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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 (email@example.com) is author of This is Burning Man and Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement.