Liberty, Safety and the Constitution
30. Jul, 2009 
20 Comments
by Judge Andrew Napolitano, LewRockwell.com
For a professor of law at one of the country’s best law schools who was once the go-to guy in the Justice Department whenever the Bush White House needed legal cover for its truly lawless ventures outside the Constitution, John Yoo has revealed a breathtaking ignorance of American values, history, and jurisprudence.
In his startling mea culpa, published in the Wall Street Journal recently, Professor Yoo confessed to advising President Bush that he possessed powers from some source other than the Constitution, that in the name of public safety he could cut down all laws written for the express purpose of restraining the President, and that Americans would expect no less than this so long as they were actually kept safe as a result of it.
He advanced the argument that since the President’s first job is to keep us safe, he could disregard the 1978 FISA law as “obsolete” since it was written in an era when modern day non-state terrorism was not contemplated. By this unprecedented and perverse logic, one wonders if the President was told if he could disregard as obsolete any law that was inconvenient to his purposes; even the Supreme Law of the Land itself, which the Constitution declares itself to be.
The whole purpose of FISA was to abolish the Nixonian notion that “If the President does it, it’s not illegal.” While FISA’s statutory reduction of the constitutionally-mandated standard for obtaining a judicial search warrant – from probable cause of crime to probable cause of foreign status – is itself of dubious constitutionality, nevertheless, it is and was at the time Professor Yoo was telling President Bush to disregard it, the “exclusive” lawful means for agents of the President to wiretap foreign persons present in the U.S. Moreover, the FISA court has become the President’s rubber stamp by granting well over 99% of requested warrants.
It is not painless for one who loathes this law to defend it; but it was among the laws that the President and the Professor swore to uphold, it does force the executive branch to identify and specify who and what it wishes to pursue, and it presents at least a minimum of checking and balancing by forcing the President to go before a super-secret court (without an adversary present) and seek permission to violate the Fourth Amendment-guaranteed rights of the President’s targets.
The time-is-of-the essence argument is nonsense. I once issued a search warrant in my gym shorts from my living room at 3 am, and I know of a former FISA court judge who did the same from his cell phone while riding a motorcycle. While neither of these situations is optimal, there are at least written records of what was done to whom and why; and that was a goal of the law which President Bush was told was obsolete.
The Framers never contemplated FISA, and I cannot conceive of Jefferson, Madison, or even Hamilton condoning it. But one thing we know the Framers would never condone is a government that refused to reside within the Constitution; “chained down” by it as Jefferson once said.
The Founders, unlike John Yoo and George Bush, feared a king who enforced only the laws he found convenient to his present needs, who dispatched his agents with their own self-generated search warrants to knock on any door and seize any thing they or the king wanted, and who claimed to be doing all this for safety’s sake.
Cutting down the laws to get at the Devil is dangerous business. As Robert Bolt argued in A Man for All Seasons, the land is planted thick with laws. If you cut them down to get to the Devil, who could stand the wind that then would blow?
When President Lincoln and the Radical Republicans tried civilians in military tribunals in the North, hundreds of miles from battle, and in the South after the Civil War had ended, a unanimous Supreme Court stopped them. It declared that “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”
President Bush argued frequently and forcefully that his first job was to keep us safe. He was wrong. The Constitution tells us that his sole job was to enforce the Constitution; and that means keeping us free. Free from tyrants who sought and claimed power from thin air; free from prince-like federal agents who could behave without constitutional or legal restraint; free to live with a government that obeyed its own laws. Any president who keeps us safe but unfree is rejecting his oath to the American people.
Andrew P. Napolitano [send him mail], who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.
Copyright © 2009 Andrew P. Napolitano
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I am terrified of my government and especially the sheer terror most police evoke when they can arbitrarily stop you for no cause, treat you like a second-class citizen and verbally berate you, and then gladly taze you with impunity for looking at them the wrong way. Hell, you might even get shot dead for no good reason and the cop would only get some administrative leave.
The executive branch has declared itself above the laws, and above the people, we are told that the role is reversed, and we must comply with their demands… or else.
Before the constitution, we had the Declaration of Independence. Read it again and you’ll see that this same mentality on the part of King George III and his police/military class, and their treatment of everyone else as subjects/second-class citizens. British troops also had a nasty policy of protecting their own over the claims of the lowly subjects.
At least George III had the honesty to say he didn’t care what the peasants wanted, he didn’t answer to them. What’s infuriating is that we have two-faced executive figureheads that pretend to listen and care about what grievances the people have, then promptly put on a show investigation for the cameras while the cop is given a paid vacation. Once the heat and noise clear, they once again protect their own and propagandize the police terror tactics as essential. Don’t fall for that bullshit.
Ideally bad cops would be fired and made examples of what is unacceptable, instead the message is loud and clear that the line between ruler and ruled is where ever they want it to be.
This is the result of ignoring the strict rules of the constitution for far too long. I’m just glad to see that there’s so many people that are saying enough is enough!
Not to be unkind to the judge, but isn’t providing talking points cover for Fox
incompatible with the search for truth.
Ken, do you usually post ad hominem attacks? If you’re concerned with the man, rather than the message the Bush, Yoo and the rest were destroying the constitution, you might want to look for video of the Judge – on FOX TV – saying that Bush should be indicted.
Or, maybe one of his books, which slammed the Bush administration repeatedly while they were in office.
If the person, rather than this excellent article, is your concern, you’re actually attacking the wrong guy. The Judge has been speaking out against these things for years.
EITHER WE ARE A NATION OF LAWS,
OR WE ARE NOT.
It’s as simple as that.
Terror of a different kind laid upon the people of America by these wily polititians with misanthropic agendas. Dark intentions hidden in the name of “security” Security has become the byword for stepping on the Constitution, avoiding laws and ripping off the public by those calling themselves,”Public Servents.” Serving the public is as far from what they do as oil derricks from space craft.
Devious and cunning they manipulate and control the media until we are all misguided… Slumbering Americans less apathetic than day dreaming through existance thinking we know whats up, yet blinded by the planned charade called insider DC.
By a coincidence, I finished rereading Sinclair Lewis’ novel, “It Can’t Happen Here,” written in 1935. Believe me, it is. Last week, I dug out my copy of London’s “The Iron Heel,” and saw the future if we don’t move fast to reverse this corporatist takeover.
In Iron Heel, the protagonist, who is a socialist, debates with a roomful of CEO’s and magnates. When he finishes telling them that the people want a share of the wealth and power, want to live decent lives, and if it is not willingly shared, the people will take it, the spokesman for the magnates tells him that they (the magnates) want power. Wealth is power and they will take and keep the wealth. He tells him, “We own the government, federal, state and local, we control the military and the police and we control the courts. If you try to move against us in any way, we will crush you as though you had never been.” [That's paraphrased, I don't have the book before me.] Finally, the people, starving and homeless, rebel and are slaughtered, most of the survivors put into concentration camps as a lesson to any others who would try to get in the way of industrial power and control. The nation is a nation of quislings and spies. Nobody can trust anyone else, for they don’t know who may be a double agent.
Look at the way we are going today! Government spies and undercover operatives, agents provocateur to turn any demonstration violent to bring in the police and swat teams, Posse comitatus revoked and NorthCom training combat brigades in the suppression of civil dissent. The KBR, no-bid, concentration camps awaiting guests.
The misnamed Patriot Act, the Military Commissions Act, the Homegrown Terrorist Act, voted almost unanimously in Congress (1 nay) and now working its way through the Senate. That could make even an article like the above and a comment like this used to make us all Homegrown Terrorists and liable to arrest and indefinite detention, no trial, just disappeared!
What is left of the wealth of the nation has been given to the banksters and the cartels, with no oversight. We the People get nothing but debt for generations, joblessness, inflation, foreclosures. By this winter there may well be a hundred million people living in the streets, begging food for their families, living under cardboard in alleys.
Yes, there is supposed to be change in the Obamanation and there is change. He is becoming a Bush in Jackboots; just another tool of the Oligarchy of obscenely powerful and wealthy that owns and runs this country and much of the rest of the world.
Jefferson said, “The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”
He also said, “I believe that banking institutions are more dangerous to our liberties than standing armies. If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around the banks will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered.”
He also warned that, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”
For the past few decades, we have watched the chains of the Constitution cut, link by link, to unleash the criminality of the government.
Two other quotes from earlier experts on government and control:
“If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”
Joseph Goebbels, 29 October 1897 – 1 May 1945
And;
“Naturally the common people don’t want war: Neither in Russia, nor in England, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same for any country.”
Herman Goering to Gustave Gilbert at Nuremberg, 18 April, 1946
Look at the lies and propaganda and violations of the Constitution that is going on by the minions of our government and you tell me; Is our alleged government listening to Jefferson or Goebbels, Hitler and Stalin?
The populace in/under terror…hhhmmm. Saw the movie V with Natalie Portman, again, the other night. A line from the movie was the people should not fear the government, the government should fear the people. If you haven’t seen it I would reccomend the watching of it even an evening with friends.
Anyway, the topic at hand we the sheeople allowing government to continue to do anything they want with no boundaries (ie the Constitution) Hey George told us it is just an old piece of paper and Obama voted for retro active immunity while Senator from Illinois(also illegal according to the Constitution) So folks are you living under the Common Laws of the US Constitution or the UCC (Universal Commercial Code) you might want to find out because they are vastly different rules to the game.
Do we the sheeople still have and are we able to make use of our God given rights accordingly stated within the US Constitution, or has there been an unannounced coup d etat. Because, if we are not living under the US Constitution any longer then by what right do they rule? And if we are still living under the auspices of the US Constitution then by what right do they not prosecute these Constitutional law breakers? And why do we the sheeople continue to go along with them, aren’t they supposed to be US??
Excellent article and very informed comments. Our Government grows more powerful daily as each link of the Constitution is severed. Has the clock struck midnight already? Or is there still some little time to take back our country from the Oligarchy?
Judge Andrew: YES!!! I believe the first pres George Washington and his friend Hamilton and you and me share the same view. THANKS!
I have been wondering when and who would begin to see the real ‘POLITIKA’ in Washington DC.
We must start now and along the way we must reinstall the requirement of learning and passing the educational standards of learning our constitution and what it means, how it came about and most importantly WHY our forefathers were willing to die to construct it for FREEDOM!!, EQUALITY and JUSTICE for ALL…This is the belief and the standard for all Americans. We must be willing to do it all over again….as it has been said the people shall need to be prepaired to fight with all avalilable assets to ward off the TYRANNICAL GOVERNMENT that will ensue should we ever become complacent, lazy or too preoccupied to see the dismantling of our Freedom, our Liberty and our right to pursue our choice of goals, religion, education and the right to voice our beliefs as well as our opinion without retaliation or fear of reprisal….This is your proverbial Wake up call AMERICA!!!!
The judge is on the money, however as long as the Corporatists and the Liberals are controled by millions of big business dollars, things will only get worse.
Hell, even Non Profit Terrorists orgs accept Visa and Paypal, Change America by changing how the banks around the world do business!!!!!!!!!!
The US Army regards itself, as prior to, and therefore outside the US Constitution. That Washington himself did not share this view, of the Army as the author, vehicle and guarantor of our liberties, does not mean it is not widely held and widely believed. A successful Revolution likely allowed such a view to take hold, and I wish Judge Napolitano would address it. It is the unacknowledged source of the power John Yoo claimed for the president, as commander-in-chief.
Shut up and shoot. There’s a time for talking and a time for taking lives. Stop paying lip service and do something. If all you wannabe’s and cry babies think you can do better then get off your soft spoiled asses and do it. I don’t need to hear what isn’t. I can see that for myself and do not need your narration. I wanna hear “and see” what your gonna “DO” about it. Thats “DO” not “TALK”. Are you going to run for office as a libertarian or true conservative republican (you’ll never get there support)?Are you atleast going to run for some small office locally such as Alderman, Clerk, Mayor or anything? Aside from blood shed how else do you propose we chang the way this country around? I want real ideas not just some wimpering snot nosed runts complaining about the price of gas or how much is being spent on bailouts! How about this for a start How can we go about prosecuting Bush Jr. He’s no longer protected by immunity and I don’t think in our current economic status the government would justify spending enourmous sums defending him. Theres just no value in it for them.
Mike S – whether or not you’re using a euphemism, there is no place, whatsoever, for talk about taking other people’s live on this website. Calls for violence are not acceptable.
period.
Disgraceful! Fear has and will always be used to the advantage of those in power. Unfortunately there aren’t too many critical thinkers. America has indeed been dumbed down…
Say, Ole Hunter. You mean as long as “the corporatists” PERIOD, are controlled by millions (actually its billions) of business dollars, nothing will change. Its not an elected party issue, as BOTH parties are in the hip pockets of the the investment bankers, day traders, and other elitists. Thats just to distract us from the mega truth of the insatiable power grab being perpetrated against all of us.
Also, Steve Osborn, I wish EVERYONE was as well informed as you are! I just downloaded the Rommel quote from the “Illuminatti News” last week. How profound! Great post!
We the People…
I just hope that the “American Spirit” (the People, the Union, the Colorful Fabric) remains strong and bounces back in a positive manner and will again reinforce and protect the liberty, justice, and the pursuit of happiness that is our guarantee within the Constitution!
Protect our future by ending the war mentality.
Peace,
H.
In my opinion, freedom lovers need to stop making specific arguements against all the various intrusions upon our privacy done in the name of keeping us safe.
It will make our point far better if we use only the following reply: Build the monitoring network for the worst dictatorship in the history of the earth, and the dictator will come.
Like germs in our bodies, all countries are full of little statists who will ignore federal office so long as it is relatively powerless. They will still want absolute power, but they will see high political office as a bridge too far. Hillary and Cheney would probably not have bothered with political office, if we still had the level of federal government that existed in 1820. Hillary? Cheney, Yoo? Obama? They are amateurs – small potatoes. Just keep adding more control power to the government, and we will soon have a master megalomaniac stepping on our necks.