The meaning of "offenses against the laws of nations"
by Jon Roland, Constitution Society

Art. I Sec. 8 Cl. 10 of the Constitution for the United States delegates the
power to Congress to "define and punish ... Offenses against the Laws of
Nations". It is important to understand what is and is not included in the
term of art "laws of nations", and not confuse it with "international law".
They are not the same thing. The phrase "laws of nations" is a direct
translation of the Latin "jus gentium", which means the underlying
principles of right and justice among nations, and during the founding era
was not considered the same as the "laws", that is, the body of treaties and
conventions, between nations, the "jus inter gentes", which is
"international law". The distinction goes back to Roman Law.

Briefly, the Laws of Nations at the point of ratification in 1789 included
the following general elements, and prosecution of those who might violate
them:

(1) No attacks on foreign nations, their citizens, or shipping, without
either a declaration of war or letters of marque and reprisal.

(2) Honoring of the flag of truce, peace treaties, and boundary treaties.

(3) Protection of wrecked ships, their passengers and crew, and their cargo,
from depredation by those who might find them.

(4) Prosecution of piracy by whomever might be able to capture the pirates,
even if those making the capture or their nations had not been victims.

(5) Care and decent treatment of prisoners of war.

(6) Protection of foreign embassies, ambassadors, and diplomats, and of
foreign ships and their passengers, crew, and cargo while in domestic waters
or in port.

(7) Honoring of extradition treaties for criminals who committed crimes in a
nation with whom one has such a treaty who escape to one's territory or are
found on the high seas.

And, although it was not yet firmly established with all nations in 1789,

(8) Prohibition of enslavement of foreign nationals and international
trading in slaves.

No subsequent additions to the "laws of nations" could have the effect of
expanding the delegated powers under the Constitution. Ratification froze
those powers at the moment of ratification. Only the amendment procedures
provided under the Constitution can add to, subtract from, or modify them.

Some confusion on whether a treaty could confer additional powers on
government was introduced by the opinion in Missouri v. Holland, 252 U.S.
416 (1920), which held that a migratory bird treaty with Canada enabled the
national government to regulate the protection and harvesting of migratory
birds within the United States, even though without the treaty the national
government would not have the power to do so. This contradicts the ancient
Law of Agency whereunder an agent, in this case federal officials, may not
acquire new powers from the exercise of a power, but only by delegation from
the principal. However, the opinion may also be read to say that it is only
state governments that are required by a treaty to exercise their already
delegated powers, and that federal courts have appellate jurisdiction over
cases of state compliance with federal treaties.

The case law was further muddied by the opinion in the case of United States
v. Belmont, 301 U.S. 324 (1937), which held that executive agreements are
entitled to the same constitutional authority as treaties in the relation
between the states and the federal government, and that the supremacy clause
makes both treaties and executive agreements supreme over state power as to
the subjects covered by them. This decision has given rise to alarm by civil
libertarians, because there is no congressional approval required for
executive agreements, much less the two-thirds vote of the Senate required
for treaties, or the ratification by three-fourths of the states required
for constitutional amendments. By this reasoning, the president acting in
collusion with any foreign government could effectively eliminate states
except as voting districts.

Based on these precedents, then Secretary of State John Foster Dulles
promulgated what some call the "Dulles Doctrine" that treaties, executive
agreements, and votes in the United Nations, could effectively amend the
U.S. Constitution and expand the powers of the federal government without
limit.

However, this misunderstanding about whether the constitution could be
amended through the making of treaties was denied in the case of Reid v.
Covert, 354 U.S. 1 (1957):

"This court has regularly and uniformly recognized the supremacy of the
constitution over a treaty" [Reid, at p. 17].

"... when a statute which is subsequent in time is inconsistent with a
treaty, the statute to the extent of conflict, renders the treaty null."
[Reid, supra, citing Geofroy v. Riggs, 133 U.S. 238, at p. 267]

"No agreement with a foreign nation (no exec. orders, no Pres. directives,
no "accords" etc.) can confer power on Congress or any other branch of
government, which is free from the restraints of the constitution" [Reid,
supra].

Despite the decision in Reid v. Covert, however, the dominant faction in the
federal government continues to maintain the Dulles Doctrine, arguing that
Reid only applied to infringements on rights recognized in the Constitution,
and did not prevent expansion of federal powers through treaty, even though
one of the fundamental rights recognized in the Tenth Amendment was the
right not to have government exercise powers not delegated to it.

.

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Legislative Update 1-25-2016  

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 WE SUPPORT THESE BILLS

•   Property Rights

 SB 478 Eminent domain; reimbursement of costs

 Eminent domain; reimbursement of costs. Provides that costs and fees may be awarded in condemnation actions where the amount the owner is awarded at trial as compensation for the taking of or damage to his property is 20 percent or more greater than the amount of the condemnor's initial written offer. Under current law, such costs and fees may be awarded if the amount awarded as compensation at trial is 30 percent or more greater than the petitioner's final offer. The bill removes an exception for meeting the requirements for payment of costs and fees for condemnation actions involving easements valued at less than $10,000.

The bill also replaces the word "petitioner" with "condemnor" in the provision of the Code allowing the court to award costs and fees and allows the court to order the condemnor to pay to the owner reasonable fees and travel costs incurred by the owner for up to three experts, or as many as called by the condemnor, whichever is greater, who testified at trial.

 Status: (We support this bill)

01/12/16  Senate: Referred to Committee for Courts of Justice

 The Senate Courts of Justice Committee meets on Mondays (8:00 a.m.) and Wednesdays (15 minutes after adjournment of full Senate) in Senate Room B.  SB 478 is not on the docket for Monday, 1/25/16.

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 SB 543 Inverse condemnation proceeding; reimbursement of owner's costs

 Inverse condemnation proceeding; reimbursement of owner's costs. Directs the court to reimburse a plaintiff for the costs of an inverse condemnation proceeding for "damaging" property if a judgment is entered for the plaintiff. Under current law, the court is directed to award costs only for the "taking" of property. The change made in this bill corresponds with the language of amendments to Article 1, Section 11 of the Constitution of Virginia, which became effective on January 1, 2013

 Status: (We support this bill)

01/13/16  Senate: Referred to Committee for Courts of Justice

 The Senate Courts of Justice Committee meets on Mondays (8:00 a.m.) and Wednesdays (15 minutes after adjournment of full Senate) in Senate Room B.  SB 543 is not on the docket for Monday, 1/25/16.

 •   Asset Forfeiture

 SB 108 Forfeiture of property used in connection with the commission of crimes; finding of guilt required

 Forfeiture of property used in connection with the commission of crimes; finding of guilt required. Requires that any action for the forfeiture of property used in connection with the commission of a crime be stayed until the person whose property is the subject of the forfeiture action has been found guilty of the crime authorizing the forfeiture, regardless of whether he has been sentenced. The bill provides that property may be forfeited even though no finding of guilt is made if (i) the forfeiture is ordered by the court pursuant to a plea agreement or (ii) the owner of the property has not submitted a written demand for the return of the property within one year from the date the property was seized.

Status: (We support this bill)

12/28/15  Senate: Referred to Committee for Courts of Justice

 The Senate Courts of Justice Committee meets on Mondays (8:00 a.m.) and Wednesdays (15 minutes after adjournment of full Senate) in Senate Room B.  SB 108 is not on the docket for Monday, 1/25/16.

 •   School Choice

 HB 389 Parental Choice Education Savings Accounts established

 Parental Choice Education Savings Accounts established. Permits the parent of a public preschool, elementary, or secondary school student to apply to the school division in which the student resides for a one-year, renewable Parental Choice Education Savings Account that consists of an amount that is equivalent to 90 percent of all applicable annual Standards of Quality per pupil state funds appropriated for public school purposes and apportioned to the resident school division in which the student resides, including the per pupil share of state sales tax funding in basic aid and any state per pupil share of special education funding to which the student is eligible. The bill permits the parent to use the moneys in such account for certain education-related expenses of the student, including tuition, deposits, fees, and required textbooks at a private, sectarian, or nonsectarian elementary or secondary school or preschool that is located in the Commonwealth and does not discriminate on the basis of race, color, or national origin. The bill also contains provisions relating to auditing, rescinding, and reviewing expenses made from such accounts.

 Status: (We support this bill)

01/06/16  House: Referred to Committee on Education

01/15/16  House: Assigned to sub: Subcommittee Education Innovation

01/19/16  House: Subcommittee recommends reporting (5-Y 4-N)

01/19/16  House: Subcommittee recommends referring to Committee on Appropriations

01/20/16  House: Reported from Education (13-Y 9-N)

01/20/16  House: Referred to Committee on Appropriations

 SB 389 has been referred to the House Appropriations Committee which meets Mondays, Wednesdays, and Fridays (½ hour after the full House adjourns) in the 9^th Floor Appropriations Room.  SB 389 is not on the docket for Monday, 1/25/16.

 •   Firearm Related

 HB 49 Right to keep & bear arms; codifies opinion of Supreme Court of U.S. in D.C. v. Heller

 Right to keep and bear arms. Codifies the opinion of the Supreme Court of the United States in District of Columbia v. Heller, 554 U.S. 570 (2008), that the right to keep and bear arms conferred by the United States Constitution and the Constitution of Virginia is an individual right.

 Status: (We support this bill)

11/25/15  House: Referred to Committee for Courts of Justice

 HB 49 has been referred to the House Courts of Justice Committee which meets Mondays, Wednesdays, and Fridays (½ hour after the full House adjourns) in House Room C.  The Monday (1/25/16) meeting has been canceled.

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 HB 83 Federal firearms laws; enforcement.

 Federal firearms laws; enforcement. Provides that agencies and political subdivisions of the Commonwealth, and employees thereof, shall not knowingly aid any employee or entity of the federal government (i) in the enforcement of federal firearms laws that take effect on or after December 1, 2015, or (ii) in the conduct or enforcement of a criminal background check related to any intrastate sale, loan, gift, or other transfer of a firearm between citizens of the Commonwealth.

 Status: (We support this bill)

12/10/15  House: Referred to Committee on Militia, Police and Public Safety

01/15/16  House: Referred from Militia, Police and Public Safety by voice vote

01/15/16  House: Referred to Committee on Appropriations

HB 83 has been referred to the House Appropriations Committee which meets Mondays, Wednesdays, and Fridays (½ hour after the full House adjourns) in the 9^th Floor Appropriations Room.  HB 83 is not on the docket for Monday, 1/25/16.

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 HB 132 Risk management plan; coverage for injury or death on state property, concealed handgun prohibition.

 Risk management plan; coverage for injury or death on state property; concealed handgun prohibition. Provides that the risk management plan established by the Division of Risk Management shall include coverage for any claim made by or on behalf of a person possessing a valid concealed handgun permit who is injured or killed upon any buildings, grounds, or properties owned or leased by the Commonwealth as a result of the criminal act of a third party if the carrying of a concealed handgun on such buildings, grounds, or properties was prohibited by regulation. The bill also provides that, in addition to providing for the actual damages arising from the person's injury or death, the coverage shall include an additional amount of $350,000.

 Status: (We support this bill)

12/18/15  House: Referred to Committee on General Laws

01/18/16  House: Assigned to sub: Subcommittee #4

 HB 132 has been assigned to Subcommittee # 4 of the General Laws Committee which meets on Thursdays (upon adjournment of the full committee) in House Room C.  The docket for Thursday, 1/28/16, has not been posted, yet.

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 HB 133 Risk management plan; coverage for injury/death on college property, concealed handgun prohibition.

 Risk management plan; coverage for injury or death on college property; concealed handgun prohibition. Provides that the risk management plan established by the Division of Risk Management shall include coverage for any claim made by or on behalf of a person possessing a valid concealed handgun permit who is injured or killed upon any buildings, grounds,or properties owned or leased by a public institution of higher education as a result of the criminal act of a third party if the carrying of a concealed handgun on such buildings, grounds, or properties was prohibited by regulation. The bill also provides that, in addition to providing for the actual damages arising from the person's injury or death, the coverage shall include an additional amount of $350,000.

 Status: (We support this bill)

12/18/15  House: Referred to Committee on General Laws

01/18/16  House: Assigned to sub: Subcommittee #4

 HB 133 has been assigned to Subcommittee # 4 of the General Laws Committee which meets on Thursdays (upon adjournment of the full committee) in House Room C.  The docket for Thursday, 1/28/16, has not been posted, yet.

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 HB 443 Carrying a concealed handgun; permit not required.

 Carrying a concealed handgun; exception. Allows any person who regardless of having met the demonstration of competence requirement is otherwise qualified to obtain a concealed handgun permit to carry a handgun concealed in any place where such person could openly carry a handgun.

 Status: (We support this bill)

01/07/16  House: Referred to Committee for Courts of Justice

 HB 443 has been referred to the House Courts of Justice Committee which meets Mondays, Wednesdays, and Fridays (½ hour after the full House adjourns) in House Room C.  The Monday (1/25/16) meeting has been canceled.

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 HB 1096 Firearms; regulation by state entities.

 Regulation of firearms by state entities. Prohibits any state entity from adopting or enforcing any rule, regulation, policy, or administrative action governing the purchase, possession, transfer, ownership, carrying, storage, or transporting of firearms, ammunition, or components or combinations thereof unless expressly authorized by statute. The bill invalidates any such rule, regulation, policy, or administrative action adopted by a state entity prior to July 1, 2016. The bill does not prohibit a law-enforcement officer from acting within the scope of his duties, nor does it apply to the Department of Corrections, Department of Juvenile Justice, Department of State Police, Virginia National Guard, Department of Behavioral Health and Developmental Services, or Department of Social Services. The bill allows entities to adopt or enforce rules or regulations necessary for compliance with the Fire Prevention Code or necessary for the operation of Reserve Officer Training Corps programs. The bill expressly authorizes the Board of Game and Inland Fisheries to create certain regulations governing the possession, carrying, transportation, and storage of firearms, ammunition, or components or combinations thereof.

 Status: (We support this bill)

01/13/16  House: Referred to Committee on Militia, Police and Public Safety

01/18/16  House: Assigned to sub: #1

01/21/16  House: Subcommittee recommends reporting with amendment(s) (4-Y 1-N)

 HB 1096 has passed through Subcommittee #1 of the Committee on Militia, Police and Public Safety and will now go to the full committee which meets on Fridays (9:00 a.m.) in House Room C.  The docket for Friday, 1/29/16, has not been posted, yet.

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 HB 1163 Concealed handguns; recognition of out-of-state permits.

 Recognition of out-of-state concealed handgun permits. Provides that a holder of a concealed handgun permit issued by any state who is at least 21 years of age is authorized to carry a concealed handgun in Virginia. The bill requires the Attorney General to enter into agreements for reciprocal recognition with other states that require an agreement to be in place before the state will recognize a Virginia concealed handgun permit as valid in the state. Current law recognizes concealed handgun permits issued by states that (i) provide a 24-hour-a-day means of verification of the validity of the permits issued in that state and (ii) have requirements and qualifications that are adequate to prevent possession of a permit by persons who would be denied a permit in Virginia.

 Status: (We support this bill)

01/14/16  House: Referred to Committee on Militia, Police and Public Safety

01/19/16  House: Assigned to sub: #1

01/21/16  House: Subcommittee recommends reporting (4-Y 1-N)

 HB 1163 is the companion bill to SB 610 (see below) and has passed through Subcommittee #1 of the House Committee on Militia, Police and Public Safety.  It will now go to the full committee which meets on Fridays (9:00 a.m.) in House Room C.  The docket for Friday, 1/29/16, has not been posted, yet.

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 SB 610 Recognition of out-of-state concealed handgun permits.

 Recognition of out-of-state concealed handgun permits. Provides that a holder of a concealed handgun permit issued by any state who is at least 21 years of age is authorized to carry a concealed handgun in Virginia. The bill requires the Attorney General to enter into agreements for reciprocal recognition with other states that require an agreement to be in place before the state will recognize a Virginia concealed handgun permit as valid in the state. Current law recognizes concealed handgun permits issued by states that (i) provide a 24-hour-a-day means of verification of the validity of the permits issued in that state and (ii) have requirements and qualifications that are adequate to prevent possession of a permit by persons who would be denied a permit in Virginia.

 Status: (We support this bill)

01/13/16  Senate: Referred to Committee for Courts of Justice

 SB 610 is the companion bill to HB 1163 (see above) and has been referred to the Senate Courts of Justice Committee.  This committee meets on Mondays (8:00 a.m.) and Wednesdays (15 minutes after adjournment of full Senate) in Senate Room B.  SB 610 is not on the docket for Monday, 1/25/16.

Accomack County Circuit Court Clerk 

Not Indexing or filing Records Sent to the Court 

By The Virginia Marine Resources Commission [VMRC]

As a result of a Freedom of Information request [01/12/2016] by UARF's Vice President of Research, Doug Buckley to Samuel H. Cooper, Jr.,   Clerk of the Court and an examination of the files of the Court by Buckley it was discovered that the Court is not properly filing and indexing its records as required by the Virginia Code.  Buckley reports that he, Mike Clair/Chairman of the Virginia Marine Foundation's Virginia Marine Resources Advisory Committee  and court personnel found the records in file cabinets that are unlabeled, and that the court staff was unaware that the records were ever received by the court. 

UARF's President reported to the Foundation's  executive board that due to the lack of record keeping and indexing  by the Circuit Court the Foundation is not able to determine if VMRC has met its burden as set out in  Virginia Code § 28.2-213. /  Distribution of new regulations. A copy of any regulation of general application adopted by the Commission shall be sent to the Registrar of Regulations, the clerks of the circuit courts of all counties and cities in Tidewater Virginia, and to all Commission officers.

Buckley explained that it is the belief of UARF if that VMRC is not in compliance with Virginia Code § 28.2-213.  any regulation passed by VMRC is a legal nullity and accordingly unenforceable.  Buckley further said that he is going to ask his General Assembly Delegate,  Robert Bloxom to make an inquiry to the Virginia Attorney General [AG]to get an opinion from the AG if a non delivered regulation as set out in Virginia Code § 28.2-213.  is enforceable and/r  a legal nullity.  In addition   he will ask the Delegate to ask the AG if the Clerk fails to index and file the regulation as set out in Virginia Code Sections 42.1-86 and 42.1-87 if the regulations are legal nullities.

What Buckley asked for:

Petitioner’s Exhibit 2

Schedule of Documents** / Public Records** that the FOIA Request Addresses

A. Index of Virginia Marine Resources Commission (VMRC) records  / filings for new regulations passed by the VMRC.

B. Virginia Marine Resources Commission regulations recorded with the Clerk of the Court of Accomack County between January 1, 2012 and December 31, 2015.

C. Virginia Marine Resources Commission “Emergency “ regulations recorded with the Clerk of the Court of Accomack County between January 1, 2012 and December 31, 2015.

Get Your Free UARF White Paper/TOMB "The Citizen Soldier" [215 pages].

In medieval times it was a matter of law that common folk must purchase at their own expense and keep ready in their homes some basic weapons to serve and protect their king and state. The rulers expected the peasants to have acquired certain skills with their weapons prior to deployment, although they failed to provide any sort of funding for training.

The English Assize of Arms (1181), promulgated by Henry II, required that each man keep at his own expense in his home a weapon appropriate to his rank and position.¹ The American use of militia was, in reality, a return to traditional practices of this earlier age. In medieval Europe the law defined a militia as "the whole body of freemen" between the ages of fifteen and forty years, who were required by law to keep weapons in defense of their nation.² In the later Middle Ages the militia was the whole body of "citizens, burgesses, free tenants, villeins [serfs] and others from 15 to 60 years of age" who were obliged by the law to be armed.³

Trained Bands (or Trainbands) are found primarily in Elizabethan and Stuart England. The concept and term may be found as early as the reign of Alfred the Great (849-899). "For greater security, certain men in or near each settlement or City, who volunteered or were selected otherwise, were given, or agreed to procure, arms in advance of any emergency."⁴ These men became the mainstay of Cromwell's army during the Puritan Revolution and these units developed from the broader militia. The term is occasionally encountered referring to select militia in the American colonies, especially in New England.

Most European nations had abandoned the militia system by the sixteenth century.⁵ Americans chided the English for abandoning the militia system which had worked so well here. The militia, alone, had served as a check on the native aborigine in the colonial period of American history. For instances, when General Braddock was defeated near Pittsburgh, then Fort DuQuesne, the Virginia militia under Colonel George Washington's command stood against the French and Indians. The British army fled to the eastern seaboard. During the colonial period Americans came to trust the militia to a far greater extent than they trusted the regular royal army. The fancy uniforms and European battle formations may have served the British well in wars in the old world, but they were ill suited for backwoods America.

America's colonial citizen-soldier citizens soldier had their counterparts throughout history, as in ancient and medieval times when the peasants were conscripted to fight as foot soldiers. After the wars were over the peasants, too, returned to their fields. Tradesmen, farmers, men in all walks and vocations of life, had one thing in common: they stood as brothers in arms against the enemy as part of the citizen-soldiery.

The citizen-soldier stands in marked contrast to the professional soldier whose vocation is war. The citizen-soldier does not enter war for pay or booty. He goes to war only reluctantly, spurred on by notions of patriotism, nationalism and duty. He deplores war. He fights only as a last recourse when his nation is threatened and not in imperialistic adventures. There is no human institution any where more fundamental than the militia. As we shall show in this and the ensuing four volumes, excepting only religious dissenters, the true, traditional citizens owned firearms, less as a privilege than as a matter of duty. They came to equate firearms ownership with freedom. A free man is armed; a slave is dispossessed of his arms. No man can trust a government that seeks to disarm him. Those who claim the right to bear arms over and against tyrannical government stand arm in arm with his ancestors who refused to give up their arms at Lexington, Concord, and on a thousand other locations.

FOIA Under Attack By the

Virginia Freedom of Advisory Council

Virginia is not heeding the call to deliver information in a way that creates;

• [1] transparency and;

• [2] demonstrates accountability.

The Unalienable Rights Foundation Office of Civil Rights Case Managers Kathleen McCarthy Forensic Evidence Management Team

Transparency creates a window into the world of government operations.

Accountability provides a measure of how government is performing.

Transparency and accountability providing citizens with a way to see plans for:

·      services and infrastructure;

·      spending;

·      the evolution of public policy;

All of which starts with providing access to information.

 When Virginia’s government holds itself accountable to the people of the Commonwealth, its citizens, our Government shows:

·      us how and why decisions are made;

·      offers measures of whether the public policy that touches and concerns the people of the Commonwealth are successful. 

An accountable and transparent government provides the “People” individuals and business, “Citizens All,” to get: 

[1] involved;

         [2] to help government reach what goals “We the People,”

the Citizens, have set for it.

This is best summarized in the adage, “Accountability builds confidence in government.”

 http://www.esri.com/library/brochures/pdfs/transparency-and-accountability.pdf

Guidance to meet this objective is found in the Code of Virginia:

§ 2.2-3700. B.  By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government…

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. ..  

When elected and appointed officials comply with the Freedom of Information Act:

·      it creates transparency that is free from “pretense and deceit,” which means that citizens will be able to "see through" the workings of its government;

·      to know exactly what goes on when public officials transact public business.

When Government is not transparent it is prone to corruption and undue influence because there is no public oversight of decision-making:

·      Virginia Freedom of Information Act [FOIA]

·      Virginia Public Records Act [PRA]

·      State and Local Government Conflict of Interest [COIA]

·      As found in:

o   Cartwright v. Commonwealth Transp. Comm’r, 270 Va. 58, 613 S.E.2d 449 (2005);

o   Fenter v. Norfolk Airport Authority, 274 Va. 524, 649 S.E.2d 704 (2007)

o   White Dog Publishing v. Culpeper Bd. Of Sup., 272 Va. 377, 634 S.E.2d 334 (2006).

These cases and the CODE all say that both elected and appointed officials in government are held accountable to the people by the laws of the Commonwealth [passed by the General Assembly and interpreted by the Courts] that regulate their and our actions.

The CODE and Constitutions [federal and state] limit the government’s use of power.  This protects the people from abuse. These laws [PRA / FOIA / COIA] require transparency and/or openness in government so that the people may readily have information necessary to evaluate the performance of their elected and appointed officials.

It was reported in The Virginia News Letter [Vol. 90 No. 2 January by Quentin Kid and Meyrem Baer] that a study conducted by the Center of Public Integrity, Global Integrity, and Public Radio International of all 50 states are on the risk of corruption.

In this study The Corruption Risk Report Card gave individual grades of F to the Old Dominion in several key areas one being public access to information, as well as legislative accountability among others.  http://www.coopercenter.org/sites/default/files/publications/Virginia%20News%20Letter%202014%20Vol.%2090%20No%201.pdf

On July 23, 2015, the Unalienable Rights Foundation (UARF) (Virginia State Corporation Commission ID No. 0632406-5 a Virginia citizen, a Virginia non-stock / not-for-profit corporation/organization and a news organization {see www.UARF.us}) whose [1] mailing address is P.O. Box 1224, Parksley, Virginia 23421-1224, [2] and office address is 306 Main Street, Newport News, Virginia 23601 is endeavoring to provide a valuable public service by independently analyzing and reviewing, without cost to the taxpayers, the operations and records of public entities/bodies (Virginia’s FOIA exists to provide a mechanism [Slip Op. II] for Virginia citizens to obtain an accounting from their public officials … McBurney v. Young, 569 U.S. ___ 1217 (2013) to ensure that the operations of government, such as The Freedom of Information Advisory Council [VFOIAC] and the Library of Virginia [LVA], Agencies [“Agency” means all boards, commissions, departments, divisions, institutions, authorities, or parts thereof, of the Commonwealth or its political subdivisions and includes the offices of constitutional officers Virginia Code§ 42.1-77] emailed a FOIA request to Ms. Maria J.K. Everett, Executive Director, Virginia Freedom of Information Advisory Council to examine all documents regarding:

·      Hampton Roads Transportation Accountability Commission [HRTAC]

·      Hampton Roads Transportation Planning Organization  [HRTPO]

·      Hampton Roads Planning District Commission [HRPDC]

All of which are alter egos of each other, as each of their responses to separate UARF FOIA requests to each agency indicates.

The responses to UARF FOIA requests from VFOIAC and LVA appear to UARF to confirm the Kid /Bayer findings in their report that touches and concerns corruption.  It appears to UAARF that the corruption has already set in, it is not merely a risk.

Ms. Everett response on July 29, 2015, to UARF’s FOIA Request dated July 22, 2015:

Please be advised that a search was conducted of all of our formal, published opinions, our electronic Correspondence directory, and all of our email dating back to 2010…  We also have paper copies of telephone calls and emails dating back to 2000; there are over 20,000 of these records.  We searched these paper phone and email records dating from July 1, 2014, through present date.  The only records in this office's possession that relate to your request are an email sent to Delegate Chris Jones offering FOIA training for HRTAC and a memorandum concerning the application of FOIA to Commissioners of Accounts that was shared with Senator Norment….the original emails will be forwarded to you.  We have chosen not to charge for the time involved in conducting these searches.

Please note that as mentioned, we have an additional 14 years' worth of paper telephone call and email records that are organized by month and year.  It took two of us approximately two hours to search one year's worth of these records (July 1, 2014, to present date, as described above).  We therefore estimate that it would take approximately 28 hours for us to search all of these records to try to find any that are responsive to your request.  At an administrative rate of $20/hour, the estimated cost for such a search would be $560 (we choose not to charge our rates as attorneys as searching these records is an administrative task). 

Unfortunately, while we appreciate your offer to search the records, because some of the records are confidential pursuant to subdivision 4 of § 30-179, we do have to perform this search ourselves.  Therefore, if you want us to search all of these records, please remit an advance deposit in the amount of $560, payable to the Treasurer of Virginia.  In the event that you do wish for us to search all of these records, please be advised that it is practically impossible to provide the requested records or determine whether they are available within the five working days required by FOIA because of the volume of records to be searched.  Therefore, we are invoking subsection B 4 of § 2.2-3704 to provide us with seven additional working days to respond to your request. However, please do not hesitate to contact us if you would like to work out some other arrangement.  

After receiving Ms. Everett’s response dated July 29, 2015, UARF sent Ms. Everett the following email dated August 12, 2015:

Again, I would like to thank you for responding so promptly to the July 22, 2015, FOIA and providing me with the two records below:

1.      An email sent to Delegate Chris Jones offering FOIA  training for HRTAC

2.      A memorandum concerning the application of FOIA to  Commissioners of Account that was shared with Senator Norment. 

Additionally, your email response dated July 29, 2015, indicated that you have an additional 14 years’ worth of paper telephone call and email records that are organized by month and year and that it would take an estimated 28 hours to search all of these records to try and find any that are responsive to my request at a cost of $560.00.

Please be advised that we do not expect you or your staff to search, review and/or inspect over 20,000 records.  At this time, I would like to narrow my request, which I believe would be less time-consuming and would substantially cut the costs associated with this request.  

Therefore, I herby request a digital inventory and/or index of the records that touch and concern HRTAC / HRTPO / HRPDC in Exhibit 1, 2, and 3, of the July 22, 2015, FOIA emailed to you on July 23, 2015.  

With an inventory / index, I will then be able to, with some specificity, limit the number of records requested and, at the same time, it will substantially decrease the number of hours of searching by you and your staff.   

Again, please provide me with an itemized schedule of any / all charges related to this request pursuant to §2.2-3704.F.

On August 14, 2015, Ms. Everett responded to UARF’s email dated August 12, 2015:

We do not have a digital inventory or index of records that touch and concern HRTAC / HRTPO / HRPDC (we have never created such a record).  Just so you know, we did search for all items responsive to your original request in our electronic files including email, website, published opinions, and our network folder, as detailed in our previous response.  The two records we sent were the only responsive items that we have.  We elected not to charge for the time involved in that search.  The only other records we have are paper records, as also described in our previous response, which you have indicated you do not wish for us to search.  If you have any questions or need additional information, please do not hesitate to call. 

Needless to say, I was completely astonished to learn that the FOIA Advisory Council was not following the FOIA laws § 2.2-3700 - § 2.2-3714 and/or the statutes as required under the Public Records Act § 42.1- § 42.1-92. 

Code Section § 42.1-76 The General Assembly intends by this chapter to establish a single body of law applicable to all public officers and employees on the subject of public records management and preservation and to ensure that the procedures used to manage and preserve public records will be uniform throughout the Commonwealth. This chapter may be cited as the Virginia Public Records Act.

§ 42.1-76.1. Any person elected, reelected, appointed, or reappointed to the governing body of any agency subject to this chapter shall (i) be furnished by the agency or public body's administrator or legal counsel with a copy of this chapter within two weeks following election, reelection, appointment, or reappointment and (ii) read and become familiar with the provisions of this chapter.

§ 42.1-92. B. By enacting this chapter, the General Assembly recognizes that an informed citizenry is indispensable to the proper functioning of a democratic society. In order to remain informed, citizens must know about the activities of their government and benefit from information developed at public expense….

UARF has a written statement that contradicts Ms. Everett’s email response to UARF’s FOIA requested dated July 22, 2015. 

This contradiction could have easily been resolved if Ms. Treadway, Librarian of Virginia [LV] had implemented, which is her mandate, the Public Records Act and enforced HRTAC / HRTPO / HRPDC to comply with the Code of Virginia § 42.1 - 42.1-92. 

If Ms. Treadway had exercised her discretion pursuant to § 42.1-90.1 [her good judgment], she could have conducted an audit of HRTAC / HRTPO / HRPDC to enforce these Statutes to demonstrate transparency and accountability in Virginia government. 

As it stands now, FOIA is nothing more than a mere gesture, words on a page in some book, because the Library of Virginia is not applying the provisions of the Public Records Act. § 42.1 - 42.1-92.

UARF does not know if Ms. Treadway, has contacted the agencies referenced above that have failed to obey the laws of Virginia because Ms. Treadway has failed to respond to the FOIA request emailed to her on July 22, 2015, and again on August 17, 2015.      

Therefore, UARF cannot determine whether Ms. Everett’s response to the July 22, 2015, FOIA request is a contradiction or a false uttering.

If it is a false uttering, the question arises whether it was a knowing and a willing uttering that would lead to holding the respondents to the penalties of Virginia Law that deals with false statements etc., including and not limited to:

·      CODE  § 18.2-462;

·      CODE  § 18.2-469;

·      CODE  § 18.2-471;

·      CODE  § 18.2-472;

Consequently, in an attempt to follow the Code of Virginia regarding the indexes and audits, UARF contacted Delegate William DeSteph and requested that he contact the Attorney General to determine if the FOIA Council and the Library of Virginia are subject to the FOIA Statutes and the Public Records Act. 

Delegate DeSteph, on UARF’s behalf, contacted the Attorney General, and on Thursday, August 20, 2015, at approximately 6:32 pm Delegate DeSteph confirmed that the FOIA Council and the Library of Virginia are both subject to the Public Records Act and the FOIA Statutes. 

A copy of Delegate DeSteph’s confirmation from the Attorney General was forwarded to Ms. Everett and Ms. Treadway.

Yet to date, UARF has not received a response to UARF’s FOIA request to Ms. Everett for an Index of records regarding HRTAC / HRTPO / HRPDC, as well as a request to Ms. Treadway that HRTAC/ HRTPO/ HRPDC comply with the Public Records Act including an official audit conducted by Ms. Treadway.

An indication to UARF that the Freedom of Information Advisory Council and the Library of Virginia lack independence. 

After reviewing the Commonwealth of Virginia’s website, it is quite clear that the Freedom of Information Advisory Council is part of the machinery of government.  FOIA is a branch of the Division of Legislative Services [DLS] and is designated as part of the services provided by DLS on the State’s Web Site that states that:          

The Division of Legislative Services [DLS] is the legislative branch agency created statutorily by the General Assembly to provide nonpartisan legal and general research services to members of the General Assembly and its standing committees in the House of Delegates and Senate of Virginia.

DLS’s Mission statement on the Commonwealth of Virginia’s Website states that:

The Division’s mission is to assist legislators in fulfilling their duties and obligations as members of the General Assembly.  This is accomplished by providing clear, concise, and objective information to all 140 members of the General Assembly.”

Accordingly, by law, VFOIA works in tandem with the members of the General assembly.  VFOIA’s priority, according to the DLS website, works in concert with the Legislators and, therefore, its loyalty is with the Legislators and not with the people of the Commonwealth.

Therein lies the problem. 

VFOIA lacks the autonomy or independence to objectively review, revise or delete any exemptions, which is the reason exemptions continue to pile up. 

The simple fact is that the FOIA council wears two hats that create unavoidable conflicts because of the many different interests and loyalties that exist at any given time within these competing roles.

As such, the FOIA council has a duty to more than one person, but cannot do justice to the actual or potentially adverse interest of both parties.  The people of Virginia’s interests are being overlooked.

Because the FOIA Council is staffed by the Division of Legislative Service [DLS], it is a branch of the DLS. Based on its own Mission Statement, FOIA is required to serve the legislature and not “We the People.” 

This premise creates a conflict of interest when it attempts to balance the dual role of being an arm or branch of DLS vs. the people’s right to know the inner workings of its government. 

Public servants have a fiduciary responsibility to the people of Virginia.  This fiduciary relationship is based on the utmost trust, confidence, and the integrity of objective decision-making.  Conflicts of interest are a cancer that eats away at these principles. These inherent conflicts could provide an incentive for improper acts in some circumstances.

A conflict of interest can exist even if there are no improper acts as a result of it.  A person with two roles may experience situations where those two roles conflict. Having two roles is not illegal, but the differing roles will certainly provide a conflict that could impair an individual’s ability to perform his or her duties and responsibilities objectively.

Impropriety occurs when an elected or appointed official is faced with a conflict of interest.  Because FOIA is part of the DLS, can the people of the Commonwealth honestly believe that they are not being unduly influenced by the mutual reliance and interaction with the General Assembly? 

Two hats cannot fit on one head at the same time.  What assurances do the Citizens of the Commonwealth have that VFOIAC will not be influenced by a member of the General Assembly to create an exemption that conceals unfavorable legislation that protects the Delegate, Senator, or bad acts of Government instead of the People of Virginia?

Transparency is a commitment to openness and by exposing conflicts of interest corruption that is hidden can easily be detected.

COIA is also aimed at perceptions, as well as the realities. It exists even if no unethical or improper acts occur.   A conflict of interest can create an appearance of impropriety that can undermine confidence in the government.

Even the appearance of impropriety undermines the public’s faith that the process is fair.

VFOIA’s lack of independence presents a dilemma for FOIA because its guiding principle is openness § 2.2-3700.B. and yet the very tenets of FOIA are blurred by the nature of these dual roles.  As a result, the public will continue to lose faith in the integrity of the government’s decision-making process instead of promoting and fostering transparency and accountability.

Meaning of "High Crimes and Misdemeanors"

The question of impeachment turns on the meaning of the phrase in the Constitution at Art. II Sec. 4, "Treason, Bribery, or other high Crimes and Misdemeanors". I have carefully researched the origin of the phrase "high crimes and misdemeanors" and its meaning to the Framers, and found that the key to understanding it is the word "high". It does not mean "more serious". It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.

The word "perjury" is usually defined today as "lying under oath about a material matter", but that is not its original or complete meaning, which is "violation of an oath". We can see this by consulting the original Latin from which the term comes. From An Elementary Latin Dictionary, by Charlton T. Lewis (1895), Note that the letter "j" is the letter "i" in Latin.

periurium, i, n,, a false oath, perjury.

periurus, adj., oath-breaking, false to vows, perjured. iuro, avi, atus, are, to swear, take an oath.

iurator, oris, m., a swearer.

iuratus, adj., sworn under oath, bound by an oath.

ius, iuris, that which is binding, right, justice, duty.

per, ... IV. Of means or manner, through, by, by means of, ... under pretense of, by the pretext of, ....

By Art. II Sec. 1 Cl. 8, the president must swear: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." He is bound by this oath in all matters until he leaves office. No additional oath is needed to bind him to tell the truth in anything he says, as telling the truth is pursuant to all matters except perhaps those relating to national security. Any public statement is perjury if it is a lie, and not necessary to deceive an enemy.

When a person takes an oath (or affirmation) before giving testimony, he is assuming the role of an official, that of "witness under oath", for the duration of his testimony. That official position entails a special obligation to tell the truth, the whole truth, and nothing but the truth, and in that capacity, one is punishable in a way he would not be as an ordinary person not under oath. Therefore, perjury is a high crime.

An official such as the president does not need to take a special oath to become subject to the penalties of perjury. He took an oath, by Art. II Sec. 1 Cl. 8, to "faithfully execute the Office of President of the United States" and to "preserve, protect and defend the Constitution of the United States" to the best of his ability. While he holds that office, he is always under oath, and lying at any time constitutes perjury if it is not justified for national security.

Independent Counsel Kenneth Starr erred in presenting in his referral only those offenses which could be "laid at the feet" of the president. He functioned like a prosecutor of an offense against criminal statutes that apply to ordinary persons and are provable by the standards of "proof beyond a reasonable doubt". That is not to say that such offenses are not also high crimes or misdemeanors when committed by an official bound by oath. Most such offenses are. But "high crimes and misdemeanors" also includes other offenses, applicable only to a public official, for which the standard is "preponderance of evidence". Holding a particular office of trust is not a right, but a privilege, and removal from such office is not a punishment. Disablement of the right to hold any office in the future would be a punishment, and therefore the standards of "proof beyond a reasonable doubt" would apply before that ruling could be imposed by the Senate.

It should be noted, however, that when an offense against a statute is also a "high crime or misdemeanor", it may be, and usually is, referred to by a different name, when considered as such. Thus, an offense like "obstruction of justice" or "subornation of perjury" may become "abuse of authority" when done by an official bound by oath. As such it would be grounds for impeachment and removal from office, but would be punishable by its statutory name once the official is out of office.

An executive official is ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons. It is not necessary to be able to prove that such failures or violations occurred at his instigation or with his knowledge, to be able, in Starr's words, to "lay them at the feet" of the president. It is sufficient to show, on the preponderance of evidence, that the president was aware of misconduct on the part of his subordinates, or should have been, and failed to do all he could to remedy the misconduct, including termination and prosecution of the subordinates and compensation for the victims or their heirs. The president's subordinates include everyone in the executive branch, and their agents and contractors. It is not limited to those over whom he has direct supervision. He is not protected by "plausible deniability". He is legally responsible for everything that everyone in the executive branch is doing.

Therefore, the appropriate subject matter for an impeachment and removal proceeding is the full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied. The massacre at Waco, the assault at Ruby Ridge, and many, many other illegal or excessive assaults by federal agents, and the failure of the president to take action against the offenders, is more than enough to justify impeachment and removal from office on grounds of dereliction of duty. To these we could add the many suspicious incidents that indicate covered up crimes by federal agents, including the suspicious deaths of persons suspected of being knowledgeable of wrongdoing by the president or others in the executive branch, or its contractors.

The impeachment and removal process should be a debate on the entire field of proven and suspected misconduct by federal officials and agents under this president, and if judged to have been excessive by reasonable standards, to be grounds for removal, even if direct complicity cannot be shown.

Vetting the Northampton County Commonwealth Attorney Failed!!!!

Northampton County Commonwealth Attorney Failed to Respond to HCN Vetting Form that Requests to Inspect Documents that Relates to the Commonwealth Attorney's Conflicts of Interests

What Conflicts Does He Have to Hide?

Why Is He Violating the Law?

Guess We will have to wait until they go to court and tell the judge what they failed to respond to the request for documents as required by law to find out.

That is what Doug Buckley told HCN we we asked him about the 42 page vetting form that was sent to the members and has gone unanswered.  Some of the questions that were asked;

 Please confirm or deny that you have you ever used, or have you ever been known by, any other name INCLUDING ANY ENTITY that the Code of Virginia defines as a person? Yes[ ] No[ ] If yes, provide name(s) with supporting DOCUMENTS or in the alternative an index of documents (Va Code 42.1-86 / 2.2-3404.01) )and explain;

Agency description of position/job including duties / responsibilities/ and qualifications [1] you currently hold and/or seeking. Provide supporting documents;

Offices and Directorships: Confirm or deny that you or a member of your immediate family are a paid officer or paid director of a business? EITHER check NO [ ] OR check YES [ ] and if yes, provide name(s) with supporting DOCUMENTS;

Securities: Confirm or deny that you or a member of your immediate family, directly or indirectly, separately or together, own securities valued in excess of $1,000 invested in one business? Account for mutual funds, limited partnerships and trusts. EITHER check NO [ ] OR check YES [ ] and and provide supporting documents

To see the full request that was sent to the Council members

To see the instruction for replying to the FOIA request you received from HelpCom.Net, LLC.

The dog had nothing to say !!

HCN Serves the Virginia Beach Fire Department

With a Freedom of Information Act 

Request for Documents [public records].

The request was denied. The department refused to follow the FOIA law requirement for the denial;
The department failed to meet the following requirements for denial  stated in Code § 2.2-3704.B.1.;

• Such response shall identify with reasonable particularity

• the volume and

• subject matter

• of withheld records, and

• cite,

• as to each category of withheld records,

the specific Code section that authorizes the withholding of the records.

What was asked for:

Any and all policies and procedures for granting interviews by whatever name they may be called, designated, referenced and/or described and in whatever form they may exist.

For the following personnel / entities associated with the Virginia Beach Fire  Department:

 
Michael Barakey

Office of District Chief of Administration

James M Ramsey

Office of District Chief of Personnel and Development

Susan Salafranca

Office of Workforce Planning and Development

IIn Accordance with The Unalienable Rights Foundation’s Articles of Incorporation the Executive Board of the Foundation;

• Nominates the Following Individuals to Serve on the Foundation’s Executive Board

• As its officers

• And as members of the Foundations Board of Directors for the ensuing year as set out in said Articles:

President	David M. Lindsey
1st. Vice President	Jeremy Hopkins, Esq., S.D.F. Constitutional Law
Vice President Government Oversight	John Taylor, Esq., S.D.F., Legislative Oversight
Vice President of Research	Douglass Buckley, S.D.F., Research
General Counsel	Chester "Chuck" Smith, Esq., S.D.F. Constitutional Law, Civil Law
Executive Secretary	Timothy Hanklns, Esq., S.D.F., Civil Law, Criminal Law, Military Law
Senior Deputy Executive Secretary	Michal Bogacki, Fellow Investigations
Secretary	Joseph V. Sherman, Esq. , D.F. Constitutional Law
Treasurer	John Fenter, S.D.F. Community Activism, S.D.F. 2nd Amendment

• Increases the number of individuals to serve on its executive board to the corresponding number of officers herein named [nine (9)].

• Affirms the [1] Positions / [2] Creations/ [3] Increases as herein enumerated.