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Wednesday, March 22, 2017

What happened to Judge Napolitano?

Fox's top legal expert is in hot water for saying what must never be said.

A ccording to news reports, Fox News commentator Judge Andrew Napolitano has been suspended from Fox News for reporting that GCHQ (the UK's equivalent of the NSA) could have spied on American citizens, possibly including now President Donald Trump.

It is very strange. I thought everybody knew that this was how it worked. The Five Eyes program and intelligence sharing have been documented in numerous books and articles on the subject.

The Atlantic, a centrist opinion outlet, says this about the Five Eyes program [warning: may hang your browser]:

Say you're the NSA. By law, there are certain sorts of spying you're not lawfully allowed to do on Americans. (And agency rules constraining you too.) But wait. Allied countries have different laws and surveillance rules. If there are times when America's spy agency has an easier time spying on Brits, and times when Britain's spying agency has an easier time spying on Americans, it's easy to see where the incentives lead. Put bluntly, intelligence agencies have an incentive to make themselves complicit in foreign governments spying on their own citizens.

Both the NSA and GCHQ vigorously deny doing this.

GCHQ involvement is still unproven, but it sounds plausible because it's characteristic of how the FBI and other law enforcement agencies deal with illegally obtained information. In our system, you need a chain of evidence. To get a conviction, the evidence must be what they call “untainted,” which means each step is legally obtained according to complicated procedural laws. If not, it can't be presented; if a jury hears it, the judge throws out the case.

The catch is that not presenting it in court doesn't mean they can't use it. It's like when you illicitly know the answer on a physics test: if all you do is write down the answer, you still get an F; but knowing the answer allows you to work backwards to get a plausible proof that leads you to the correct answer.

In the old days, cops had to rely on a hunch or use their extrasensory perception. Now they type your name and the crime they're investigating into a computer. The source of the information and means by which it was obtained are kept tightly secret, but knowing who, what, when and where makes it infinitely easier to put the pieces together and make a legal case. Apparently, revealing this to the public is the worst possible sin.

Napolitano is by far the American news media's most trustworthy expert on constitutional law. His sterling reputation comes from his willingness to fearlessly and single-mindedly defend what is and is not constitutional, and to explain it in terms the average person can understand.

The thinking among US conservatives is that Fox News, which was created by Rupert Murdoch, and is under constant attack by the British media, may have caved because of intense pressure or threats in the UK. Murdoch's UK News of the World tabloid phone hacking scandal led to investigations of the embattled Murdoch, now Fox's CEO, by the British government and the US FBI. Anything with Murdoch's name attached to it is hated by the British left-wing.

By contrast the American Democrats and never-Trumpers continue to keep the focus on Trump and prop up the myth that Wikileaks is a “proxy” for Russian intelligence. Although some still cling to the idea that the Russians influenced or “hacked” the election, many now appear to be wishing they'd never brought it up.

These are hopelessly incompatible world views. Whatever is really going on in Washington, we won't learn about it from the Cannibal News Network (CNN). If the players are powerful enough to silence Fox News, it means sooner or later there's going to be a major housecleaning for somebody.

Created mar 22, 2017; last edited mar 22 2017 6:36 am

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