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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.