12/03/15 – Andrew Napolitano – The Scott Horton Show

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All right, you guys, welcome back to the show.
Yeah, I went over time with Phil Giraldi there into the break.
You'll have to check the archives to hear the very end of that one.
Up next, it's Judge Napolitano, formerly a judge of the Superior Court of New Jersey and, of course, senior judicial analyst at Fox News.
Welcome back to the show, Judge.
How are you?
Nice to be with you, Scott.
Thank you.
Thanks for having me on, my friend.
Very happy to have you here, and this piece is very important.
I would direct everyone to it.
We're running it on AntiWar.com.
Of course, the spies who ruin us.
And you start the article here with the Patriot Act, and I really appreciate the fact that you start with the history of the Patriot Act and exactly the circumstances under which it was passed, not just in reaction to September 11th, but what actually was going on on Capitol Hill at the time.
So could you please remind them, especially for the young who might have missed it?
Well, the language in the Patriot Act was so devastating to the Constitution that the Bush administration, which had prepared this, gave the members of the House of Representatives 15 minutes to read it.
Now, it's 315 pages long, so no one could really read it in that time period.
I've read it three times.
It takes about 20 hours to read.
Not that I'm a slow reader, but it doesn't read like a novel because it essentially amends many other statutes.
So in order to read the Patriot Act thoroughly and to understand it completely, one needs to have the entire United States criminal code in front of one and continually open up other books and see what's been amended.
The bottom line is, no one except a few members of the Republican House leadership had actually read this thing when they voted for it, and no one realized that there was language in there which would permit the NSA, the National Security Agency, our domestic spies, to persuade the secret FISA court to authorize the bulk collection of undifferentiated data, a fancy phrase for everybody's emails in real time and everybody's texting and everybody's phone calls in real time, including members of Congress.
It wasn't really until Edward Snowden's courageous revelations that members of Congress themselves realized that they had been victimized by it.
Now, when the executive spies on the people, that's one problem.
When the executive spies on the legislative branch, that raises a host of other problems.
Bottom line is, we learned 12 years after the Patriot Act was enacted exactly what the government was using it for, and none of it was constitutional.
There was no debate permitted on the floor of the House of Representatives.
The Senate had limited debate.
The only senator who acknowledged the reddit Paul Wellstone is now deceased.
All right, but I'm not sure who it was that coined, and boy, it'll be used until the end of time, the Constitution is not a suicide pact, Judge, and you would leave us helpless before the terrorists.
I can tell you exactly who coined that.
That is the favorite phrase of the sort of neocon big government.
We have to realign our foreign countries using the military crowd in both parties, but mainly in the Republican Party.
That phrase itself was in a dissent, not in a majority opinion, in a dissent by Justice Robert Jackson in a case in 1949 in which a mob descended upon a Catholic priest because he had given an anti-war speech that the mob didn't like.
Instead of prosecuting the mob that descended upon him, they prosecuted the priest.
And the Supreme Court threw out his conviction, and Justice Jackson was unhappy with that and argued that in difficult times the government should be able to repress speech.
That is not the law in the United States of America.
It hasn't been the law in the United States of America, and whenever anyone from Abraham Lincoln to Woodrow Wilson to Franklin Roosevelt to George W. Bush has attempted to do that, they were rebuked by justices whom they appointed on the Supreme Court at that time.
Okay, but still, the reason they got away with this is because at least 150 million people were willing to believe, and maybe correctly, that they're doing this because they mean well, or else why would they be doing it?
They think it's necessary to protect us in times of change since the 1870s, etc.
Yes, you're right.
The American public, God has fallen for the charade that when we give up our liberties, we are somehow made safer by it.
That the less freedom of speech we have, the less right to travel we have, the less right to privacy that we have makes the government strong enough to protect us, and of course it doesn't.
I mean, the government's first job is to keep – well, the government has two jobs, to keep us free and keep us safe.
If it keeps us safe but not free, it's not doing its job.
But when it spies on everyone, it can't even keep us safe because it is data overload.
It is far too much information for the government to sift through.
Look at the tragedies in Paris a couple of weeks ago.
The French government has even more ability to listen to phone calls and to capture text messages and emails in real time than the American government does.
Did they catch these guys?
No.
The NSA spies on the French and it spies on the French government.
Did they catch it?
No.
Because they're all capturing too much information.
The beauty of the Fourth Amendment is it's bilateral.
One side of the Fourth Amendment keeps the government out of the private affairs of people as to whom and about whom it has no suspicion at all.
The other side of the Fourth Amendment requires the government to focus on the bad people.
Both of those things, if followed properly, will keep us safe and will keep us free.
But the government has persuaded the majority of Americans to engage in this diabolic trade.
Hey, give me your liberty and I will keep you safe.
It doesn't keep us safe.
And once we surrender our liberties, they rarely come back.
That's the lesson that we should learn.
And that's the lesson that I attempted to generate with this piece that you're kind enough to discuss with me now.
Well, and I think you made reference before to where even the author, Sensenbrenner, had said he never meant for Section 215 to legalize what the executive branch secretly claimed it legalized, which was the tapping of, well, not all of our phones, but basically the tapping of all of our communications in the sense of the metadata and who all is communicating with who on this massive scale.
But on the other hand, they always say that.
So can you explain anything more about what they've been doing with these expanded powers?
Are there examples of things that would have people concerned about what's going on?
Well, the section in the Patriot Act on which the government has relied to persuade the FISA court to authorize these incredible search warrants.
I mean, the first search warrant, Scott, that Edward Snowden revealed was a simple two-page document signed by a federal judge, normally signed in Florida, but sitting in the FISA court in D.C., which directed Verizon to submit the telephone records it has of all of its customers.
Now, that seems like a lot.
It's an overwhelming amount.
At the time the order was signed, Verizon had 110 million customers, and they had 155 million phones.
So without identifying the person or place they were interested in, which is what the Constitution requires, and without presenting any evidence of probable cause, a level of evidence which raises serious suspicion about a person or a place, these federal judges signed these orders and gave enormous amounts of information to the government.
The same argument was made by the NSA to allow it to look at banking records, legal records, credit card records, and monthly utility bills.
Now, what business is it of the government to have all of that?
Some people would say, I have nothing to hide.
I have nothing to be afraid of.
I'm an open book.
The government can look at anything they want.
Well, they can surrender their own privacy.
I can surrender mine, but I can't surrender yours.
Privacy is a personal, individual right.
It's not subject to interference by the majority.
It can't be surrendered by anybody else.
It's a matter of personal dignity.
It's the reason we fought many of our wars, is to keep governments away from us that did to foreigners in foreign countries what we fought against them for and which our own government is doing to us now.
So when they learned that they were themselves being spied on, Congress said, well, we want this section to expire to Section 215.
All right, I'm sorry, Judge.
Hold it right there.
That's a great place to pick it up on the other side of this break.
We'll be right back, y'all, with Judge Napolitano from Fox.
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All right, kiddos, welcome back.
I'm Scott Horton.
It's my show, Scott Horton Show, wrapping up for the day with Judge Napolitano from Fox News.
And we're talking about the circumstances under which the Patriot Act was passed and some of the horribleness in it and how the government took it even further than what the Patriot Act actually said they could do.
Let me summarize where we were because I have to run down into a studio in just a few minutes.
Okay, sure.
No problem.
Go ahead.
The language in the Patriot Act, which permitted or on which the government based its we'll spy on everybody all the time ideas, has been invalidated by a half dozen courts.
The language in the – because the courts have found that, in fact, Congress never intended all the spying.
The language in the Freedom Act is very clear and crisp and precise in which Congress does authorize all the spying.
So the Freedom Act is actually worse than the Patriot Act because the argument that plaintiffs made, Congress never intended all the spying, is now out the door.
That's issue number one.
Issue number two is both laws bypassed the Constitution's requirement of probable cause, a level of evidence, meaning it is more likely than not that someone has committed a crime and the police or the government needs to know about it, and instead substituted a made-up standard called governmental need.
Governmental need is no standard at all because the government will always claim it needs what it wants.
And yet the Foreign Intelligence Surveillance Court, the secret court in Washington, D.C., created by the FISA Act, the friend of the NSA that has granted 99.9996% of all NSA applications, has bought this nonsense.
So bottom line is we are far worse today under the Freedom Act.
I hate using these names because there's nothing free about it than we were under the Patriot Act.
And I expect that you'll see a lot of challenges to this law, and I expect the law will be invalidated.
In the meantime, millions of Americans will lose their privacy to federal agents in ways that the Constitution never intended or authorized.
And then, I'm sorry, I don't know how much time you have, but could you tell us real quick?
I have about a minute.
One minute, okay.
Could you speak real quickly about the latest news about the national security letters and how they're being used as third-party doctrine where all business records are up for grabs?
Well, the Patriot Act permits federal agents to write their own search warrants.
It doesn't call them search warrants.
It calls them national security letters.
But it's basically a search warrant in which one FBI agent authorizes another FBI agent to search and seize any business record that he wants.
That profoundly violates the Fourth Amendment as well.
That's been going on since 2001.
Every time it's been challenged in court, every single time, the courts have found it unconstitutional, and the government has not appealed those findings because it's worried that those cases will eventually get to the Supreme Court of the United States.
It just keeps moving on, moving forward, and following the statute that six judges have attempted to invalidate.
All right.
It's a very bad, very, very bad state of affairs.
I write these columns because people need to know what the government is doing in their name to trash the Constitution.
Scott, I've enjoyed my time with you.
I'm sorry I must run, but I've got to get down to a studio, and I'm running out of time in which to do so.
Sure thing.
Appreciate it, Judge.
All the best.
All right, so that's Judge Knapp, the great Judge Napolitano from Fox News.
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