Welcome to the Mccarthy report. I guess where I reach Lara, discuss with Andy Mccarthy, the latest legal and national security issues this week. What power does the federal government have to quarantine people and the latest Pfizer abuse revelations you listening to a national pod cast blessing the pod cast on national, you D Come called. Have you better be easier for you and better for us to be made as part of your feet at ain't, a stream and serves as out there from Spotify Itunes? Please give this park ass, an Anti Mccarthy. The glowing indeed gushing five star reviews they deserve on Itunes and now without further Ado. I welcome to this very podcast through the miracle of the com. Rack, steel, tap, none other than any Mccarthy.

Red. Shall are you up your stay and safe? I am at some time drawn together. I guess it's been. almost twenty one days, the very little time after time says there were no little outpost year outside New York City, the high gas or not doing well, I think we have a little bit more structure this week, even though the they have really clamped down in New Jersey on the governor stay at home order. The quarantines become much more aggressive on people in the last several days, but for the beginning, of the restrictions they happen coincide with my son, who was a senior in high school with their rum annual too weak brow which we were supposed to be spending it spring. Training in Florida right course couldn't that didn't happen, but it was just

Pizarro for a couple of weeks because it just felt like nobody had any structure. I I usually war columns, didn't really affect my day to day all that much, but you don't from from my wife for my son. It was kind of like you know. A lot of sense open time and not not their usual setting. today and in China have to function that way, but this week, school at least started again as it as a teller commute endeavour Don't you see something like the days have a little bit more structure, even though it's all you not strange that we're all here trying to work and make says it Omar headphones, let a full day as a full day of classic

the video yeah. So it's, I think what they are trying to encourage them to do is make it they abbreviate the school day a bit so that with the idea that they should get their work done by the late afternoon. Preserving courage in you'd have families to interact with each other at night and so that they were they want to do is, I think, about the school day. Kind are wrapped by late afternoon and what people so to do their thing in the evening instead of the usual, you know school from extra. Why and then baseball? actors and then dinner and all markets it. So it's a different kind of a structure, but at least it's a structure which is better than what we ve had the last couple of weeks. Allow must be tough on him. Sports aspect of it. Although I know it there's a video, the other

There are some some major player forget which one had had a miniature batting cage set up in his living rooms. Maybe that's what you gotta get a need, Actually, my arm is almost falling off cuz. He was going to catch this year so every day he drags me down to the basement, and I throw him a couple of hundred bouncing balls in the May I just say that I hope getting right, we'll have to send them the tapes. That's right so really die then cover MIDI topics here, someplace come up the last day or so is this security detail that Anthony Thatch he promptly now has in that reporters? Listen. The briefing yesterday were, according Thursday, were asked

him about you, unfortunately, house from personal experience, with having scurry detail back when, when you're prosecuting the blank cheque case of what he would make it an oral question. What well, which I really work, They wouldn't ask him about it. You know, you know what you understand why they do, because if you can't say that it's not at all newsworthy, but the thing is you know when you are subject to that kind of thing, you're going to be instructed by the security officials who are running your safeguarding detail that you should not even acknowledged that you have it much less go into the details of it so right found she is a smart guy and no one's gonna have to draw a picture. Firm. He's gonna understand that.

And therefore, if they ask him this question, which is now getting more attention, so becomes more likely. He gets the question again he's not going to answer it. Nobody's going. No one in the government is going even acknowledged that it's going on, and that would end inevitably happening. Is that turns into more of a new story, which means all you do was told the crazies out that their having an effect and because Fouche he's a good guy suspect that you don't number one just go and on my own personal experience. When you are the subject of this, you don't have time to think about all that crap, because your days are actually filled up with with the work and its it's the kind of work that the you really have to focus on and and tune everything else out. So the only way this is gonna get to him at all is it'll, be upsetting to his loved ones,

people in his family who will be, you know, jittery and have anxiety about it and he will feel guilty even though always doing its job, because he's he will feel like he's, causing this upset for people who care about himself? the best thing the media could really do, and I really hope they do, because this is the better way to honour the great service and selfless service that he's giving to the country. Right now is just let him alone the dump bring this up. Just let him do his job. It right is, unfortunately, anymore comes with the territory of Europe being a high profile official, and you just have let him deal with it and, let's not make it worse form than it already is. That's my hair sense

so. It's Diane said this policy question has real legal implications and it was burning hot last weekend when trumpet briefly flirting with an enforceable ass. He called it quarantine of New York, New Jersey, parts of Connecticut, backed off in there. Just CDC guides gets travel from from those,

places. But a raised the question of what powers the federal government have to do this, and then you have also had states cut kind of erecting, not not quite borders but the beginning to be and hospitable. People kept coming from elsewhere, most famous example, the governor of Rhode Island, has had the National Guard Guy's going house to house in in Rhode Island when there's a New York license plate and a car outside just telling people that they should self quarantine, but still makes for an extraordinary picture, and actually one of our colleagues who ordinary lives, New York, city and his family has place up their left a couple weeks ago for four Rhode Island and still gets like hostile, glares and rude gestures. When, when people at the New York waves are not Rhode, island are or are not loving, New Yorker people from New York right now and add a couple of things of of that nature around the country,

first of all, the federal government. If there is a trumpet said, I'm doing this and affordable quarantine would that had been legal? I don't, I don't think so, but it's a real grey area originally. First of all, the Supreme Court has held for decades that american citizens have an almost unlimited right to travel from state to state and, interestingly, that is not there. The word travel doesn't even appear the constitution and there's nothing in the bill of rights or any other poorly constitution. That gives you a right to travel. But it was in the articles of confederation and the courts have deduced over the years.

that it was a fundamental ingredient of the creation of the union and therefore a right. We all have its fundamental its constitutional, an That means with which you know no constitutional right is absolute, because rights don't live in a vacuum. Everything every right. We have has to coexist with other rights which, sometimes collide with it and also with the legitimate powers of the state, because if the state collapses Lincoln talked about this, as sir you'll, remember probably better than I do. Reggie talked about after he imposed unilaterally a suspension of habeas Corpus first in Maryland, during known

the war and that then elsewhere Questionnaire was Anti Union terrorism going on in states that were at least ostensible union states that they were very concerned would go over to the other side like Maryland in Congo, back in those days, was not so easy to call intercession, so Lincoln imposed Habeas Corpus at war suspended it and Roger TINY, the chief justice of the Supreme Court held that that were ruled, that that was Unconstitutional, because the habeas Corpus clause in the car institution is in article one, which is the article that defines congressional power? Now it's it's. A big was because, even though its located in article one, the clause just describes when Habeas Corpus can be suspended, it doesn't say anything about who can do

And back in those days, because Congress was not so easy to call co session. If, if Lincoln, had waited for Congress come intercession, blot a bad stuff could have happened in the meantime, so he he imposed it and what people forget about the story, even though they you know, but the way this always gets reported is talking about how we have such a you. Don't great respect for our fundamental costed

national rights that, even in wartime, the court said that Lincoln couldn't do that. The fact of the matter is number one the year after he did at Congress when it finally came at the session, endorsed it and, secondly, the trajectory. I think we talk about this before of what happens to us in times of crisis, and that's why this is so relevant to what we're talking about now is that the courts and the Congress tend to give the executive branch of the federal government a very wide berth, while a crisis is ongoing and then what tends to happen is after the crisis has subsided. You have all this legislation, and especially all this litigation that may once the crisis has subsided did say. No, no, the executive branch can't do that. It really does it help the people whose rights get violated during the crisis, but it does create norms for the next round.

is that tend to get honoured and that's the way things tend to you not progressing, get better over time That's a long, winded way of saying what kind of in a grey area when we talk about the government's ability to quarantine, because as we in a kind of a situation. That's never really happened before this is all this is a locked down at being caused by this infectious disease. The courts have said that the ability to travel interstate is fundamental, we, but at the same time that doesn't mean I can't be limited means that the government has to have a legitimate reason to limited, which clearly, the imperative to prevent the spread of infectious diseases is obviously a legitimate interests,

but the thing that has to be litigated in and will remain vague until I get settled, is how far can they go to limit it? Because, when you have a fundamental constitutional right, involve the level of scrutiny that the Supreme Court gives it and instructs the federal courts you give. It is well known as strict scrutiny. which means the government has to show that it has a powerful legitimate interests and that had measure it's taken and here's the thing that the litigation revolves around. Is it the least restrictive alternative? Is it the least burdensome thing they could have done and achieve the governments legitimate purpose, while at the same time imposing a minimal burden on whatever the fuck, mental writers. So the question is

could it could the federal government have imposed is quarantine. I I think that gets to the question of whether the federal government has the right to restrict people's intra state movement, which I dont think it does. Traditionally the states are the ones who have to manage interest. eight affairs, the government, the government's powers, the fair, we'll governments powers involve travelling interstate, so I think most what the president could have done is imposed actions on people's ability to travel from state to state, but I don't think he could ever like quarantine them in their homes than that get down to what the state power is allowed to do so. First, Have this federalism issue of a federal state, and then you have, of course, that the bottom line question, which is: how far can we go to regulate? And I guess the third consideration

that may be the most important, even though its legally irrelevant the way that these things ultimately get played out is, this is much more of a practical political problem. Then it is a legal problem because you can set up all these restrictions, but is as you and I as worse, we were discussing snow and as for exam everyone in New Jersey, Nose and Rhode, island nose and and in every state knows specially a huge state, populous wise. What would population wise like New York is that the state and local governments, and for that matter, the federal government, depending on how aggressive they want to be, do not have the resources that you could practically

police all of these restrictions that they want to put in here in New Jersey, we ve had a guy who apparently decided to throw a party for forty seven people with a dj apartment, at least five hundred if these square feet, so they sent the police to break up the party because it violated the social distancing and then stay rules which Murphy now Governor Murphy now insists it used to be groups of tat. or more were a problem now, its groups of one or more. You don't use being tell that's how strict there If they see you there reserving the right to intervene if they see a husband and wife walking down the block and they're not keeping six feet apart, I mean that's hell, that's how adhesive they want to be at this point, which is fine, I supposed to say, but they don't pay, couldn't conceivably enforce that

In fact they ve charged the guy who ran the party at the apartment- I guess the apartment lesser or owner, but they are there being very cage. That what they ve charge him was. So we don't even know what the unless it's been reported today, we don't even know what exactly they ve, what crime they ve accused him of. But the point is they can't in full This stuff and the police know two things that are vitally more important than the state of the law, which is number one. They don't want a process arrests right now, because that increases the possibility of the infectious disease spreading. And, of course, if you can, if you take away the three of arrest the police, don't really have a hammer to go in and even dispersed people. So what what this We should really requires more than the law is a soft touch, because you can't push people to the point.

where they will re Bell or revolt against what you're trying to do, and if you put the police in too many impossible, situations in terms of trying to enforce these deadlines. It wants. It becomes clear that they draw a line in the sand that they cannot defend them. General ability to define any line and the ability of the police Intervene effectively is lost. So that's the real problem to me. It's not so much. The legal problem is the practical. How do you and force a problem here, could they glowed with more into the Rhode Island, of course, ample yeah. So could she ate the governor, Rhode, island? You say new Yorkers are allowed or that I don't think so yeah,

I think that would clearly be unconstitutional and by the way she made it worse. I think if it was possible to make it worse, because when Governor Cuomo of New York threatened to sue Rhode, island over these restrictions, the way that the Governor Raimondo of Rhode Island decided to cure it as it were, is too Ok, we're not just in it. When I get a single out New York, it's anyone who is not from Rhode Island. Well, you know what the constitution says, but were what the Supreme Court has interpreted the constitution to say is that your right to travel in interstate commerce or in from state to state has a number of components, and one of them is that american citizens must be accepted in the states they visit.

as welcome guests, not hostile aliens, and if you wanted to relocate to a state, you would have to be given equal. We The privileges and immunities of citizenship, of a of anyone who lived there said the boy, line is the way the courts have interpreted this, we have a borderless country within not enough You know these heavy, the outside world, that visa be other countries, but as far as like, if you're from New Jersey or you're from Virginia you're from wherever you're supposed to have the same ability to travel through. If I'm from new jersey- and I want to travel through Connecticut, I'm supposed to have the same ability as somebody from Connecticut to do that. So I think the most she could do is if she had reason to believe that the person she wanted to stop might be the source of an infectious disease

she might have the authority to detain in quarantine that person if the purging of detain test and if the part just came a positive but to force a quarantine, but I'm not so sure that the courts would find that merely driving through the state with a New York driver's licence would be enough basis to stop somebody and test them because, as a practical matter, there's nothing about being from New York. that makes one individual person any more likely than with them one from Rhode Island to to have corona virus. Do there has to be something more than the mere fact that the person has a New York driver's license and, for example, does does? Does that mean that you get to detain ever body whose in the car or just the driver or just the honor me, you get you get into a really impossible thicket very quickly of these

Citizens need to be set, so how about a sightless softer example or hypothetical banning people from New York, and I guess this is an Ipod circus she's. I guess the simplistic guidance, but saying anyone from New York has to solve quarantine for fourteen days. I think that that would be a tough one to how appalled, because it seems to me that what the court would say was it's arbitrary to make a rule like that, just because somebody's from New York even though they look. They clearly have a big problem in New York, but let's face it, the vast majority of people in New York, at the moment at least don't have corona viruses which, as we know at least as far as we know

So again singling out new Yorkers verses, like the probability of somebody from Rhode Island having it. That seems that doesn't seem like go. It's very rations at least to me. I think the courts would require more of a petition. you'll eyes, showing with respect to the person that you talking about soul, you're southern. I think they might be able do. Maybe- and I think this is the most if you found him who was from New York, you would be able to question that person, because the Supreme Court says that, as long as its voluntary, you can question Anybody laws do not it's not custodial, you don't have to give them Miranda warnings and if a basis develops for you to think that that person could have been exposed to the virus, then you could insist on testing, and if the test came up positive, you know, then you could go from there, but I

I think you could just do a sweeping anybody from New York has to be, but has to self warranty in and if they won't will detain them and self warranty them and again, I think you know we're talking about hypothetically. What could they do as a practical matter? That's not enforceable. They don't have the resources they couldn't. Ably enforcing so before, we move on TAT, Pfizer abuse, quick, follow up until they were discussing. A week or two ago, which is at the quarter, are open and still functioning and that that remains true for now It remains true, wretched. I think it's more true than I suggested last week and the reason it's important to just revisit this quickly is. It goes right to what we were just talking about which is a lot of chatter out there, especially on the airwaves that these

for example, in Rhode, island, but also you know you have a situation in Florida where the Santas, the governor there seems to have really Donna one. Eighty in the last couple of days you dont Florida was kind of late to the game as far as policing and restricting people's move and now it's God. Now it's on locked down and the scientists didn't even want to let a cruise ship doc even other with, hundred Americans on it, including fifty yourself from Florida, because he didn't. He said that the They have limited resources and they want to reserve them for Floridians, and you know he wasn't. I don't think he's trying. be cruel to any one else, but he's dealing with a very young. Now I potentially really bad situation so, when you look at all these things that are going on in the states wanted to

One of the elements of chatter that were hearing it in you know some of the cable shows on some of the internet, chatter, etc. Is that this is like? Martial law has been imposed at the states have in a very almost tyrannical way imposed. restrictions without legislatures without anything, just as you know the governors and good in some cases, the mayor's or county executives, are imposing these draconian restrictions and people have to just go along. They don't have to along with we are not in martial law and the reason we're not martial law. Aside from the fact that the military is not patrolling the streets, at least not yet

but the real reason. Why not martial law? The courts are open and functioning, which means that if you have an emergency application, you can go to court and the courts will still entertain that now. Last week, when we are talking about this, we were talking about how they were wrestling with the way that the potential spread of the disease and the social distancing restrictions that have been imposed, make it very difficult to give due process to people in the criminal justice system and make it very hard for the courts to have regular proceedings and because of that, a number of things that ports often who was or routinely do, are now postponed or adjourned until these restrictions is a little bit. So it's still very hard. Most places are not convening, grand juries, at least through April that they can have jury

brows and attract jury trials that were started before the restrictions went into place, but the trial, the men, those rules are suspended, which creates a big problem, obviously for those cases going forward, but with Those problems aside, the courts are processing arrests, which means that you know the one. The things we are talking about last week that there was a fear of was that people would be arrested, basically could be arrested without charges without being brought to court and could be detained indefinitely. That's happening, people are still being processed when they get arrest is limited space for enough. It's like a twelve defended case, for example, they major the rain to people at a time rather than all twelve, but as a practical matter they're getting that those people getting presented in court and the other thing rich is. The courts are open

for emergency applications. So, even though you not gonna have civil trials right now and you can have big evidentiary hearings if people have serious complaints that their rights are be, violated in a really ruinous way that that can't be compensated with money damages at some point. They can go into court and complete about it, and I don't I don't wanna paint too rose the scenario here, because you know the courts have limited resources. more stripped down than usual now because of the crisis that were going through, but nevertheless, people do have the capacity to file claims in court and as long as that is the case that I have a sobering and I hope of beneficial effect, on the way that the state executives choose to enforce their restrictions.

Alright. So, let's died back into Pfizer after the idea. Michael Horowitz found these abuses, and the Carter page surveillance. He went back and randomly sampled a bunch of other five applications and found a shocking number of actions, inaccuracies, etc, which we make this. rich am I want to say that this is unbelievable, picks up You know the real problem here. Is it and it's all too believable for those of us who have been pointing out for in my case many years, but in the case of many people who, who discovered Pfizer in the last few years, but one of the causes and compliance is that the system promotes abuse because

a one sided system where the the target is not represented at recent represented in court proceedings and more to the point, because it's not it's simply not a judicial function. The collection of foreign intelligence is not a judicial function, so the court's don't have the institutional competence or the resources to police the FBI, which was the reason that the Pfizer court was created in the first place so get this. The testifies accord is created because of the FBI, surveillance abuses in in the Sixtys and Seventys so in nineteen, seventy eight they create the Pfizer court in two thousand one they create something, that's known as the woods procedures, because the FBI has been misleading, defies the court. King misrepresentations about its evidence in a variety of cases. So they start.

what's known as the woods procedures, which is named after a guy named woods and all it means, is that every time The FBI goes to the Pfizer court they're supposed to maintain a file that shows how they have. a fight or corroborated. Every factual assertion that they make in the application. And the bureau and the Justice Department is supposed to randomly monitor those woods filings that are kept by the Bureau for Quality assurance purposes, to make sure that there are actually doing what they're supposed to do so now flash forward to twenty twenty and what were finding is that the woods procedures are illusory. What would Horowitz his latest report? Which really stunning Hawkins's basically took two categories of data. One is the FBI, injustice, deportment own internal investing

nations or internal monitoring quality control of about forty two cases, and they found that there were problems, big problems in thirty nine of the forty two and and himself the allied the office of the inspector general and only selected? I think it was twenty nine cases in four of them. They couldn't find the f b I couldn't produce. woods file and I, as I understand it in three of those four there reason to think they never even bothered to do but woods file and

in the remaining twenty five Horowitz found problems in every single case, ranging from five, either misstatements or or problems in one case to sixty five in another. So he's you looked at a very small subset of the hundreds of applications that the FBI makes. He focused in particular on eight different, fairly busy in this counter intelligence counter terrorism. a field. Offices in the United States looks at a small substance set and basically in well over ninety percent of the cases. Fine that their presenting inaccurate, unverified, uncorroborated information to the a court. So what happens next? Is he gonna keep people? Looking what is your job dj gonna do well,

This is an intermediate report. We as it does it says its act, really. The way Horowitz reports go remember. The last couple we talked about were yes, hundreds of pages long, this one about an eight or nine page documents which easy for everybody to read its jawdropping, but its did, sir. It short and he promises in that report that their continuing to rebuke as one of the only thing they reviewed from the moment rich, is whether they kept their woods file and how much to the woods file showed that they were doing what they were supposed to do. That is that they made these assertions and they had backup for them. Now the core, she becomes by the misrepresentations or mistakes that were made. Did they have corroboration in that adjusted, make its way into the woods file, or they would did they not have corroboration at all and more

only if you put together all of the things that were told to the court that that either can't be supported or were untrue, or they so material that these Warren shouldn't have been issued in the first place. So he's still gonna answer those questions. They have a lot of work to do here. But again, I think what this shows is. You know we kind of up until this Carter, page misadventure we like to take we like to take the view that you know look the FBI's doing. That was a political case. It was kind of an outlier what the FBI does most of the time, Ms Eustace power appropriately to go after people who are facilitating either terrorism or espionage, and we kind of blithely assume that they're doing there I think in them that's all working fine and the problem is every time

you look under a rock every time. We have a reason even scratch. A little bit at the surface of this were finding problems were finding abuses were finding misrepresentations, and I think it goes to the to the powerful case, that people like ran, Paul and and MIKE Lee have been making that that flies and needs to be reformed. But I think that there, you know. what I worry about is that there were reform idea is entirely wrong with the problem with Pfizer again is Pfizer. The problem with the system is the system as design as the courts which shouldn't have any role in this. in the middle love. What an executive branch function that oughta be carefully scrutinised by the Congress, not the courts, and I think the problem you have is twofold number one. You should be fine and easily

Fleetly overhauled, so that we get rid of the court system and design something better and turns over cycles, its clear that these guys badly need oversight and then the second thing, which I was always against this for years- a sweat when I was working on national security cases, but I've become convinced that the FBI ought to have the foreign Counter Intelligence mission taken away. I think that the FBI is meant to be the nations Premier criminal investigative Agency, that skill set, is not necessarily one that carries over into foreign counter intelligence, and I think they ve they demonstrated again and again that they're not up to this job. Now you know the Justice Department FBI itself,

can you to say you know, let us reform it. Let us fix it. Let us patch it up, but I dont, I think, they're not dealing with what the main problems arm, which again are the system itself which lends itself to this kind in these kinds of abuses, because it's just a bad idea, and secondly, we have to confront the fact that You know the f b I oughta do cops and robbers, which is what it does better than any one else, but we ought to have a different agency handling domestic security with you know a different hierarchy, a different culture and very different, congressional imposed oversight and scrutiny so any forward. girl. Let's go a little bit about what happened in Pakistan with regard to the Danube. Her case. Obviously this shocking murderer right after these timber eleven

attacks, and while our peoples tension is, on elsewhere. This has been dragging on this case in Pakistan, you, ve had a fairly outrageous should say fairly now rageous decision from a court. There briefly explain what's going on This is really awful rich. I think this happened where, worse speaking, on Thursday leave. This happened yesterday and began to be reported. Last night Daniel Pearl was subjected to a brutal murder in two thousand to a few months after the nine eleven attacks it was in Pakistan. He was I too is a Wall Street Journal reporter who was trying to do story on jihadist movements in Pakistan. He was Lord to a meeting by this carrot

Omar Saeed shake, whose conviction, along with three others, has been thrown out, or at least most of his convictions, but you Lord to this pearl was Lord to this meeting by this character on DE assurance study would get to meet this info. Once all you MA am, I believe it was, but instead what they did was when he showed up. They kidnapped him, abused, for a few days, and then he was beheaded. We believe that he would we headed, and this was it turned into a propaganda, gotta be heading back in the day by Al Qaeda. believe that he was be headed by a colleague shake Mohammed was the master might, of course, of the nine eleven attacks? But hey, yes, M not only has he not been brought to trial, yet that's supposed to happen next year, twenty years after the fact, but

He has not only not been brought to trial for the nine eleven atrocities, he's never even been charged with Daniel Pearls murder and probably would never be because that confession appears to have been the result of what to come after the series of times that he was water boarded under the enhanced interrogation provisions that were in effect at the time. So I think they probably figure they can prove that case. So guy who did it more than likely is, is never going to be brought to justice and now what we have is, eighteen years after the fact, these guys were convicted about six months after pearls murder for Pakistanis. A pakistani appellate court has

now thrown out the terrorism and murder convictions they left in the kidnapping conviction which again underscores that even the pakistani court is convinced that these guys did it but they reduced it down to what they call simple kidnapping, the penalty for which is. seven years in custody so they originally got the death penalty, even obviously they haven't. They not only not been put to death, but now their sentences have been reduced to seven years, which means they could be led out. They could be led out today for all we know, except if the pakistani government decides to appeal to Pakistan Supreme Court, then they can continue to be dead, and at least until the Supreme Court heard the case. But I get you a wretched, a Kangaroo court system over there. is why the litigation is still going on eighteen years later, and

We don't know what will happen with this case, but I think we have to be prepared for the possibility that the people all of the people who are complicit in this to the extent that we ve gotten any justice in the Pearl family, has gotten any justice out of this. It's it's only we ve gotten up until this point. These guys are not going to face not only not going to face probably the ultimate penalty that they should face the this, but this is Travesty know probably ultimately be released as horrifying, all the time we have for this week's upsurge in this international view, podcast part guess been produced by the incomparable, sir. She thanks everyone for listening and thank you. Undemocratic. French stay safe, everyone,