Third Short Quiz

[johnkarls]

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Third Short Quiz


NB: The text of the U.S. Supreme Court and Fifth Circuit opinions in Texas et al. vs. United States referenced in Part I of this quiz are posted in the “Reference Materials” section of http://www.ReadingLiberally-SaltLake.org for our 5/16/2018 meeting.


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Part I – Questions Relating To “Ruling by Executive Order and the Senate’s Filibuster Rule Which, Until the Last Decade Or So, Was Used SOLELY To Perpetuate Segregation”

1. Did the U.S. Constitution intend the U.S. Senate to be a democratically-elected body, or did it take until 1913 (long after the Civil War even) for the 17th Amendment to the Constitution to provide for the popular election of Senators?

2. Did the U.S. Senate have an “unlimited debate” (aka “filibuster”) rule that permitted a group of opponents of a bill to talk “about anything under the sun” (literally, often reading names from telephone books) until the Senate either gave up trying to pass that particular bill or mustered a 2/3 vote to limit debate?

3. Is the Senate’s “filibuster rule” embedded in the U.S. Constitution or is it merely a procedural rule that could be changed by a simple majority vote?

4. Historically, was the Senate’s “filibuster rule” ever used prior to 1987 for any purpose other than to block civil rights legislation?

5. Who was Robert Bork?

6. Was filibustering Robert Bork’s nomination to the U.S. Supreme Court in 1987 the first time the Senate’s “filibuster rule” was ever used except to block civil rights legislation?

7. BTW, did our lazy Senators in 1975 change the “filibuster rule” to reduce the hurdle for blocking legislation to only 60% from 2/3, while even eliminating the requirement that a group of Senators had to “read from telephone books” vs. simply “turning thumbs down” and leaving for cocktails?

8. Has the Senate, by majority vote, eliminated its “filibuster rule” for such things as budget bills and confirmation of Judicial and Executive Department appointments?

9. In 2008, did Presidential Candidate Barack Obama campaign on the promise that he would tackle immigration reform “if not within the first 100 days” at least during his first year in office?

10. Did President Obama violate his campaign pledge even though the Democrat Party had a “filibuster-proof” 60-vote majority in 2009 until Scott Brown assumed Ted Kennedy’s old seat 2/4/2010?

11. Did President Obama claim repeatedly between 2009 and 6/5/2012 that he did NOT have authority to issue an Executive Order creating the Deferred Action for Childhood Arrivals (“DACA”) Program protecting illegal aliens who had come to the U.S. as children?

12. On 6/5/2012, did President Obama sign such an Executive Order anyway?

13. In addition, did President Obama on 11/20/2014 primetime television announce that Jeh Johnson, his Homeland Security Secretary, would direct U.S. Immigration and Customs Enforcement (“ICE”) to expand DACA and to create a program similar to DACA for illegal immigrants who were the parents of a U.S. citizen or lawful permanent resident (aka “DAPA”)?

14. Did the State of Texas, joined by 25 other states, immediately sue the U.S. Government claiming that the 2014 expansion of DACA and creation of DAPA were unconstitutional?

15. According to the U.S. Fifth Circuit Court of Appeals, did the U.S. District Court properly grant under Rule 65 of the U.S. Federal Rules of Civil Procedure a Preliminary Injunction against the U.S. Government’s expansion of DACA and creation of DAPA because the Plaintiffs had shown a “substantial likelihood of success” with regard to its claim that the Obama Administration had violated the legal requirement under the Administrative Procedure Act to provide a “notice and comment period”?

16. According to the U.S. Fifth Circuit Court of Appeals, did the U.S. District Court base its Preliminary Injunction on a “substantial likelihood of success” with regard to the Plaintiffs’ claims that the expansion of DACA and creation of DAPA were unconstitutional?

17. Accordingly, did the either the U.S. District Court or the U.S. Fifth Circuit Court of Appeals take a position either way with respect to the issue of the constitutionality of the expansion of DACA and creation of DAPA?

18. Was the 2-1 decision of the U.S. Circuit Court of Appeals upholding the Preliminary Injunction on the basis of a “substantial likelihood of success” on the issue of a failure to provide a “notice and comment period” effectively affirmed by a 4-4 vote by the U.S. Supreme Court on 6/23/2016 during the last year of President Obama’s second term?

19. Since the issue before the Fifth Circuit and Supreme Court had been the validity of a Preliminary Injunction pending trial, would the lawsuit have then gone back to the U.S. District Court for a trial on the merits, including the Constitutionality of the expansion of DACA and the creation of DAPA?

20. However, did the Trump Administration then revoke DAPA entirely?

21. And did the Trump Administration then render Texas v. United States moot by revoking DACA entirely based on the claim that President Obama had been correct before he created DACA that only Congress could do so under the U.S. Constitution?

22. Did President Trump give Congress 6 months until 3/5/2018 to enact a replacement for DACA?

23. Did negotiations between the Trump Administration and Congress regarding a so-called “DACA fix” revolve around President Trump’s position that a “DACA fix” must also include funding for his “wall” on the Mexican border, an end to the so-called “visa lottery program” and an end to so-called “chain migration”?

24. Had Democrats in recent years voted in favor of funding for a “border wall,” an end to the “visa lottery program” and an end to “chain migration” -- all three of which they now opposed?

25. As a “sweetener” did President Trump offer to double the size of DACA to include everyone who would have qualified, rather than being limited to illegal immigrants who had actually applied for DACA status?

26. Did the negotiations between the Trump Administration and Congress collapse because a U.S. District Court Judge in San Francisco issued a nationwide Preliminary Injunction ordering the Trump Administration to extend DACA until he had time to hear the case and make a decision -- demonstrating yet again that Congress does NOT act unless faced with a deadline?

27. Meanwhile, have two additional U.S. District Courts (and counting) issued Preliminary Injunctions extending DACA?

28. Accordingly, does it appear likely that once again the nation (and the illegal immigrants brought to the U.S. as minors) must await a U.S. Supreme Court opinion next year on the constitutionality of President Obama’s Executive Order creating DACA, which he claimed on many occasions that he did NOT have the constitutional authority to issue?

29. What do you think would be the reaction of “The Quartet” who are the subject of our focus book (George Washington, James Madison, Alexander Hamilton and John Jay) and who were the “moving forces” behind the shape the U.S. Constitution took in the 1787 Constitutional Convention, to return to earth today and witness the havoc that has been created by --

(A) A U.S. Senate that they designed to be anti-democratic -- not even popularly elected until the adoption of the 17th Amendment in 1913 when, BTW, women still did not have the right to vote?

(B) A U.S. Senate that adopted a procedural rule NOT required by the Constitution (the so-called “filibuster rule” requiring a 2/3 vote to do anything until 1975 when it was reduced to 60%) as an excuse until 1987 primarily, if not solely, for blocking civil rights legislation?

(C) A U.S. Senate that since 1987 has used its procedural “filibuster rule” (which it could junk by a simple majority vote) as an excuse for DOING VIRTUALLY NOTHING about anything???!!!

(D) A Presidency which has largely been forced BY THE PURPOSEFUL INACTION OF THE U.S. SENATE to rule by Executive Order?

(E) U.S. District Court Judges to rule the country with their decrees about whether particular Presidential Executive Orders are Constitutional?

30. Do you think one of our Six-Degrees-Of-Separation E-mail Campaigns to junk the U.S. Senate’s anti-democratic “filibuster rule” requiring 60 votes to do virtually anything, should be employed?


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Part II – Questions Relating To “FISA and Authoritarian Rule by Our Intelligence Services”

1. In rejecting the recommendation of the Founding Dean of Harvard’s Kennedy School of Government regarding how to cope with Osama bin Laden’s now-irrevocable fatwā to nuke 10 million Americans despite the exhaustive supportive efforts of former U.S. Senator Sam Nunn (D-GA and Senate Armed Services Committee Chairman 1987-1995), U.S. Senator Richard Lugar (R-IN and Senate Foreign Relations Committee Chairman 2003-2007) and Messrs. Thomas Kean and Lee Hamilton (Chair and Co-Chair of The 9/11 Commission) -- and despite the efforts of Tim Russert to publicize the efforts of Nunn/Lugar/Kean/Hamilton on Meet The Press and Tom Brokaw’s participation in a Docu-Drama produced by Nunn/Lugar/Kean/Hamilton -- did Congress instead opt for Sec. 702 of the Foreign Intelligence Surveillance Act (FISA) pursuant to which the National Security Agency (aka NSA aka “No Such Agency”) was permitted to collect all electronic communications (phone calls, e-mail, text messages, etc.) and have immediate access to the “meta data” (who communicated with whom, when and where) concerning those communications?

2. Was Sec. 702 intended (except for one-year emergencies declared by the Attorney General or Director of National Intelligence) to limit NSA’s ability to access THE CONTENT of such communications to solely those communications which were identified by searching the “meta data” to confirm the participation by known foreign terrorists AND ONLY AFTER a Warrant was obtained from a FISA judge?

3. If the foreign terrorists, THE CONTENT of whose communications was the subject of a FISA Warrant, communicated with U.S. citizens, did the NSA have access to THE CONTENT of those communications pursuant to the FISA Warrant?

4. Did Sec. 702 provide that the IDENTITY of U.S. citizens, THE CONTENT of whose communications was accessed by the NSA as described in Q-3, must be MASKED?

5. Did Top Officials of the Obama Administration UNMASK (and then obtain THE CONTENT of communications of) POLITICAL OPPONENTS?

6. Had the Obama Administration’s POLITICAL OPPONENTS been surveilled as the result of a FISA Warrant obtained on the basis of the false information illegally purchased by the Clinton Campaign and the DNC from the Kremlin and illegally NOT reported -- using the Perkins Coie law firm as their agent to conduct and hide these illegal activities?

7. Was this obviously POLITICAL WARFARE since, for example, more than 100 UNMASKINGS were obtained by Samantha Power who, as Obama’s Ambassador to the United Nations, had no need to know about the communications vis-à-vis which she was obtaining UNMASKING?

8. Was FISA Sec. 702 due to expire on 12/31/2017 unless it was extended by new legislation?

9. For our 5/10/2017 meeting, did we focus on “Authoritarian Rule by Our Intelligence Services” because of their behavior in ILLEGALLY leaking UNMASKED communications to the media concerning governmental officials that they didn’t like?

10. For our 5/10/2017 meeting, did we all re-read (probably for the first time since High School for most of us) George Orwell’s “1984”?

11. At our 5/10/2017 meeting, was there universal opposition to the possibility/probability that our Intelligence Services will use their power to zap any of our democratically-elected officials with whom they disagree?

12. NONETHELESS, at our 5/10/2017 meeting, was there a diversity of opinion on (1) whether we are just “around the corner” from Authoritarian Rule by Our Intelligence Services à la George Orwell’s 1984, or (2) whether we are merely (!!!) in a permanent modus vivendi pursuant to which Our Intelligence Services dictate U.S. policy by zapping whichever democratically-elected officials displease them WITHOUT the oppression of Orwell’s 1984?

13. And WAS THERE UNIVERSAL AGREEMENT that (as posited in both the Suggested Discussion Outline and the Suggested Answers to the Fourth Short Quiz posted on http://www.ReadingLiberally-SaltLake.org for the 5/10/2017 meeting) there is NO SOLUTION to the problem? Unless, of course, we simply disband entirely our Intelligence Services BECAUSE THE INTELLIGENCE SERVICES HAVE ALREADY PROVEN TO BE SO “LAWLESS” THAT THERE IS REALLY NOTHING THAT CAN BE DONE IN TERMS OF ADDITIONAL LAWS BECAUSE THEY WILL IGNORE THOSE AS WELL !!!???

14. In other words, isn’t FISA Sec. 702 a Faustian Bargain pursuant to which we sell our soul (democracy and freedom from Orwellian-Style Authoritarian Rule) in exchange for protection (which is NOT absolute) from having 10 million Americans nuked???

15. Did The USA Liberty Act which was reported to the House Floor on 11/8/2017 represent a conscientious effort to increase in the future the criminal penalties for the type of illegal behavior that has occurred in the past under FISA Sec. 702???

16. HOWEVER, on the one hand, did Attorney General Sessions testify before the House Judiciary Committee on 11/14/2017 that the U.S. Justice Department (which includes the F.B.I.) OPPOSED the reforms contained in The USA Liberty Act (!!!)???

17. AND ON THE OTHER HAND, would the reforms of The USA Liberty Act have been sufficient to prevent Authoritarian Rule by our Intelligence Services à la Orwell’s “1984”???

18. AND EVEN IF the reforms would have been sufficient IF ENFORCED, why should America believe in Washington DC’s “Kabuki Theater” in which NOBODY is ever HELD ACCOUNTABLE for violating the law???

19. AFTER ALL, do there appear to be ANY INVESTIGATIONS of such obvious criminal behavior imperiling our national security as (A) the Clinton Foundation in general and Uranium One in particular, (B) Hillary putting top-secret documents on a personal computer server that was less secure than g-mail and that was hacked by at least 5 foreign governments, (C) Hillary and the DNC buying false “opposition research” from the Kremlin and distributing it to the mainstream media while masking their deeds by using the Perkins Coie law firm as their agent to accomplish these illegal activities, and (D) rigging the Democratic Primaries against Bernie Sanders who was the only candidate in 2016, other than Donald Trump, standing up for American workers (which should comprise a “slam dunk” case of criminally defrauding all of Bernie Sanders’ zillions of small campaign contributors)?

20. While we are treated to constant demands to return to the Cold War by investigating so-called Russian “collusion” which is NOT a crime?

21. Do you think that the U.S. Department of Justice and its FBI are capable of INVESTIGATING THEMSELVES since their failure to investigate properly the items listed in Q-19 appear to involve CRIMINAL BEHAVIOR AT THE TOP LEVEL OF THE DOJ & FBI???

22. Accordingly, do you think one of our Six-Degrees-Of-Separation E-mail Campaigns should be employed to demand the appointment of a Special Prosecutor to investigate the items listed in Q-19???

23. BTW, was FISA Sec. 702 extended 5.75 years to 9/30/2023 without even the meager and non-credible protections of The USA Liberty Act???

[johnkarls]

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An important issue relating to “FISA and Authoritarian Rule by Our Intelligence Services” arose after Friday April 27 which is when our Third Short Quiz “went to press” as part of our pre-dawn Sat Apr 28 weekly e-mail to our approx. 150 members around the nation (and, indeed, around the world).

And the issue goes to the core of what we are -- We have always prided ourselves in being a non-partisan public-policy study group that takes effective action in the best interests of the U.S.

[BTW, taking effective action is what sets us apart from unimportant self-edification groups of policy wonks.]

And the fact that so many attorneys participate in our discussions gives the group its character.

Just like a court evaluating the testimony of “experts,” we NEVER treat our focus books as GOSPEL that must be placed on an ALTAR and WORSHIPPED.

Instead, just like a court evaluating the testimony of “experts,” we ALWAYS treat our focus books as GRADED EXERCISES.

The reason for saying all this???

The important issue that arose after Friday April 27 --

(A) places in stark contrast the difference between politics and public policy; and

(B) questions whether the much-publicized recent statements of Harvard Law School Professor Emeritus Alan Dershowitz and President Trump are sound public policy.


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Supplemental Questions for Part II: “FISA and Authoritarian Rule by Our Intelligence Services”

24. Did the House Intelligence Committee release on Friday April 27 its Final 253-Page “Report on Active Russian Measures”?

25. Did the House Intelligence Committee Report include the following among its many factual findings --

A. “When asked directly, none of the interviewed witnesses provided evidence of collusion, coordination, or conspiracy between the Trump campaign and the Russian government.”

B. “The Committee found no evidence that President Trump’s pre-campaign business dealings formed the basis for collusion during the campaign.”

C. “Possible Russian efforts to set up a ‘back channel’ with Trump associates after the election suggest the absence of collusion during the campaign, since the communication associated with collusion would have rendered such a ‘back channel’ unnecessary.”

26. Is it true that the Mainstream Media had long-since turned its attention from alleged “Russian collusion” (which is NOT a crime) to possible “obstruction of justice” based on their assumption that if Bob Mueller’s Independent Counsel Investigation had been able to turn up any evidence of “Russian collusion” in the 11 months since Mueller’s 5/17/2017 appointment (which had the benefit of the FBI investigation opened nearly a year prior to that), the news that such evidence actually exists would long since have leaked to the press?

27. Has the Mainstream Media now appeared to despair that there is even any evidence of possible “obstruction of justice” because the infamous “Comey memos” released by the Associated Press two weeks ago indicate (or at least strongly imply) that Comey did NOT believe he or the FBI had been obstructed?

28. So does the Mainstream Media now appear to be pinning its hopes on the possibility that Mueller will be able to claim that President Trump is lying to the FBI in a possible meeting between the two that has yet to be agreed?

29. Has famed Harvard Law School Professor Emeritus Alan Dershowitz been fond of saying in recent interviews on various cable-news channels that Special Counsels SPECIALIZE in indicting victims for ALLEGED PERJURY -- “FOR TELLING THE TRUTH”???

30. So didn’t President Trump, during a campaign rally last evening (Sat Apr 28) in Detroit-suburb, Washington MI (scheduled purposely to conflict with the Annual White House Correspondents’ Dinner) say that in the wake of the House Intelligence Report, America should turn the page on all of these “witch hunts” and, instead “move forward”???

31. Isn’t this, in effect, what Hillary acolyte Alan Dershowitz has been advocating when he rails (including in his recent book, no less) against “criminalizing political differences” since, as noted in Q&A-19, he obviously foresees that the Mueller probe will fail to lay a glove on President Trump, whereupon the “lime light” will turn to all of the obvious criminal behavior perpetrated by Hillary Clinton described in Q&A-19???

32. And isn’t this “where the rubber LEAVES the road” -- where the “rubber” is politics and “the road” is sound public policy???

33. In other words, doesn’t SOUND PUBLIC POLICY require the prosecution of criminal behavior by Hillary Clinton and the top echelons of our Intelligence Services (including the top echelons of the DOJ/FBI)???

34. In yet other words, how can America escape Orwell’s 1984-style oppression if our Intelligence Services are free to “zap” any elected official with whom they disagree???

35. After all, didn’t the U.S. Government decide to cope with Osama bin Laden’s famous fatwā to nuke 10 million Americans (which can NOT be revoked now that Osama is dead and which is the solemn religious duty of every follower of Osama, including every member of Al Qaeda, ISIS (formerly Al Qaeda in Iraq), etc., etc.) by TURNING ITS BACK ON the recommendation of the Founding Dean of Harvard’s Kennedy School of Government, former U.S. Senator Sam Nunn (D-GA and Senate Armed Services Chair 1987-1995), former U.S. Senator Richard Lugar (R-IN and Senate Foreign Relations Chair 2003-2007), and Messrs. Thomas Kean and Lee Hamilton (Chair and Co-Chair of The 9/11Commission)???

36. And didn’t the U.S. Government decide instead to cope with Osama’s famous fatwā to nuke 10 million Americans that is still the solemn religious duty of every member of Al Qaeda, ISIS, etc., by giving our Intelligence Services the ability under FISA to access the content of virtually all communications by virtually everyone on earth???

37. So if it is so easy for the top echelon of our Intelligence Services to “weaponize” FISA in order to “zap” any elected official with whom they disagree, where does President Trump “get off” with “letting bygones be bygones”???

38. After all, isn’t our very democracy at stake with the prospect of Orwell’s “1984” just “around the corner”???

39. So yes, President Trump has the Constitutional power to PARDON Hillary Clinton and the top echelon of our Intelligence Services for their many obvious crimes, but would that be good public policy???

40. And if President Trump wants to engage in BAD PUBLIC POLICY, shouldn’t he be forced to PARDON HILLARY AND HER CRIMINAL CO-CONSPIRATORS, rather than merely FAIL TO PROSECUTE???