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Tools of Tyranny

December 28, 2012
Andrew Napolitano & Lew Rockwell
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Andrew P. NapolitanoListen to the podcast

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 –


– 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.


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.


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 –


– the customer’s money, not the taxpayer’s money –


– 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!


You can’t make this stuff up. I mean, I know we enjoy discussing it. My favorite reading of the week is 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.


ROCKWELL: That’s great.


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.


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.


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.


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.


ROCKWELL: Thank you, sir.

NAPOLITANO: Pleasure. Bye-bye.

ROCKWELL: Bye-bye.

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