Napolitano: Correct. You simply serve this on the financial institution. The financial institution knows that they have to preserve the requested record. Under the Electronic Privacy Act, though, the financial institution could call the person whose bank account was being investigated and say: "We've got a subpoena, but it's unlike any subpoena we've ever seen before because it's not signed by a judge. We're going to honor it in 10 days. If you want to challenge it, challenge it." And you could still go to a judge and challenge it. It wouldn't be the judge who issued it because it wasn't issued by a judge, but you could go before a federal judge, and the government would have to justify the so-called national security letter.
Now comes the PATRIOT Act and the following additions: The recipient of the request cannot tell anyone about it, so the financial institution can't tell you it got this request. It must turn the information over immediately, and the FBI is not required any longer to demonstrate even in its own notes that the person that it's going after is a foreigner. It's anyone the FBI thinks may provide information about terrorism. The government is now permitted to violate the Fourth Amendment by writing its own search warrants. It is permitted to silence the recipient of the search warrant, which violates the First Amendment. And by this silence, it de facto violates the Fifth Amendment, which guarantees you due process because due process means you can't have anything taken from you--a document, your wealth, or your freedom--without a trial.
It gets worse: Two-and-a-half years after the PATRIOT Act was signed, the Intelligence Authorization Act of 2004 is signed. It redefines the term financial institution. Under the rubric of "financial institution," it has included a tremendous number of [businesses] that are not financial institutions, upon which the government can now serve self-written search warrants. These include hotels, casinos, car dealers, jewelry stores, real estate offices, insurance agents, lawyers, bodegas, kiosks in a mall where you would buy a magazine or where you would wire money, and the post office.
Reason: Is there any reason to believe the PATRIOT Act has helped keep us safe from terrorism?
Napolitano: We have not been attacked since 9/11. Who knows why? We wiped them out of Afghanistan. We inflicted enormous setbacks on them in Iraq. The government can take all the credit that it wants on the basis of the PATRIOT Act, but the government cannot point to a single successful prosecution for terrorist activity where the evidence obtained was under the PATRIOT Act--at least a successful prosecution that wasn't overturned eventually. The PATRIOT Act creates one new independent crime, the crime of speaking. The rest of the PATRIOT Act does not create substantive crimes. It gives tools, unconstitutional tools, to law enforcers. They have used those tools, but they haven't gotten a single prosecution for terrorist acts on the basis of it. They've gotten five prosecutions having to do with political corruption and drugs. One of the things that John Ashcroft gave to Congress in return for no debate was the sunset clause. The other was that the PATRIOT Act would only be used in the war on terror.
Both of those promises have been violated. We know from newspaper accounts that the PATRIOT Act was used to gather information on political corruption in Las Vegas and against drug dealers elsewhere. The Intelligence Reform Act of '04 gets rid of one of the sunset clauses.
Reason: Let's talk about the evolution of your views. During your college years in the late '60s, you wore a "Bomb Hanoi" T-shirt and supported Richard Nixon's law and order campaign. You write that eight years on the bench as a superior court judge in New Jersey turned you into a "born-again individualist," and Fox News Channel viewers can see you regularly argue in favor of restrictions on cops and law enforcement more generally. How did serving on the bench change you?
Napolitano: I had a realization that many [law enforcement agents] were lying. Some of them would acknowledge, not to the extent that I would have them charged with perjury, but in the wink and the nod in a conversation with them afterwards, "Well, we almost don't care if you found out that we kicked in the taillight." "We knew," they'd suggest, "from the profile--Mercedes Benz, New York plates, African-American driver, coming off the George Washington Bridge--it was more likely than not that drugs were in there, and we don't even care." They took an oath to uphold the Constitution, and they're violating that oath when they violate the rights of the driver of that car.
I've always considered myself a Barry Goldwater Republican. I want the Democrats out of my pocketbook, and I want the Republicans out of my bedroom. I believe that the Constitution and the natural law mandate that the individual is greater than the state and that individual rights are the whole reason for our success in the Western world. Our cultural successes, our enjoyment of freedom, our financial successes, are all due to unleashing individual initiative and guarding and protecting individual liberty.
On many issues, I agree with conservative thought. It's not society that causes crimes; individuals cause crimes. I believe abortion is murder. I believe the Second Amendment protects an absolute right to keep and bear arms. I believe affirmative action based on race is an absolutely unconstitutional as well as immoral policy. I also believe that government is best which governs least and that the Constitution only gives 18 specific enumerated delegated powers to the federal government.
I believe that Congress and the president and the Supreme Court have grown to an unrecognizable point, where we now have members of Congress that think they can solve every problem under the sun. So Sen. John McCain [R-Ariz.], for whom I have a lot of respect, said to [New York Yankees owner] George Steinbrenner, "Don't you dare pay Jason Giambi, because we heard a rumor in a newspaper that he told a grand jury that he once used steroids, and if you do, we're going to make sure you can't." What are they going to outlaw next? The speed of Roger Clemens' fastball because it might hurt the batters' wrists? I mean, this is an attitude of Potomac fever that the government thinks we can legislate about and solve every crime and every problem.
Reason: Let's talk about natural law and positivism. Sketch the two camps and why you believe what you do.
Napolitano: Scholars and lawyers and jurists and people interested in this have always debated what is the source of our rights. There are many, many schools of thought, but they basically fall into two categories. One says that our rights come by virtue of our humanity because we are created in God's image and likeness. Because God is perfectly free, he has instilled in us all the yearnings for freedom that we have: freedom of thought, freedom to develop one's personality, freedom to express oneself, freedom of movement, freedom of religion, freedom of association, etc. That school of thought is known as the natural law. Thomas Jefferson, who wrote the Declaration; James Madison, who wrote the Constitution; and virtually all the Founding Fathers, even though some were deists and some were atheists, they were to a person believers in the natural law.
�The other school of thought is sometimes called positivism, sometimes called legal realism. It basically says that the law is whatever the lawgiver says it is. As long as the lawgiver follows its own rules, whatever it says is the law. So positivism would say the majority in a democracy always rules. There are no minority rights because there are no brakes on the majority will. If the majority wants to get rid of the First Amendment, the majority rules; there is no First Amendment. Therefore, there's no protection for freedom of speech. If the majority wants to take property belonging to person A and give it to person B because the majority rules, the majority can do that because, again, there are no natural rights that would allow person A to keep his property against the will of the government.
The attraction to positivism is it is pure democracy. The majority literally always rules. Or whoever is in power always rules. Positivism didn't rear its head successfully, in my view, until the administration of Franklin Delano Roosevelt, when we took a decided step toward a centralization of power in Washington and ultimately toward many socialistic programs that we now have because FDR was the ultimate positivist who believed whatever law he signed was a good law and there were no brakes on that.
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