JUDGE ANDREW NAPOLITANO SKEWERS BUSH’S
ASSAULT ON OUR CONSTITUTIONAL LIBERTIES
CONSTITUTIONAL LIMITATIONS ARE MOST
GREATLY AT RISK IN WAR TIME
“The American Constitution - the American system of government
with a written and popularly accepted Constitution which shows and
demonstrates the primacy of the individual over the state - is the
greatest political achievement in the history of the Western World.
“Nowhere is the government’s fidelity to the limitations imposed
upon it by the Constitution and the guarantees of human liberty which it
is required to honor - nowhere is that behavior more sorely tested than in
war time. …”
GWB IS MORE LIKE KING GEORGE III
THAN GW #1
“Remember from basic high school American history when we were
colonists and the king was looking for cash? Parliament enacted among many
abominations the Stamp Act. The Stamp Act required that for every document
- whether it be a poster on a tree, playing cards that you would use in
your home, a bank check to the extent they existed at the time, or a
mortgage, or a lease, or a deed - every document for it to be lawful in
the colonies had to bear the king’s stamp. You had to go to a government
office and buy a stamp, and that’s one of the ways that the British
government raised money from amongst the colonists.
“How did the British government enforce the Stamp Act? It sent
soldiers to your home with the proverbial knock on the door asking to see
“WRITS OF ASSISTANCE” LED TO
INDEPENDENCE AND FOURTH AMENDMENT
“How did the soldiers get into the homes of the colonists? The
king addressed that problem. The Parliament enacted the Writs of
Assistance Act. A Writ of Assistance was a warrant so broad and so
general, devoid of scope, devoid of subject matter, devoid of geographic
limitation that it literally allowed the king’s soldiers to go wherever
they wished and commentators have referred to the Writs of Assistance as
virtually self-written search warrants because it was a document that
would allow the soldiers to go as they wanted.”
BUSH HAS BEHAVED AS IF THERE IS NO
“The rest is history. We fought a revolution. We enacted a
Constitution. We added a Fourth Amendment. The Fourth Amendment
prohibits Writs of Assistance. It condemns the concept of self-written
search warrants. It specifically requires that, before the government
can come on to your property, whether it is to look for your stamps, or
your marshmallows, or your children, it has to get a search warrant, and,
in order to get that search warrant, it must go to a neutral judge, state
or Federal, and present that judge with evidence which the Constitution
calls probable cause. Simply, enough evidence to demonstrate that it is
more likely than not that the target has engaged or is engaging in
criminal activity and the search warrant is likely to be fruitful. After
presenting that evidence to the court, the court will decide whether or
not to sign the search warrant.”
FISA - ENACTED IN 1977 - EXPANDED BY
“For 200 years, Americans enjoyed that enforcement of the Fourth
Amendment. We could sleep at night with a certain knowledge and security
that, if the government was going to knock at the door or break it down,
it would only be after a judge scrutinized the government’s efforts and
specifically authorized it to do so.
“Comes now the Foreign Intelligence Surveillance Act of 1977 known
popularly by the acronym, FISA. FISA creates a super secret Federal court
where (we’re told) it meets in the sub-basement of the Justice
Department but, because we can’t see the record of where it meets, no
one knows where it meets.
“FISA authorizes the government to come before this secret court,
and by demonstrating the existence of probable cause - not that a crime
has been committed, but that a human being is an agent of a foreign
government - authorizing the surveillance of that human being.
“Now an agent of a foreign government could be an agent of a friendly
government, it could be an employee of the government not engaged in any
espionage or spying activity.
“FISA, believe it or not, actually has a protection for civil
liberties in it because it limits the government’s ability to use the
information obtained from a FISA warrant for one purpose and one purpose
only, and that is to kick the offender out of the country.
“If, for example, a person is holding himself out as a journalist
from a foreign government and that person is truly a spy for that
government, the information obtained from a FISA warrant cannot be used
for any criminal prosecution. Why? Because it wasn’t obtained with the
true Constitutional ‘probable cause’. The person could be kicked out
of the United States.”
UNDER REAGAN, 1986 ACT EXPANDED FISA
TO COVER PRIVATE FOREIGNERS
“In 1986, the Congress again tinkered with the Constitution when it
enacted the Electronic Privacy Act of 1986. As I am sure you know from the
way the government names statutes, the Electronic Privacy Act has
nothing to do with protecting your privacy. It has about as much to do
with privacy as the Patriot Act has to do with patriotism.
“Nevertheless, the Electronic Privacy Act expands FISA so that the
target need no longer be an agent of a foreign government, but the target
could be a foreigner, a person not native to the United States. The
other expansions of the ability of this secret court to give search
warrants are for those engaged in organized criminal activity, whether
foreign or domestic, and then the Congress decided to allow FBI agents
(when the need arises in their own minds and when surveilling a foreigner)
to write something called a national security letter; again, a government
euphemism for an abomination.”
SELF-WRITTEN SEARCH WARRANTS ARE AKIN
TO WRITS OF ASSISTANCE
“A national security letter is what the king authorized under the
Writs of Assistance Act, a self-written search warrant. It took 200 years
for them to come back, but back they came.
“Not because the Parliament of England and a king 3,000 miles away
authorized them, but because our elected government in this city and the
President of the United States signed the Act, allowing FBI agents to
write their own search warrants. The targets of these search warrants
were intended to be financial institutions.
“Now, under the Electronic Privacy Act of 1986, if the government
wished to examine the financial records of a foreigner or a person engaged
in organized criminal activity, it would simply serve the warrant on the
financial institution without going to a judge and demonstrating probable
“What would the financial institution do? It would call up the person
whose records were sought and say: We received a warrant from the
government for your financial records. We intend to comply with that
warrant in the next 10 days unless you produce a document instructing us
not to do so. You had time to call a lawyer. You had time to find out what
the government was looking for, who the government was, what they wanted,
and to challenge that warrant before a judge.
“You would argue whatever the facts were as to why the government
shouldn’t get what it was looking for. The government would argue
against you before a Federal judge. It wouldn’t be the judge who issued
the warrant because the warrant wasn’t issued by a judge, it was issued
by an FBI agent.
“Either way, however, you had your day in court. The judge ruled
either the FBI agent is right or, no, this is the wrong bank account, or
there is not even [a] prima facie case here as to why the
government should get your records.”
BUSH’S 2001 PATRIOT ACT IS AN
UNCONSCIONABLE ASSAULT ON OUR RIGHTS
“Comes now 2001 when the government enacted the Patriot Act. The
Patriot Act is the most abominable, unconstitutional, Congressional
assault on liberty since the Alien and Sedition Acts of 1798 made it a
felony to criticize the Federalist government in this city.
“The Patriot Act purports to legitimize the trade off of human
liberty for government safety. The trade off is a ruse.
“Giving up liberty in return for safety not only violates the
natural law, not only violates the reasons for which we have come together
as a government, not only violates the principles of the Declaration of
Independence and the Constitution itself, but it doesn’t work.”
FREE SPEECH, PRIVACY, AND DUE PROCESS
ALL UNDER ATTACK
“There isn’t a single instance in American history where giving up
liberty has brought us more safety. There is not one documented event in
American history where the national security was impaired because some
person in the United States insisted on their right to speech, or their
right to privacy, or their right to due process.
“Well, the Patriot Act says: Yes, the government can write those
self-written search warrants. Yes, the FBI can do so, but, if you receive
a self-written search warrant, you cannot tell anyone about it.
“You can’t tell Fox News or The New York Times or the
CATO Institute - or even your spouse or your lawyer that you received a
self-written search warrant from an FBI agent.
“Why? Because the Patriot Act makes it a crime to speak about what
the government is pursuing you for.”
GWB USES BOGEYMEN TO ABOLISH OUR
“Wait a minute! Doesn’t the First Amendment say: “Congress
shall make no law…abridging the freedom of speech”?
“Never mind says the Congress. The times are too perilous. The
enemy is too dangerous. He is too slippery and too volatile. We can’t
allow people speaking about those we are pursuing.
“Those financial institutions … can’t tell you that they received
a self-written search warrant as well.
“So now the government - without the involvement of the Judicial
Branch, in direct violation of the Fourth Amendment - can go to a
financial institution and obtain your records without you even knowing it.”
FIAA OF 2004 - GWB IMPOSES A
FASCIST-NAZI-SOVIET STYLE POWER GRAB
“Comes as well, the Foreign Intelligence Authorization Act of 2004,
signed into law on December 13, 2003, a day in which every one in this
room will remember because of an event in human history that occurred on
“The Foreign Intelligence Authorization Act redefines ‘financial
institution’. Remember the Intelligence Act of 1986? We can get the
records from a financial institution. Remember the Patriot Act? We can get
the records from a financial institution - and they can’t tell you that
we have sought your records.
“So the Foreign Intelligence Authorization Act purports to say what
is a financial institution. Well, you know by now that it is more than
just a bank. In addition to a bank it is the following: a hotel, a casino,
a restaurant, a bodega, a delicatessen, a lawyer’s office, a real estate
agent’s office, and that great wonderful financial institution in which
we would all repose our wealth, the post office.
“So for the first time in American history, from the Patriot Act
and the Intelligence Authorization Act of 2004, the government can read
your mail before you do and without you knowing it and without the
involvement of a judicial officer whatsoever.”
YOU MAY NEVER KNOW
“And, if the government chooses not to prosecute you on the basis of
what it learns from these ‘financial institutions’, here is the
kicker, if you’re not prosecuted, you will never know that the
government has obtained these records and documents about you.
“Oh, December 13, 2003, what happened on that day? Why was the
Intelligence Authorization Act of 2004 signed on that day? It was the
day we captured Saddam Hussein. The government knew signing a piece of
legislation like this would be buried in the newspapers and not even
recognized until a month later.
“Recall about a year ago our now outgoing and then in full flourish
Attorney General John Ashcroft proposed a Patriot Act II, widely derided
by liberals and conservatives alike. We don’t need these additional
powers. After all, Mr. Attorney General, since October 15, 2001, when
Patriot Act I was enacted not a single successful prosecution in the war
on terror has taken place on the basis of evidence obtained from the use
of the Patriot Act - not one. So why do we even need a Patriot Act II? And
the proposals sort of drifted away and we didn’t hear about them again.”
IN CONFERENCE - OUT OF SIGHT -
CONGRESS GAVE BUSH PATRIOT ACT II
“Well we heard about them last week. Were they a part of the original
Intelligence Reform Act? No. Were they part of the Intelligence Reform Act
that was debated by Congress? No. Were they part of the Intelligence
Reform Act that was held up by the House Republican leadership? No.
“Where did they come from? They were added by the House and Senate
conferees. These are additional powers given to the government and
regulations imposed upon the Judicial Branch.
“If the government declares that a defendant is a terrorist, it is
presumed that the defendant is not entitled to bail.”
EIGHTH AMENDMENT EVISCERATED
“Wait a minute! Doesn’t the Eighth Amendment say I have the right
to ask for bail no matter what the government says I did? Yes. But,
under this Act, the government does not have to prove that you are a
terrorist. You have to prove that you are not in order to obtain bail.
This turns the presumption of innocence on its head.
“Second, if a person is an alien and is deemed by the government to
be dangerous, the person can be deported summarily, without notice,
without trial, without appearance before any judge.
“Wait a minute! Doesn’t the Constitution protect persons? Doesn’t
the due process clause give guarantees to persons, not just citizens? …
“Oh, and remember FISA. Remember how the target originally had to be
an agent of a foreign government and then the Act in 1986 said it could be
any foreigner. They have changed it again.
“Now, the target of either a FISA search warrant or a self-written
search warrant need only be --- are you ready for this --- a lone wolf.
What in the name of God is a lone wolf? Anyone the government wants to say
is a lone wolf. A person acting independent of all others, not affiliated
with or regulated by a foreign government or any organization whom the
government deems to be dangerous. …
“(T)here is a perception amongst the 535 who work on Capitol Hill - I
say work - I can’t imagine any of them read the Patriot Act. We know
only two did and one of them is dead. … The other is Russ Feingold.
Senator Feingold, of course, voted in favor of the Intelligence Reform Act
of 2004 because he thought he knew what was in it, in fairness to him. He
hadn’t had a chance to read [it] because they didn’t give it to him -
the revised version that came out of the House/Senate conference. …
“In World War I, they were Eastern European Jews arrested by the
thousands by one of General Ashcroft’s predecessors - arrested and
incarcerated without charge or opportunity to defend themselves.
“In World War II, they were Japanese-Americans by the hundreds of
thousands and, to a much lesser extent, Italian-Americans arrested by one
of Don Rumsfeld’s predecessors - arrested and incarcerated without
“In the War on Terror, they are Arab-American young men in their
twenties without political assimilation or power or access.
“We need to demonstrate to the Congress that it is not popular or
accepted to curtail Constitutional liberties in the name of safety. It is
wrong. It is immoral. It is unlawful. It is unconstitutional and it doesn’t
work. It is the Constitution which is the supreme law of the land, and
not the Congress.” Source: Excerpts from remarks delivered by Judge
Andrew Napolitano, Senior Judicial Analyst for Fox News, at the CATO Book
Forum, December 14, 2004