The government does that for two reasons. One, I think it honestly believes, and there's a lot of data to support this, that if you cut the head off [of a criminal enterprise], you're going to destroy the organization. The second is that a lot of prosecutors are interested in victory, not truth, and they're interested in a high-profile victory because it enhances their own careers and their own standing in the law enforcement community.
One of the most extreme examples involves Sammy "The Bull" Gravano. He testifies against mobster John Gotti. Sammy admits to 19 murders. Nineteen! Gotti is charged with conspiracy to commit one. The government forgives 19 of Sammy's in order to get him to say what the government wants him to say about Gotti. How do we know that he was telling the truth? His incentive to please those who are bribing him is an absolutely irresistible temptation to be forgiven 19 murders and to wipe the slate clean.
Reason: That story has a really happy ending, too, right?
Napolitano: Gotti's convicted, and he dies in jail. Gravano enters and then leaves the witness relocation program and goes back to a life of crime. He imports Ecstasy from the Middle East, and he's now serving 20 years. He couldn't take freedom.
Reason: I hate to harp on cases involving Italians, Judge, especially since my mother's maiden name was Guida. But let's talk about the Philly mobster Little Nicky Scarfo.
Napolitano: The government devised a way to insert software into Little Nicky's laptop computer that would record every keystroke he made. Generally, if the government is interested in some document in that computer that it believes is evidence of a crime, it can go to a federal judge, present its evidence--we call it "probable cause"--and get a search warrant. That wasn't good enough for the government. The government wanted to capture every one of Nicky's thoughts on everything, every single keystroke. So the government persuaded a federal magistrate to issue a warrant for that. Then it devised this software and persuaded the judge to allow the government to break into his home and make it look like a robbery. They break in. They put the software in his laptop. He comes home. He calls the local police. The FBI has not told the local police, so everybody thinks it's a break-in.
Ultimately, of course, it develops that they have recorded all of his keystrokes. They now say to him, "Look at what we've got on you. Spill the beans or we'll spill all of this." Nicky had some pretty bright lawyers that said, "Hmmm, how'd you get that information? We'll spill the beans on this new software." The government recoiled and said you can't reveal the software because of "national security." He eventually pleaded guilty to a low-level crime. It was a deal that the government cut. They didn't realize that by doing this to Nicky they would expose this means of law enforcement--burglary and seizing a lot more than any search warrant constitutionally could offer.
���� The idea of the government capturing every thought of a person, no matter how nefarious, is specifically condemned by the Fourth Amendment, which says you've got to ask for a specific item. There is no statute or case law or constitutional principle that would contemplate or authorize what the government did here. And let me tell you, if they did it to Little Nicky Scarfo, they could do it to Little Nicky Gillespie.
Reason: What's your case against the USA PATRIOT Act?
Napolitano: Let's put aside all of the procedural problems with enacting it. Forget about the fact that there was no debate. Forget about the fact that most members of Congress didn't even have an opportunity to read it. It is a direct assault on at least three amendments to the Constitution: the First Amendment, the Fourth Amendment, and the Fifth Amendment. The PATRIOT Act legitimates the notion that if we give up certain freedoms, the government will keep us safer. I reject that notion from a moral and legal point of view. I also reject it from a practical point of view. It doesn't work. The government doesn't need our freedoms to keep us safer. No one--no lawyer, judge, or historian--can point to a single incident in American history where national security was impaired because someone insisted on their right to free speech or their right to privacy or their right to due process.
The PATRIOT Act encourages what the government calls "national security letters"--basically, self-written search warrants. It violates the Fourth Amendment, which prohibits self-written search warrants. The PATRIOT Act and two of its predecessors, the Foreign Intelligence Security Act of 1977 [FISA] and the Electronic Privacy Act of 1986, authorized the government to obtain search warrants by bypassing [longstanding tradition in] the courts. Today an FBI agent investigating a person need only satisfy her or himself that the person under investigation is a threat to national security. The agent doesn't have to demonstrate evidence to a judge.
FISA began the notion of search warrants on less than probable cause. Prior to that, if the government wanted to search a place and look for a person or a thing, it had to go to a judge and persuade the judge that the thing sought is evidence of a crime, and the person who put the thing there, whether it's a document or contraband, more likely than not was involved in criminal activity. The fancy word for this is probable cause. There's judicial intervention moderating and tempering the government's desire. That's specifically laid out in the Fourth Amendment because of the Framers' revulsion at the king's soldiers going into their barns and through their papers and things with what were effectively self-written search warrants.
FISA did not authorize self-written search warrants, but it [created special courts that] authorized search warrants on less than probable cause. The theory was the people being searched for in these cases are foreign agents. If we find them, we won't prosecute them because we didn't have probable cause to get the warrant, but we'll kick them out of the country because they're a danger to us. Constitutionally, that made some sense. It actually respected the rights of those foreign agents and anybody else who might innocently have been caught up in the surveillance.
The '86 law took that one step further and said it's too easy for people electronically to transfer funds from one account to another. It's too easy for them to learn that we're on their trail, so we want to give the FBI the power to get financial information without going to the courts first. The '86 act authorized national security letters. They were limited to financial institutions, and the target had to be a foreigner. Not a foreign agent anymore, but anyone who was foreign or anyone involved in any organized criminal activity--mob-related activity, drug-related activity, or some involvement with a foreign country.
Reason: And the national security letter merely says that I'm investigating this person on suspicion of criminal activity or that I want the records of this person. And because of national security reasons, you have to give me x, y, and z.
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