Spies in New Brunswick
Spies in New Brunswick
by
Andrew P. Napolitano
Recently
by Andrew P. Napolitano: What
If Democracy Is Bunk?
On June 2,
2009, a janitor in an office building in New Brunswick, N.J., noticed
what he thought was terrorist-related literature and sophisticated
surveillance equipment in an office he had been assigned to clean.
He told his boss, who called the local police, who notified the
FBI. Later in the day, the FBI and the New Brunswick police broke
into the office and discovered five men busily operating the equipment.
Four of the men were police officers from the New York City Police
Department (NYPD), and the fifth was a CIA agent.
The conundrum
faced by all of these public servants soon became apparent. Who
should arrest whom?
Should the
FBI agents and the local cops arrest the NYPD and the CIA agent
for violating the U.S. and New Jersey constitutions, both of which
prohibit searches and seizures without search warrants, and for
violating federal and New Jersey laws against wiretapping and surveillance?
Should the NYPD and the CIA agent arrest the FBI agents and the
local cops for breaking and entering and obstructing a governmental
function without a search warrant? Did the FBI and the local cops
even have a search warrant? Was the NYPD/CIA surveillance a lawful
governmental function?
No one at the
scene of this unique encounter was arrested. In return for not becoming
a defendant, everyone agreed not to become a complainant. The FBI
and the New Brunswick police went home, and the NYPD cops and their
CIA mentor went back to their surveillance – even though everyone
in that office had sworn the same oath to uphold the U.S. Constitution
and the laws written pursuant to it.
Among those
laws are the state statutes that limit the authority and jurisdiction
of local cops to the municipality that employs them, and the federal
statutes that limit the legal ability of CIA agents to steal secrets
only from foreigners outside the U.S. Stated differently, the NYPD
has no authority or jurisdiction to engage in surveillance in New
Jersey, and the CIA has no authority or jurisdiction to engage in
surveillance in the U.S.
Nevertheless,
we now know from the candid admissions last week of NYPD Commissioner
Raymond Kelly that the NYPD has been spying without search warrants
on Muslim groups in New Jersey and elsewhere for 10 years. Former
New Jersey acting governor and current state Sen. Richard Codey
recalls authorizing the NYPD – and not the CIA – to inspect railroads
and ferries that travel back and forth between New Jersey and New
York in 2005. He says he never authorized surveillance. No public
official in New Jersey has come forward to acknowledge awareness
of all this, and Kelly says the spying will continue. But he needs
a search warrant.
Can the police
spy on us? Only if they have probable cause to believe that criminal
behavior is taking place and a search warrant signed by a judge.
Short of probable cause about the very persons on whom they are
spying, not about a group to which those persons belong by birth
or by choice, the police may not lawfully spy, and judges will not
sign search warrants without specific probable cause about specific
persons. The specificity is required by the language of the Fourth
Amendment. That language also guarantees that quintessentially American
right – the right to be left alone – by establishing articulable
suspicion as the linchpin of all police pursuit of anyone for anything,
and probable cause as the trigger for search warrants.
Can the police
choose a target upon whom to spy based on the target’s religion?
No. The courts have been clear that under no circumstances may religion
lawfully be the sole or even the principal basis for surveillance.
That’s how World War II got started: German police targeted Jews
because they were Jews, and for no legitimate law enforcement purpose
and without probable cause.
Was the New
Brunswick operation criminal? Yes, it was. It’s not too late to
charge the NYPD officers or the CIA agent in state or federal court
for spying. It’s also not too late to charge the FBI agents and
the New Brunswick cops in state or federal court for failing to
obtain a search warrant (if they didn’t have one), and for malfeasance
in office by not arresting the spies.
The sacrifice
of liberty for safety is illusory. The liberty lost does not return.
The safety gained is not real. Who in New Jersey voluntarily gave
up his liberty? Who can feel safe or free with government agents
secretly and unlawfully monitoring them? What is the reliability
and vitality of constitutional guarantees if those in whose hands
we repose them actively violate them? What religious group might
law enforcement target next? How dangerous to personal freedom is
a cabal of law enforcement when it looks the other way to avoid
prosecuting its own?
Reprinted
with the author’s permission.
March 1, 2012
Andrew P. Napolitano
[send him mail],
a former judge of the Superior Court of New Jersey, is the senior
judicial analyst at the Fox News Channel, and the host of “FreedomWatchâ€
on the Fox Business Network. His latest book is It
is Dangerous to be Right When the Government is Wrong: The Case for
Personal Freedom.
Copyright
© 2012 Andrew P. Napolitano