Americans: Sheep to the Constitutional Slaughter?

An Interview with Judge Andrew Napolitano

Brian Doherty | November 15, 2007

(Page 3 of 3)

This is more than an academic debate. If our rights come from government, then the Patriot Act is lawful and constitutional because the government that gives freedom can take it away just by having the president sign a bill into a law. But if rights come from our humanity, as I argue almost every day on Fox, then government cannot take freedom away absent due process and a fair trial, where you are charged and convicted of violating someone else’s freedom.

The president had said he believes in natural rights. Unfortunately when he signs these bills that take away our rights, he reveals he either doesn’t know what he’s doing or he doesn’t really believe in natural rights. The Patriot Act is not only unconstitutional, it’s unnatural, since it purports to take away that which naturally belongs to us.

reason: In chapter six, you discuss the very alarming “National Security and Homeland Security Presidential Directive 20/51” and the John Warner Defense Authorization Act of 2007. What’s so bad about them?

Napolitano: Those basically allow the president to declare martial law whenever he thinks there’s a state of emergency. Then he—he or she—can use the military to enforce ordinary criminal law and even suspend the authority of state criminal enforcement agencies. This is wildly, fantastically unconstitutional because it allows one human being by declaring emergency–like Pervez Musharraf just did—to suspend rights guaranteed by the Constitution, and Americans don’t even know; there was very little debate or awareness of this.

reason: I noticed that “he or she” in your previous statement. Have you made any headway with your Republican friends on the matter of, well, they might believe in this whole “war on terror” and trust Bush needs these extraconstitutional powers to protect us, but what about when a president they don’t trust wants to use them for goals they don’t believe in?

Napolitano: Bill O’Reilly defended Bush on his declaration of three Americans as enemy combatants, before the Supreme Court told him he can’t do it—and Bush refused to even say why—but Bill said “I trust him, it’s good for him to do that.”

I asked him, “Would you give that power to Hillary Clinton? She could declare you an enemy combatant and dispatch you to Guantanamo.” He just said, “Would you come and visit?” I said, “No….they’d keep me down there too!”

So many of my Fox colleagues, whom I love working with, have such trust and faith in the heart and head of President Bush. But look at the calendar: He’ll be Mr. Bush in 14 months, and unless it’s Ron Paul, God knows what his successor will do with the powers Congress had purported to give him. And I say “purported” because they don’t have the right to actually do all the extraconstitutional things they’ve done.

Senior Editor Brian Doherty ([e-mail]) is author of This is Burning Man and Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement.

Comments

iih|11.15.07 @ 12:41PM|#

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).

ed|11.15.07 @ 12:43PM|#

He has very nice hair.

iih|11.15.07 @ 12:49PM|#

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"). :-)

|11.15.07 @ 12:51PM|#

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.

iih|11.15.07 @ 12:54PM|#

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.

|11.15.07 @ 1:00PM|#

I think we know who Ron Paul's first Supreme Court nominee will be....

|11.15.07 @ 1:00PM|#

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.

Mike|11.15.07 @ 1:02PM|#

Judge Napolitano is a patriot and Ron Paul is a juggernaut...

http://truthalert.net/Republican%20Presidential%20Candidate%20Rankings.htm

ed|11.15.07 @ 1:05PM|#

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).

LarryA|11.15.07 @ 1:07PM|#

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]

|11.15.07 @ 1:10PM|#

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.

|11.15.07 @ 1:17PM|#

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.

|11.15.07 @ 1:26PM|#

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".

JBinMO|11.15.07 @ 1:29PM|#

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?

ed|11.15.07 @ 1:41PM|#

Brian Lamb is one of my few heroes.

Copy that. Unfiltered, unedited, no talking heads to tell you what to think.

rho|11.15.07 @ 1:45PM|#

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.

x,y|11.15.07 @ 1:46PM|#

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.

|11.15.07 @ 1:48PM|#

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.

|11.15.07 @ 2:01PM|#

Fox News needs more people like Judge Napolitano, not fewer. The same could probably be said for every other news channel.

|11.15.07 @ 2:01PM|#

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.

bill|11.15.07 @ 2:12PM|#

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"?

|11.15.07 @ 2:28PM|#

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.

|11.15.07 @ 2:31PM|#

ChrisO, I completely agree.

|11.15.07 @ 2:37PM|#

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.

R C Dean|11.15.07 @ 2:38PM|#

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.

|11.15.07 @ 2:59PM|#

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.

JBinMO|11.15.07 @ 3:34PM|#

I still wonder when they will expand the definition of "terrorist" to include gang members.

Billy O\'|11.15.07 @ 3:39PM|#

See. Fox news IS fair and balanced.

R C Dean|11.15.07 @ 4:39PM|#

Question for the Fox haters:

Has any broadcaster other than Fox given a hardcore civil libertarian like Napolitano so much airtime?

|11.15.07 @ 6:30PM|#

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.

Paul|11.15.07 @ 7:50PM|#

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.

|11.15.07 @ 9:19PM|#

"""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.

|11.15.07 @ 10:49PM|#

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

The Libertarian Guy|11.16.07 @ 12:04AM|#

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.

|11.16.07 @ 11:00AM|#

"""But that doesn't mean there are no terrorists at all."""

Who's making that claim?

|11.16.07 @ 1:03PM|#

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.

|11.16.07 @ 3:47PM|#

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.

|11.16.07 @ 8:05PM|#

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.

|11.16.07 @ 9:38PM|#

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.

subHuman|11.17.07 @ 5:30AM|#

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.

|11.17.07 @ 9:32PM|#

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.

Ben|11.17.07 @ 10:00PM|#

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.

|11.18.07 @ 1:35PM|#

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.

|11.18.07 @ 3:13PM|#

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

|11.19.07 @ 8:48PM|#

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...

The Libertarian Guy|11.21.07 @ 5:07PM|#

"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...

Republicae|11.21.07 @ 11:18PM|#

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.

|11.22.07 @ 3:09AM|#

"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.

Steve|11.22.07 @ 12:02PM|#

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?

|11.22.07 @ 5:15PM|#

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.

|11.28.07 @ 6:41AM|#

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.

|11.28.07 @ 11:50AM|#

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.