Brian Doherty | November 15, 2007
(Page 2 of 3)
This creates a Soviet-style conundrum for the recipient, who can’t even tell his or her lawyer or general counsel about getting the search warrant. You can’t hire outside counsel to challenge it, you can’t mention it to your spouse on the pillow, to your priest in confession—not even to a federal judge in a federal courtroom where all language except perjury should be permitted. This is a conundrum the likes of which government has never visited even under the Alien and Sedition Act. If they prosecuted you for criticizing [President John] Adams you could complain about it to your heart’s content without being charged with another crime.
reason: The Patriot Act was sold as a necessary protection from terror. How has that worked out?
Napolitano: How many people has the DOJ convicted in a jury trial for terrorism based on evidence obtained from the Patriot Act? Zero. They’ve gotten people to plead guilty, to fold, and convicted many on drug trafficking, white slavery, prostitution, gambling, and political corruption, but haven’t gotten a single [terror] case where they presented evidence in a public court before a judge and jury and the jury found a defendant guilty under evidence obtained under Patriot Act.
The reasons stated by [Attorney General John] Ashcroft and the House Republican leadership for there being no debate on the Patriot Act was that terrorists were under every bed, behind every toilet, and inside every refrigerator. Therefore the Patriot Act was so necessary to keep the country safe that there was no time for debate. The most sinful aspect of its passage was how members of the House were not permitted to read it. It was posted on the House Intranet for 15 min [before the vote] and it’s 315 pages long. I read it twice, and it took me 20 hours each time. And you need in front of you not just it, but lots of other statutes, the full U.S. criminal code, to process it. It does lots of amending of other statutes, so you need to reread [those] statues to figure out what government has done by amending that statute.
I was speaking in the Midwest—I don’t want to tell you where, somewhere in the great Heartland—two weeks ago and at the end of my speech, after I said many of these things I’m saying here and in my book, there was a congressman in the audience. He and I socialized a bit, and he said, “Judge, I’m a little ill at ease. I didn’t know until hearing you tonight that the Patriot Act permitted self-written search warrants and criminalized speech about receiving them, and I voted for it twice.”
And I said—knowing how he was going to answer—I asked, “Didn’t you read it? You voted on it.” No, he didn’t have time, he only read the summary. And he didn’t remember the summary talking about self-written search warrants and criminalized speech. He told me many of his colleagues were in the same situation. I said, “WRONG—all your colleagues are in the same situation! No one in the House except maybe leadership read the Patriot Act you voted on!” It’s abominable for the government to tamper with our basic liberties—but it’s inconceivable that they would do so without any debate.
reason: Yet it happened. You called your book A Nation of Sheep, which indicates a pretty low opinion of the people who would let their elected representatives do this to them. But Bush’s approval ratings are pretty low—it seems as if there is something about his administration that’s begun to piss people off. You must have a lot of opportunity to hear from the public with your status as a big public voice on these issues—how upset are Americans about all this?
Napolitano: There is more widespread feeling [against these assaults on our liberty] than you would think, though I have discovered that widespread feeling after coming up with the title of the book! One place I’ve discovered a lot of it I didn’t expect…I speak to lots of right to life groups; I describe myself as “fiercely pro-life,” and I’ve found among right to life groups tremendous disdain with the president and the Congress about abuse of the Constitution, much to my surprise. If while talking about Roe v. Wade I make a comment about Bush and Congress tampering with the Constitution, I’m interrupted with a standing ovation at right to life gatherings, so there is this undercurrent of anger [over the Bush-era assaults on the Constitution].
Another platform for that undercurrent is the campaign of Ron Paul. Congressman Paul has rejuvenated almost single-handedly the Goldwater wing of the GOP. Now Reagan tried, before [James] Baker and his boys advised him on how to behave. Now, I loved the man, but if you look at his record and rhetoric, they are two different things. But Ron Paul had made it legitimate again for small government, maximum individual liberty, Goldwater Republicans to come forth and complain about big government, and I am the recipient of lots of those complaints.
Now, for the most part the president and his colleagues in both parties have succeeded in scaring the daylights out of people. Government grows in wartime because people are afraid, and they accept the satanic bargain that government offers: Give us your liberty and we will keep you safe. Many people think that when government is suppressing speech or privacy or fair prosecutions, that since those usurpations are so drastic that they must be keeping us safer.
But when the president says that his first job is to keep us safe, He is dead wrong. Read the oath of office: His first job is not to keep us safe, but to keep us free [by upholding the Constitution]. When you have this value judgment between freedom and safety, I’d rather have freedom with danger than slavery with safety.
But the supposed tradeoff when it comes to civil liberties isn’t really there. Geoffrey Stone of the University of Chicago Law School spent five years reading every judicial opinion in the history of the United States on freedom of speech. Of all the cases of people prosecuted and convicted of violating some law that regulated speech, his conclusion is there is not one, not one single instance in all American history, where America’s security was adversely affected because of too much free speech. When government says it is keeping you safer by criminalizing speech, it’s a canard. They are making their own job easier by criminalizing speech because they have less dissent to confront.
reason: It seems like you really stand out from the flock at Fox, a network with a reputation for being far more supportive of Bush than you are. In fact, in your book you are downright hostile, even referring to “impeachable offenses.”
Napolitano: The arguments I am articulating here are arguments I have made in the hallways of Fox every day. But I love my job here and my role as house civil libertarian. I am able to do at Fox what I hope to do with this book—help people awake from lethargy and a naive trust of government and question whether or not a government has the power to take rights away. I argue it doesn’t—that these rights are natural and we should be debating these issues before our rights are taken away.
My favorite part of working at Fox, and my books, is the arguments I present about the difference between positivism and natural law, between those who believe all rights come from government, and the natural law position which says that rights come from our humanity, not from government; that we are created by God in his image and likeness, and as He is perfectly free, our rights to speech and thought, and to say what we think and write what we say, to develop our personality, to travel, to privacy, are all as natural as the fingernails on the ends of our finger.
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Napolitano had always annoyed me whenever I saw him on Fox. That was until I heard his talk given at the von Mises Institute. I wonder why he would still be or was ever associated with Fox, unless he has some influence on them from going outright wacky(ier).
With all due respect to Judge Napolitano and all the good respectable libertarians working there, but I can't help but share this website with everyone: Fox News Porn.com ("porn" as in "porn"). :-)
iih,
Radley Balko gets printed in FoxNews rather regularly. Personally,
if the libertarian POV is going to be out there, I would rather it
be on a channel that is watched vs. CSPAN's Book TV. Yes, I am
hoping for freedom by osmosis.
kwix:
I agree, but just thought the website funny and am very glad to see
a good man like Judge Napolitano be there. His talk on the Patriot
Act at the von Mises Institute was amazing, but we don't get to
hear much of the talk's content on Faux News.
Judge Napolitano should be the Libertarian candidate for President. Maybe an articulate judge can wake people up to the dangers of creeping fascism in America? I'm afraid the usual lineup of LP candidates for the nomination have little to no credibility (shall we say gravitas?)with any non-yellow dog voters.
Judge Napolitano is a patriot and Ron Paul is a
juggernaut...
http://truthalert.net/Republican%20Presidential%20Candidate%20Rankings.htm
if the libertarian POV is going to be out there, I would
rather it be on a channel that is watched vs. CSPAN's Book
TV
It's on both. Everybody wins! And Book TV beats standard weekend
programming hands down (for thinking people anyway).
Napolitano: How many people has the DOJ
convicted in a jury trial for terrorism based on evidence obtained
from the Patriot Act? Zero. They've gotten people to plead guilty,
to fold, and convicted many on drug trafficking, white slavery,
prostitution, gambling, and political corruption, but haven't
gotten a single [terror] case where they presented evidence in a
public court before a judge and jury and the jury found a defendant
guilty under evidence obtained under Patriot Act.
So what? Since when has it been necessary for a law to actually
accomplish its published purpose?
[bleh]
The good judge has a heart, and it's in the right place. But he
tends to say things--and even worse, write things--without checking
the facts first.
Take a gander at this takedown, which unfortunately is factually
accurate:
http://www.nationalreview.com/mccarthy/mccarthy200502230740.asp
It's crucial for those on our side to get the facts straight,
because we're fighting uphill against stronger forces. That's why
Radley is a far better spokesman, even though he doesn't get as
much exposure.
It's on both. Everybody wins! And Book TV beats standard
weekend programming hands down (for thinking people
anyway).
Seconded. Brian Lamb is one of my few heroes.
jbd,
Without reading both Napolitano's op-ed and the NRO "take-down" I
have already dismissed the latter. Andrew McCarthy uses 2300 words
to address three points in Napolitano's op-ed. The last of which
is, shall we say, farcical.
Second, lawyers involved in a federal case do not, under the First Amendment, have an unqualified right, let alone an "absolute" right, to advocate for the client in the media or to opine generally about "a matter of public interest." Even when a criminal prosecution is ongoing, the U.S. Supreme Court has, for many, many years, held that participants in the litigation may be tightly regulated in what they may disclose.
Amendment I
Congress shall make no law ... abridging the freedom of speech, or of the press
I don't care what hoops McCarthy or the SCOTUS goes through, you
can't reconcile the two, particularly as the Blind Sheik's actions
did not affect "national security".
What about the fact that if you are accused of being a terrorist, the FBI can listen in on conversations you have wiyh your lawyer. Doesn't that mean that you are not actually innocent until proven guilty?
Brian Lamb is one of my few heroes.
Copy that. Unfiltered, unedited, no talking heads to tell you what
to think.
Somebody has already suggested Judge Napolitano as a perfect VP
candidate for the Ron Paul ticket, but I thought I'd mention it
again.
I can't argue with that. Hizzoner is a good egg.
McCarthy has a rep for using 1,000 words when 300 will do. And I
wonder if he considers the Supreme Court's opinions in Griswold,
Roe, Casey, et al. to be the final word on abortion?
This gets back to a fundamental point: I don't give a flying rat's
a$$ what "the will of the people," the Constitution, or the Supreme
Court says on a particular matter. The question is and remains
what's the moral and ethical position. An appeal to authority is
not sufficient to convince me or any rational-thinking person.
What about the fact that if you are accused of being a
terrorist, the FBI can listen in on conversations you have wiyh
your lawyer. Doesn't that mean that you are not actually innocent
until proven guilty?
Of course. The government would never prosecute people as
terrorists who weren't.
BTW, the former prosecutor was acquitted.
Fox News needs more people like Judge Napolitano, not fewer. The same could probably be said for every other news channel.
Sorry, Kwix, but judges sometimes impose "gag orders" on
attorneys who appear before them to assure a fair trial, and such
restraints have long been upheld (depending on the circumstances),
even by aggressively civil libertarian judges. The First Amendment
protection for speech is arguably the most important in the
Constitution and should be darn near absolute, but that doesn't
mean you can resolve First Amemndment questions simply by quoting
the text, particularly where other rights conflict. (No right to
falsely shout "fire" in a crowded theater, etc.)
As for Lynne Stewart, she announced to the press that her
imprisoned, convicted terrorist client favored an end to the "cease
fire" that his Egyptian terrorist group had declared. This was the
same group that stabbed and shot 57 tourists to death in Luxor.
That can reasonably be interpreted as passing along an instruction
to commit murder, especially where her announcement did not further
any legitimate court procedures in her alleged role as criminal
defense lawyer. And by the way, she jeopardized the rights of other
criminal defendants because she learned her client's views only
after signing an agreement not to disseminate them, and by breaking
her agreement gave the government a great excuse in future cases to
try to deny counsel to terrror suspects. I think some of the
charges against her were overkill, but Lynne Stewart is a convicted
liar, a threat to both public safety and civil liberties, and a
disgrace.
But back to Judge Napolitano. The McCarthy article I linked
correctly points out some very basic factual errors that the judge
made in trying to defend Stewart in a crafted op-ed article. Like I
said, the judge's heart was in the right place, but this kind of
sloppiness doesn't help the cause, and Lynne Stewart makes a very,
very poor poster child for civil liberties.
Hopefully when martial law is declared the men and women of our military will refuse to enforce it. Does anyone know were I can find this writing or poem that goes something like "were will they get the boots to trample us down but from among us...etc"?
Sorry, Kwix, but judges sometimes impose "gag orders" on
attorneys who appear before them to assure a fair trial, and such
restraints have long been upheld (depending on the circumstances),
even by aggressively civil libertarian judges.
Fair enough. But it's a far cry from saying that judges can slap a
well-deserved muzzle on attorneys attempting to try their cases in
the media, and saying that the Constitution permits criminal
penalties for disclosure to the subject of a subpoena. In fact, the
Patriot Act "national security letters" do not invoke the judicial
process at all, since they take place entirely within the executive
branch. That shit's crazy.
ChrisO, that's the way freedom is lost. In drabs and dribbles, litte stuff here, minor shit there, and before you know it, you're a felon if the government wants to declare you one.
Second, lawyers involved in a federal case do not, under the
First Amendment, have an unqualified right, let alone an "absolute"
right, to advocate for the client in the media
This much I know is true. Its a violation of legal ethics inasmuch
as it may improperly influence the trial.
or to opine generally about "a matter of public
interest."
Not sure where this comes from, unless its from case-specific gag
orders. Depending on the breadth of the gag order, though, I would
think it could be legit or not.
I am sorry but if you are willing to stand up and be counted with the people at FoxNews (the 'Pravda' of our day) then you aren't going to get a lot of respect from me. The fact that he jokes around with bullies like O'Reily and morons like Hannity who have done unestimable cultural damage blackens his name in my book.
I still wonder when they will expand the definition of "terrorist" to include gang members.
Question for the Fox haters:
Has any broadcaster other than Fox given a hardcore civil
libertarian like Napolitano so much airtime?
RC Dean,
Good point and the answer is no.
Apparently folks like James would rather have silence if the
alternative is to have the hated Fox news give lots of broadcast
time to a strong defender of civil liberties.
Me, I don't care who broadcasts a strong defender of civil
liberties just as long as it gets broadcast.
For those of you who have attempted to use the argument that
anything that emanates from Fox News must be wrong simply by virtue
that it was, at one time, seen on Fox news. You are using a
rhetorical stunt called guilt by association, or simply you are
"poisoning the well".
Your methods are simply a sad example of a how feeble mindedness
combined with arrogance creates that natural propaganda machine
that you clearly view yourself as heroically railing against.
But before you crucify yourself on your self indulgent cross of
sysiphusian self congratulation, may I point out that while Fox
News may be an outlet for poorly researched blue collar mental
masturbation, you do yourself no favors by attempting to refute
their position using the same type of convoluted reasoning that
barely befits some third rate backwater banana republic's efforts
to suppress pathetic shanty-town uprising with artillery strikes
and napalm.
If you attempting to assume the mantle of "reasoned interlocutor" I
suggest you make at least some effort to study your old college
textbooks on logic.
"""I still wonder when they will expand the definition of
"terrorist" to include gang members.""""
You're kidding, right? They are way ahead of you.
http://findarticles.com/p/articles/mi_qa3985/is_200502/ai_n13511358
I think it's a safe bet that they will use anti-terror laws for
anything they can put the word terror behind such as Narco-terror
and environmental-terror. Criminal-terror is right around the
corner. It's a way for the feds to expand their jursidiction.
iih:
I don't believe that speech was from the Mises Institute, but the
Future of Freedom Foundation.
Video is up on youtube, part one:
http://www.youtube.com/watch?v=t8QwTKKSvR8&feature=related
TrickyVic,
I agree, but OTOH the Earth Liberation Front types seem pretty
terroristical-flavored, don't they? And what about those Westboro
"Baptist" goons? The Klan did a pretty good job of terrorizing
people back when it had membership worth an inbred shit,
too...
Again, you have good points - the Feds don't need to be going
apeshit with the redefining of terrorism. But that doesn't mean
there are no terrorists at all.
"""But that doesn't mean there are no terrorists at
all."""
Who's making that claim?
small government (medicare drug benefit - biggest increase in government entitlement in 50 years)Federalism (no child left behind), skepticism about government power (Patriot act) - there are no longer any principals upon which the Republican party is based. President Bush has done more damage to republicans than Nixon.
Bush didn't do it without the help of other republicans. I say the republicans have done more damage to themselves today than when Nixon was in office.
Judge Nap is nothing short of heroic, in my eyes. The Patriot Act, and how to go about repealing it, should be the primary topic of discussion at every dinner table in America. Instead, the hot topic is American Idol. Good job, Mr. and Mrs. America. Thanks for nothing.
I'm so glad I can finally hear opinions critical of the Patriot
Act, et al without having to hear it juxtaposed with someone like
Dennis Kucinich calling for gun control and socialized medicine.
Maybe there is hope for this country after all.
By the way. President Paul shouldn't wait for an opening on the
Supreme Court to put Judge Napolitano to work restoring freedom.
He'd make a great Attorney General.
Actions speak louder than words, he plays his part exceptionally
well and profitably.
Anyway, he is 100% correct with sheep factor, great majority of
humanoids prefer to be or go trough life pretending to be one of
them.
Participation or lack of it in "electing" conservative-tyrant or
liberal-tyrant are proof of that.
Still it is sad to see even the illusion of "freedom and democracy"
(it was far better than previous Evil Empire) destroyed and
transformed from "the city on a shining hill" into new Evil
Empire.
Humanoids capacity and desire for destruction is far greater than
their capacity to live and enjoy laws of nature Judge talks about
as historical facts confirm.
Paul, maybe I'm wrong, but it doesn't look like anyone on this thread is committing any genetic fallacy. No one's reasoning from "Someone on Fox News said p" to "p is false". Instead, everyone's saying it's a shame that this guy saying true and important things is showing up only (or mainly) on Fox News.
The judge was doing quite well until he wandered off into
superstitious la-la land with "rights come from God."
Rights come from social norms. Social norms are encoded by
societies in various ways; ours by the constitution. The
constitution can be changed via amendment; this removes ALL
legitimacy from the "special needs" argument. If it actually
*needs* to be changed, there is a mechanism in place to do that.
Going around it is illegal. Either the government stays in line
with the constituting authority - which IS the constitution - or it
is operating in such a manner as to do whatever it wants to do
without regard to any force outside itself, which makes it a
dictatorship. No court has the authority to go "around" or give
permission to go around the constitution, because there is no basis
*whatsoever* for any such authority. The government argues that it
can ask itself - and make no mistake, the judiciary, congress and
the executive are a unified organism - for permission to do this or
that, and if it gets it, it can do it. That argument is entirely
specious.
The constitution is a document from the people that specifies what
in fact the government may do. When that document is ignored, the
government no longer serves the people, it serves its own
interests, which as we have seen and to our great regret, are not
collinear with those of he people.
Our population is so badly educated with regard to what makes our
government legitimate, so inculcated with cultural disease encoded
as "my country, right or wrong", "for the children", "we can't have
that", "for your own safety", all of which is topped with a
generous helping of blatant superstition, that it has little chance
to even understand these issues, much less react against
them.
The article mentions Ron Paul as if he could get something concrete
accomplished if elected. He could do a few (important) things in
foreign policy, and that's about where it ends. But what he *could*
do (domestically speaking) is from that bully pulpit, he could
educate our citizens. Read the constitution to them from the
fireside. Describe what has happened; why it is wrong. At which
point, I fully expect someone from another part of the government
to kill the man.
In the meantime, the great social contracts to take care of our
citizens as they get old, the chance to treat the health of our
citizens as if it was a matter of as great a consequence as
education and roads... these things will suffer greatly at the
hands of Paul if indeed he is able to convince enough
congresspeople and senators to destroy them. There is no free
lunch. As critical as the man might be to our constitutional
health, he's as dangerous as a pit viper to our actual
health.
So fellow citizens, don't go getting all optimistic. We face a
conundrum of massive and highly recalcitrant proportions.
Personally, I see little hope for any solution, much less an easy
one.
Dennis Kucinich DID read the Patriot Act and voted against it.
Others should have refused to vote unless and until they were given
time to read it.
How did Ron Paul vote on The Patriot Act? Senator Russ Feingold
voted against the Patriot Act as well, so there are some vigilant
elected representatives.
Impeachment is the short cut to the solution. Get Busholini and
Darth Cheney the hell out of there before they declare Martial law
and cancel the next elections.
Call it a pre-emptive strike for Democracy.
A good definition of an OXYMORON is when you say someone works
for Fox News and they are against Bush Policies in the same
sentenc.
Bob
Funny but as much as Napolitano whines about the Patriot act you
don't hear boo from him regarding how the IRS has been able to do
all these same sorts of actions almost since its inception...
Napolitano is either a boob or just another hypocrite who fed to
long at the taxpayer financed trough...
"Impeachment is the short cut to the solution. Get Busholini and
Darth Cheney the hell out of there before they declare Martial law
and cancel the next elections."
Good start, but we need to begin impeachment proceedings the day
our next President is elected...
Napolitano would make an excellent running mate for Ron Paul, or
perhaps the Attorney General.
Now, concerning the comment by Juandos...I think you need to read
more of the Judges writings before accosting the Napolitano...he
addresses many issues, even those about the taxation and the
IRS.
"In the meantime, the great social contracts to take care of our
citizens as they get old, the chance to treat the health of our
citizens as if it was a matter of as great a consequence as
education and roads... these things will suffer greatly at the
hands of Paul if indeed he is able to convince enough
congresspeople and senators to destroy them. There is no free
lunch. As critical as the man might be to our constitutional
health, he's as dangerous as a pit viper to our actual
health."
There is no social contract like this. Unless by social contract
you mean a contract which you made up. As far as roads and
education, the government does a terrible job with both.
Roads are not here to help the citizenry, as you put it. There are
far too many roads for that. Almost all private property is
surounded by roads and public property. Why? So that when you don't
pay your taxes, the government may drive up to your front door. If
we had half as may roads, we might have a safe, cheap, effective
infastructure, but that is not in the politician's interest.
As for education, the government does not provide education. What
little education that occurs while children become indoctrinated
and schooled is completly accidental and does not make up for the
harm the schooling individuals does to our country. Public
schooling is anethema to education and to a free democratic
republic.
I'm of the liberal camp. Of all the times that I've spied on FOX to see how their tacticians spin this or that subject, I cannot remember Napolitano saying anything remotely like what he recently said on CSPAN. Is FOX a sinking ship?
Some people have suggested the judge be a V.P. or Attorney General candidate. How about Supreme Court Justice if not Chief Justice? In terms of judicial nominations-Supreme Court or other-Democrat, Giuliani, fill in the blank other than Paul or Hunter, would mean the end of a free and independent America.
Napolitano is right, impeach the entire gov't for violating the
Constitution.
They violate the 1st Amendment by opening mail, caging
demonstrators and banning books like
America Deceived (book) from Amazon.
They violate the 2nd Amendment by confiscating guns during
Katrina.
They violate the 4th Amendment by conducting warrant-less
wiretaps.
They violate the 5th and 6th Amendment by suspending habeas
corpus.
They violate the 8th Amendment by torturing.
They violate the entire Constitution by starting 2 illegal wars
based on lies and on behalf of a foriegn gov't.
Support Dr. Ron Paul and save this great nation.
Our rights are NATURAL, not bequeathed by "social standards".
What part of "endowed by our Creator with certain inalienable
rights..." is so hard to understand?
People can be conditioned to believe their rights come from some
human source, but ultimately, no human power has the ability to
stop you from believing, speaking, or acting as you wish. All that
can be done is make the consequences unpleasant. In the Communist
era, there were thousands of Christians, Free Speech advocates, and
believers in natural liberties that were persecuted strenuously by
the State, but that persisted in their beliefs and actions. This
proves that rights are NATURAL, because we can exert them whenever
we wish, despite the penalties for doing so.
The main weapon against freedom is the elevation of ego structure
over spiritual structure. The threat of disappearing into the black
hole of a Gulag, and losing one's ego-structure, is enough to
prevent most people from exercising their freedom. But a person who
has been trained, either by themselves or by parents, to believe in
a spiritual identity that transcends the ego is immune from threats
to freedom. They will suffer all manner of abuse at the hands of
Government, and will not bow to their power.
Power is addictive because if one person opposes power, that
opposition renders power impotent. Power over 999 with opposition
from one is no power at all, hence power's impossible struggle
toward complete domination.
Let us all determine to be the one in opposition, for that will
ultimately destroy the power system that grows so cancerously in
this nation.
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