NAPOLITANO: Tyranny Just Around the Corner

The Judge 01By: Judge Andrew P. Napolitano

(Washington Times) A few weeks ago, President Obama advised graduates at Ohio State University  that they need not listen to voices warning about tyranny around the corner,  because we have self-government in America. He argued that self-government is in  and of itself an adequate safeguard against tyranny, because voters can be  counted upon to elect democrats (with a lowercase “d”), not tyrants. His  argument defies logic and 20th-century history. It reveals an ignorance of the  tyranny of the majority, which thinks it can write any law, regulate any  behavior, alter any procedure and tax any event so long as it can get away with  it.

History has shown that the majority will not permit any higher law, logic or  value — such as fidelity to the natural law, a belief in the primacy of the  individual or an acceptance of the supremacy of the Constitution — that prevents  it from doing as it wishes.

Under Mr. Obama’s watch, the majority has, by active vote or refusal to  interfere, killed hundreds of innocents — including four Americans — by drone;  permitted federal agents to write their own search warrants; bombed Libya  into tribal lawlessness without a declaration of war so that a mob there killed  our ambassador with impunity; attempted to force the Roman  Catholic Church to purchase insurance policies that cover artificial birth  control, euthanasia and abortion; ordered your doctor to ask you whether you own  guns; used the Internal Revenue  Service to intimidate outspoken conservatives; seized the telephone records  of newspaper reporters without lawful authority and in violation of court rules;  and obtained a search warrant against one of my Fox  News Channel colleagues by misrepresenting his true status to a federal  judge.

James Rosen, my colleague and friend, is a  professional journalist. He covers the State Department for Fox  News. In order to do his job, he has cultivated sources in the State  Department — folks willing to speak from time to time off the record.

One of Mr. Rosen’s sources apparently was  a former employee of a federal contractor who was on detail to the State  Department, Stephen Jin-Woo Kim. Mr. Kim is an expert in arms control  and national defense whose attorneys have stated that his job was to explain  byzantine government behavior so we all can understand it. When he was indicted  for communicating top-secret and sensitive information, presumably to Mr.  Rosen, his attorneys replied by stating that the information he discussed  was already in the public domain, and thus it wasn’t secret.

Prior to securing Mr. Kim’s  indictment, the Justice Department  obtained a search warrant for Google’s records of Mr. Rosen’s personal emails by telling a  federal judge that Mr. Rosen had committed  the crime of conspiracy by undue flattery of Mr.  Kim and appealing to his vanity until Mr. Kim told Mr.  Rosen what he wanted to hear. In a word, that is rubbish. The FBI  agent who claimed that asking a source for information and the federal judge who  found that the flattering questions alone constituted criminal behavior were  gravely in error.

Reporters are protected in their craft by the First Amendment, and the Supreme Court has ruled that they can ask  whatever questions they wish without fear of prosecution. If Mr.  Kim revealed classified information to Mr.  Rosen — a charge Mr. Kim  vigorously denies — that is Mr. Kim’s  crime, not Mr. Rosen‘s. The Supreme  Court ruled in the Pentagon Papers case that it is not a crime for a  journalist to seek secrets, to receive them, to possess them and to publish them  so long as they affect a matter of material public interest.

The government’s behavior here is troubling. Government attorneys and FBI agents are charged with  knowing the law. They must have known that Mr.  Rosen committed no crime, and they no doubt never intended to charge him,  and they never have. They materially misled the judge, who saw the phrase “probable cause” of criminal activity (taken from the Fourth Amendment) in their  affidavit in support of the search warrant they sought, and he signed it. The  judge should have seen this for the ruse it was. It is inconceivable that a  person could conspire to commit a crime (release of classified information) that  is impossible for that person to commit, particularly with a Supreme  Court case directly on point.

This misuse of the search warrant mechanism by misrepresentation of the  status of the target continues the radicalization of federal criminal procedure  now typical of this Department of  Justice. It has claimed that it can release military weapons to foreign  criminal gangs just to see where the weapons end up, and that its agents cannot  be prosecuted for harm caused by those who received the weapons. It has held  that the serious consideration given in the White House by high-ranking  government officials to the identities of people the president wants to kill  somehow is a constitutional substitute for due process and thus enables the  president to use drones to kill people uncharged with federal crimes. It has  extended the public safety exception to the Miranda rule from a few seconds at  the scene of a crime spent securing the prisoner, where the Supreme  Court has said it resides, to more than 72 hours.

Now this.

The reason we have the due-process safeguards imposed upon the government by  the Constitution is to keep tyranny from lurking anywhere here, much less around  the corner. Due process is the intentionally created obstacle to government  procedural shortcuts, which, if disregarded, will invite tyranny to knock at the  front door and sneak in through the back. Justice Felix Frankfurter warned of  this 70 years ago when he wrote, “The history of liberty has largely been the  history of the observance of procedural safeguards.” That was true then, and it  is true now.

Do you expect the Department of  Justice to cut constitutional corners against you?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey,  is the senior judicial analyst at Fox News  Channel. Mr. Napolitano has written seven books on the U.S. Constitution.  The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed  Constitutional Freedom.”

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