Tools of Tyranny
Tools of Tyranny
A transcript of the Lew Rockwell Show episode 280
with Andrew Napolitano
Recently
by Andrew P. Napolitano: Government
Spying Out of Control
ROCKWELL:
Good morning. This is the Lew Rockwell Show. And how great it is,
in fact, what an honor it is to have as our guest today, Judge Andrew
P. Napolitano. Judge Napolitano is FOX News Channel’s senior judicial
analyst, where he provides daily analysis for not only FOX News
but for FOX Business. And I might say, by far, the most interesting
and correct person on FOX. Whenever you get to the judge, it’s like
a bright light comes on in the studio and there’s something very
different.
He’s a New
York Times best-selling author of six books, all of which we’ll
link to, of course, on this podcast page. The most recent of which,
which I highly recommend, as I do all his books, It
Is Dangerous to be Right When the Government is Wrong: The Case
for Personal Freedom.
So, Judge,
you’re the great champion of many things, but I think we’ll talk
today, if it’s acceptable to you, about civil liberties and what
the heck is happening. How have we gotten the police state seemingly
overnight? How is it possible that the government, without anybody
but you and Ron Paul and a few other heroes objecting to it, that
the government feels free to have drones looking into our homes
and our backyards? It’s not even a controversial matter seemingly.
NAPOLITANO:
Well, first of all, thank you for the gracious introduction, Lew.
You and I have been ideological compatriots for a long time, and
it’s a joy to be interviewed by you in this venue, or any, for that
matter. I love your work. I admire it. I praise it. And it’s no
secret why you have one of the most listened-to podcasts and “clicked
onto,” if I can use that phrase, website in all the world of freedom.
I think that,
to get to your question, the government and the media and the establishment
has persuaded people that safety is a greater virtue than liberty.
You know, it’s an age-old battle between the two. We all know Ben
Franklin’s famous one-liner that those who would trade safety for
liberty will end up with neither. And it’s basically true.
And when the
government fights wars, it persuades us that the wars are being
fought to keep us safe and, therefore, it needs more tax dollars,
and we are entitled to less freedom. So we look the other way while
the government extracts more money from us and takes freedom away
from us. And then when the war is over, bingo, the money doesn’t
come back and the freedom doesn’t come back.
The great Robert
Higgs, a colleague of ours in the freedom movement, has written
a masterpiece called, Crisis
and Leviathan. And he traces the increase of government
and the loss of liberty from crisis to crisis to crisis, starting
with the Revolutionary era, and I think his book concludes at the
time of the Vietnam War.
So it is a
well-established and irrefutable phenomenon that when people are
afraid, they will seek safety rather than freedom. And it is also
a phenomenon and not an unknown human characteristic that when people
give up freedom, and the government has more power, those who run
the government will keep the power. We’re seeing that today.
You know, I
caused a brouhaha the other day when I suggested that the government
would have a difficult time persuading a jury to convict a person
who decided to shoot down a drone that was in his backyard watching
what was going on in the yard and looking inside the house. I’m
not suggesting that anybody should do that because, as a lawyer,
I’m not permitted to advocate for violence. If I do so, I do so
at the peril of the loss of my license to practice law. And I don’t
want that to happen. So I’m not suggesting that.
But by suggesting
that Americans might take things into their own hands and jurors
might agree with them, it caused a big brouhaha on the left, and
even among some Republican office holders, because they believe
that the government is always right. And why would they dispatch
the drones? They’re to keep us safe. At some point, enough is enough.
I kiddingly
said to my producer this morning, what do you think Thomas Jefferson
would have done –
(Laughter)
– if George
III had dispatched a drone to the back of Monticello to look in
the bedroom? I don’t think he would have taken it lying down.
(Laughter)
ROCKWELL:
That was a great moment when you suggested that. And, of course,
it seems like we’re almost living in a dystopian novel. Some people,
of course, in the government, want to have armed drones spying on
your backyard or whatever.
NAPOLITANO:
I don’t want to play on your and my age and generation, but do you
remember that old black-and-white television program called The
Prisoner, and it starred Patrick McGoohan? And it was a
British black-and-white sort of Orwellian show in which the government
dispatched a big blog after you, and it could go through walls and
consume cars and catch you wherever you went. And, of course, when
it came out, it was considered science fiction and this could never
happen, because a free people would never tolerate it, and this
technology could never exist. We practically have that now.
You talk about
drones with guns. I mean, the president has used drones with missiles
to kill Americans in another country. And his idiotic attorney general
argued in a speech at Northwestern Law School not too long ago that
the president’s careful consideration of whom to kill and the surgical
use of the drones was a sort of substitute due process. Of course,
no court has ever ruled that way. There’s no such thing as a substitute
due process.
I’m not a fan
of Anwar al-Awlaki, but he was born in New Mexico, and when he was
murdered by the president’s drones, he wasn’t even charged with
a crime. So it’s not like he was a prisoner on the lam and was about
to kill somebody else. He was an American living in Yemen, exercising
freedom of speech, and they blew him away, along with his American
companion and his 16-year-old American son. So these drones can
be equipped for lethal uses.
In my column
this week, I postulate, not fancifully, how long will it be before
they’re used for legal purposes here in the U.S., when the president’s
men – because his national security advisor made a similar argument
to his attorney general – make these kinds of unconstitutional
arguments.
ROCKWELL:
And, in fact, just recently, the so-called defense secretary, the
war secretary, made the argument that the president not only doesn’t
need Congress’ approval to start a war, he can overrule Congress
if he thinks a war is needed because only he has special knowledge.
And we have a recent editorial in the Wall Street Journal
saying, scolding anybody who thinks that any of these things should
be looked at askance, because if the government says somebody is
a terrorist, they are a terrorist. They should have no protections.
People shouldn’t even criticize what’s going on. They should just
cheer it.
NAPOLITANO:
You know, Lincoln did a lot of horrible things during the Civil
War and, as a result of much of what he did, it is now estimated
that about 750,000 Americans lost their lives. But one of the things
that he did was to incarcerate people without trial. He suspended
the writ of habeas corpus.
And in a famous
decision after Lincoln was dead, the Supreme Court, half of which
he had appointed, said the Constitution applies in good times and
in bad, for rulers and for ruled, for those in office and those
who are not in office, for Americans and for non-Americans. There
is no exception to its protections for bad times.
How easily
those who love and praise Lincoln seem to forget this rebuke by
his own Supreme Court. It’s a famous case – anybody can read it
– called In Re Milligan, which stands for the proposition that
there is no exception to the Constitution. It protects all persons
who come in contract with the government, whether they’re Americans
in Yemen or Americans in Yosemite. But the government doesn’t like
to follow these rules that are obstacles to its totalitarian ways.
ROCKWELL:
Under Lincoln, there were actually people arrested and jailed without
trial for the crime of being present when Lincoln’s policies were
criticized and not defending them.
NAPOLITANO:
Right. Right. He, of course, jailed newspaper publishers who disagreed
with him. But this jailing people who failed to defend him, of course,
was absurd. I mean, he was a tyrant and a dictator.
But not to
dwell too much on history, he was severely and soundly and roundly
rebuked by this In Re Milligan decision, which, of course, resulted
in freeing thousands of people who were still in jail in 1866, a
year after Lincoln had died and a year after the peace had come
to pass between the North and the South. These people were still
in jail. This is the Andrew Johnson administration now before the
Supreme Court that Lincoln had appointed.
So, look, it
demonstrates the point that, on paper, judges have steadfastly ruled
that the Constitution applies to every human being who comes in
contact with the government under every circumstance. But in reality,
when the government scares the daylights out of people with the
drumbeats of war, as we saw during the Bush administration, George
W. Bush, and as we see presently under President Obama, then people
in the government, and even good people not in the government have
a tendency to look the other way when freedom is diminished.
This is a long-winded
answer to your brilliant first question to me.
(Laughter)
ROCKWELL:
No, a great answer. And so, we also have to worry about agent provocateurs.
A lot of these so-called terrorist incidents under the Obama administration,
at least, have involved people who were talked into something by
an FBI agent or an FBI asset and then arrested when they go ahead
and do what they’re saying.
NAPOLITANO:
Only in America can the government boast about prosecuting someone
that it talked into breaking the law, and did so in such a sterile
environment that would have been against the laws of physics for
the person to have succeeded in breaking the law. So essentially,
they find some idiot. They plant an evil thought into his brain,
and then prosecute him for committing a thought crime. Because,
as I said, they do it in a control environment in which he couldn’t
possibly do what they think he thinks he’s about to do. This doesn’t
keep anybody safe. All it does is waste money, put idiots in jail.
And it’s actually counterproductive because it creates the false
illusion that the government is keeping us safe.
ROCKWELL:
So have they been caught in a related case in Fast and Furious,
or is anybody paying attention to this horrendous example of the
sorts of things that the government is doing?
NAPOLITANO:
Well, I mean, those of us who do this for a living do our best,
you and I and a lot of our colleagues, to expose this stuff. But
the government’s behavior is reprehensible.
I mean, yesterday,
the director of the FBI acknowledged that the FBI is going to investigate
JPMorgan Chase for losing its own money, not –
(Laughter)
– the customer’s
money, not the taxpayer’s money –
(Laughter)
– but its
own money. It won’t investigate the attorney general because of
Fast and Furious, but it will investigate JPMorgan Chase for losing
its own money.
You know what?
If JPMorgan Chase lost $2 billion, these people forget that there
are two sides to every transaction. Somebody earned $2 billion.
Good for them!
(Laughter)
You can’t make
this stuff up. I mean, I know we enjoy discussing it. My favorite
reading of the week is LewRockwell.com. As I’ve told you and others,
I have my assistant print it and I read it in one sitting on old-fashioned
pieces of paper rather than on the compute screen. And it’s a great
reminder that there are freedom lovers out there. And it’s good,
as St. Thomas More reminded us, at the moment of his execution,
to have a sense of humor, otherwise, we would die sooner than we’re
going to die anyway.
So sometimes
when you laugh at this stuff, it’s not because it’s funny. It’s
just incredulous that it’s happening. And it’s happening under our
noses. And people like Ron Paul predicted much of what’s happening
today, years ago.
ROCKWELL:
No, that’s right. And, of course, we should always remember, too,
that the government does not like to be laughed at.
NAPOLITANO:
Right. Right.
ROCKWELL:
In some sense, that bothers them almost more than anything else.
NAPOLITANO:
Right. Remember what Thomas More said about the devil: “The devil,
proud spirit, he cannot endure to be mocked.” Government is the
same way.
(Laughter)
ROCKWELL:
That’s great.
(Laughter)
That’s great.
That’s a great way to think of that.
It was apparently
a good judicial ruling over parts of the National Defense Authorization
Act, one of its more outrageous claims.
NAPOLITANO:
Of course, the Army cannot arrest Americans on American soil. And,
of course, the government can’t arrest anybody without charging
them with a crime that was a crime at the time that it was committed.
But yet, we live in an environment when we have reason to fear that
the government will do this.
Obviously,
I hope that this case is upheld by an appeals court and by the Supreme
Court. But the government is shrewd. When the government loses these
cases in trial courts, Lew, it doesn’t always appeal them for fear
that a higher court will invalidate the government’s authorities.
Right now, they just have one federal judge of the thousand in the
country saying this. So if they can steer clear of that federal
judge, they’re OK. But if this judge is upheld by the United States
Court of Appeals for the District of Columbia Circuit and then that
court is upheld by the Supreme Court, well, then the government
loses one of its tools of tyranny.
And they have
done this with the Patriot Act. Virtually, every time that portions
of the Patriot Act have been invalidated or the government’s use
of the Patriot Act has been invalidated, the government has chosen
not to appeal for fear it will lose the appeal and will not be able
to lose the tools of tyranny in the future.
ROCKWELL:
Judge, we have what seems to be the eternal race going on between
freedom and power. What’s your analysis of what’s going to be happening?
We’ve got all the young people that Ron Paul has educated. And we’ve
got others who have been educated by you and are worried about what’s
going on. They’re not averting their eyes.
NAPOLITANO:
I think that a generation and a half behind yours and mine is a
wave of young people who understand the proper role, the relationship
of government to individuals in a free society. And their understanding
will not be molested by the traditional establishment in America.
I don’t know
how this plays out. I don’t know if they vote freedom-loving people
into office. I don’t know if the monetary system collapses and various
governments are formed, offering different levels of freedom in
the United States. I don’t know if there’s a revolution. I don’t
know if the American voter will wake up to this before it’s too
late. But I do know that this force for liberty, which exists among
so many people in their 20s and 30s and even in their teenage years
today, is not going to be suppressed and will be heard, and will
fundamentally alter the relationship that the government has to
individuals.
Again, without
referring to your age or mine, Dear Lew, I don’t know if this will
happen in your lifetime or mine.
(Laughter)
But it will
happen in America. Some day, it will be freer than it is today.
ROCKWELL:
Judge, you’re very generous to convey your age and mine.
(Laughter)
It’s true.
I mean, I’ve run into young Ron Paulians, 10, 11, 12 years old,
who are reading, who are concerned about these things, and who are
angry and dedicated to making sure that things change in their lifetimes.
NAPOLITANO:
Yes.
ROCKWELL:
And there’s much reason to be optimistic, I think, despite all the
horrendous things that are coming out of Washington.
NAPOLITANO:
Indeed, my friend, indeed.
ROCKWELL:
Judge, thanks so much for coming on. It’s always an honor to have
you.
NAPOLITANO:
Oh, pleasure. A pleasure to be on with you, Lew. I’ll be thinking
of you Sunday afternoon when I’m listening to this and when I’m
reading everything that accompanies it.
(Laughter)
ROCKWELL:
Thank you, sir.
NAPOLITANO:
Pleasure. Bye-bye.
ROCKWELL:
Bye-bye.
Well, thanks
so much for listening to the Lew Rockwell Show today. Take
a look at all the podcasts. There have been hundreds of them.
There’s a link on
the upper right-hand corner of the LRC front page. Thank you.
December 28, 2012
Andrew P.
Napolitano [send
him mail], a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel. Judge Napolitano
has written seven books on the U.S. Constitution. The most recent
is Theodore
and Woodrow: How Two American Presidents Destroyed Constitutional
Freedom. To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and cartoonists, visit
creators.com.
Copyright
© 2012 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.