the pragmatic and sociological and the psychological however, apparently have nothing to do, fundamentally with reason, only skepticism, which simply means chronic uncertainty.

To be fair to American Realism, at least it can be argued that empiricism could suggest probable guesses based on consistently observed things; at least it makes some kind of appeal to a notion of a more likely truth versus a less likely one, and/or maybe there is a truth, however not graspable by people.

At least then there is a sort of reaching for a semblance of logic. The theory of “critical legal studies” however, claims to “destroy the notion that there is one single ‘truth,’ and that by disclosing the all pervasive power structures and hierarchies in the law and legal system, a multitude of other possibilities will be revealed, all equally valid.” (Principle, p. 2)

If analyzed we see that the claim that there is no single truth is a contradiction in terms. Taken at its word, we must somehow accept it as singularly true that there is no single truth (that A is B, that a thing is not itself) when we are told that there is no single truth.

That is like saying I am not a cat but I am a cat.

That being said, I do concede that this theory of “critical legal studies” has at least one logical concern (although I guess adherents would not describe it as logical in my sense of the term)-  “all pervasive power structures and hierarchies in the law and legal system” should always be scrutinized because application to logic is not automatic and guaranteed, even when the application is referred to as logical, and it has resulted at times in racist, classist, elitist actions. Similarly of feminist legal studies: chauvinism and misogyny can be problems within the legal system and elsewhere which is irrational and immoral which is why I would argue that an honest and consistent application to basic natural law theory would treat all fairly.

Although I have touched on the moral element of natural law briefly already, I believe it deserves more attention. It is one thing to say that it logically follows that morality must dictate law, but it would sell natural law theory short not to also mention in a bit more detail the nature of just how, in my interpretation, consistent and logical natural law theory would inject morality into law, and contrast that with how others might interpret the role of morality in natural law.

Nowhere in the texts I considered upon doing my research does it explicitly say that Natural law theory necessarily posits that all moral principles must be codified into law. In contrast, if we consider how natural law is the basis for “individual natural rights” such as “life, liberty and the pursuit of happiness” (Banks, O’Brien, p. 83) it follows that it is a right thing to do, i.e., a  moral action that the law be made to permit and prohibit certain things- specifically to permit freedoms, and to prohibit violations of freedom.

That does not mean however, that an action which might be immoral, say prostitution, should therefore be illegal.

The moral claim is that the law should protect freedom, i.e., self determination, and thus prohibit coercion; only immoral acts which are coercive in nature require legal prohibition.

Adherents to natural law, throughout history, unfortunately, have not always understood this, despite it being the very meaning of their premise.

For example, in my view, it is a totally misguided idea of morality, based on a totally erroneous reasoning, how, “the Court appealed to natural law principles in asserting that blacks were not citizens entitled to constitutional rights in Dred Scott v Sanford (1857) [and] [i]n Bradwell v Illinois (1873), [when] the Court ruled that women could not practice law because it was ‘in the nature of things’ for them to remain relegated to the ‘domestic sphere as that which properly belongs to the domain and functions of womanhood’ [and further, how] [m]ore recently Justice Clarence Thomas cited natural law and the Deceleration of Independence in criticizing the rationale in Brown v. Board of Education (1954), the landmark case ending racial discrimination in public schools.” (Banks, O’Brien, p. 84)

Those are completely irrational moral claims that do not represent a proper application to natural law, but rather, forms of statism, altruism, collectivism, racism, chauvinism, and misogyny.

Although it is my opinion that classical naturalism, in its most general and popular sense – being explicitly based on the application of reason and morality- is the superior theory of jurisprudence, that is not to say the theory is perfect.

For example, many of the proponents of classical naturalism ascribe, with certainty, that its ultimate basis is in a God. As Banks and O’Brien write, “Natural Law is thought of in divine terms as God’s law.” (p. 81) Now, it very well may be, as I personally speculate, that a God does exist and that all truth is God’s creation, however, if so, it’s yet to be proven. Logic only tells us that there is no proof that a God does not exist but that nevertheless, one could. But a “could” does not justify a “does” and thus those classical naturalists who assert with certainty that a God does exist and that natural law is to be thought of as God’s law are, in my view, being hasty.

Briefly, on other theories of jurisprudence I have deemed inferior compared to classical naturalism, they at least have fair points regarding aspects of law they are critiquing- for example, American Realism, although “skeptical” at least leads us to question that which is asserted as moral-legal fact, and at least Critical Legal Studies dares to question the sometimes corrupting roles of power and higher status within the legal system- where economic status or race or sexual orientation, et cetera, is sometimes a factor when they should never be, and at least feminist legal studies dares to call out where the judiciary has unfairly treated women.

If classical naturalism could be revised and stripped of its contradictions, and if the mistaken applications of it could be made clear, I believe we would have a theory of jurisprudence which would be as perfect and logical as Aristotle’s laws of identity, and non-contradiction.

REFERENCES
Banks, C.P, O’Brian. D.M. (2016) The Judicial Process [Adobe Digital Editions] Retrieved from https://play.google.com/books
Principe, M. (2016) The American Judicial System POL226 Outline #2 Classical & Contemporary Theories of Jurisprudence. William Paterson University