Civil Liberties in Wartime

0:00So I'm on the bench for about two or three weeks and I'm assigned small claims. You walk out into the courtroom, there's maybe two or three hundred people in the courtroom, not unlike this room, and your job is to resolve all of their cases before lunchtime because you're going to have this many cases back at 1 30. The typical case is, well, the dry cleaner ruined my dress but he also tried to pick up my sister. So this lawyer says to me, Judge, we're going to need a translator for my case. I said, what's the language? He said, Italian. So I call the court House Administrator to see if the Italian translator is ready. Sure enough, she was busy in another courtroom, so I say to the crowd of the courtroom, is there anybody here that speaks Italian? Little guy in the back raises his hand, he comes up, we swear on the translator, we swear on the witness, here is exactly, literally what happens. Lawyer

0:50Lawyer to Translator, Give the Court Your Name Translator to Witness, What is your name? I said, all right, let me see where this is going to go. Second question, Lawyer to Translator, Tell the Court Your Address Translator to Witness, Where is your house? I looked at this guy, I said, I thought you told me that you could speak Italian. He said, I can, Your Honor, but my English, she said, not as so good. One day I'm picking a jury in New Jersey, the judge picks the jury. Again, you have two or three hundred people from whom you need to extract twelve individuals who have no bias, no prejudice, no interest in the outcome of the case.

1:41This is a drug distribution case. So I say to the crowds, is there anybody here who has any reason why they can't participate in this particular trial? A lady in the back raised her hand. She said, Judge, I can't be on this case because of my occupation. Alright, next question. Madam, what do you do? She says, Your Honor, I'm a soothsayer. Oh, come on. Who calls themselves a soothsayer these days? So again, I fall for this. I said, all right, lady, how does that keep you from being on the jury? She said, Judge, I already know how the case ends up. I should have said, tell us, lady, and save us the next three weeks in the courtroom. I have been harshly, harshly critical in my writings and in my broadcasts of the Bush administration.

2:37But I have to take a little bit of blame that they're even there. It was the tail end of the recount, the days in November and December of 2001, at Fox News, we were working 17, 18 hours a day without a break. And I had to become an expert in, of all things, Florida election law. So I'm on one night with Brit Hume, it's ten minutes of seven, and all of a sudden you see one of those things that you see on Fox about 30 or 40 times every half hour, The Supreme Court of Florida has just ordered that the recount resume in not only the four counties that Al Gore has challenged, but the other 68 counties of the state of Florida as well.

3:28And we're told that Governor Bush's lawyers are going to appeal this decision to the United States Court of Appeals for the 11th Circuit in Atlanta. Britt says to me, what do you think about that, Judge? And I said, well, the United States Court of Appeals for the 11th Circuit in Atlanta does not have jurisdiction to hear an appeal from the Supreme Court of Florida. He said, well, what should Bush's people do? I said, well, if they want to appeal this, they should go to the house of Justice Anthony Kennedy, who lives in Georgetown. in Georgetown, he's the circuit justice for the 11th circuit, which basically means you can only appeal this to the Supreme Court of the United States, go to Justice Kennedy, ask him if he'll stay, lawyers use the word stay when they mean stop, stop the decision, the effect of the decision of the Florida Supreme Court, and then he'll poll the other eight members of the court and they'll decide whether they want to uphold his decision.

4:25At this point, I go up to my office to go to sleep, because I have to be on with that character O'Reilly at 8 o'clock, and we've been going almost 24-7. At 7 o'clock, my very garrulous, utterly unstoppable, knows how to look a camera in the face, colleague Shepard Smith comes on, and again, another one of those swoosh, Fox Alerts. This alert is the following. The lawyers for Governor Bush have just been sighted in their cars in Georgetown trying to find the house of Justice Anthony Kennedy. Shep then looks in the camera as only he can. He said, you know what that means? That means that George Bush is watching Fox News and he's getting his advice from Judge Napolitano and the rest I am sad to say is history.

5:20Let's talk a little bit of American history. We were colonies and we were subject to a king and a parliament and the king and the parliament had ingenious, some direct, some subtle ways of Raising Money from the Colonists. And one of the ways that money was raised was by the introduction and execution of something called the Stamp Act. And the Stamp Act required that every piece of paper in your home, a book, a pamphlet, a deed, a mortgage, a bank check, if there was such a thing at the time, in your home, even a poster you planned to nail to a tree, must bear a stamp with the King's image on it. Question. How did the King's government know if on every piece of paper in your home you placed a stamp with the King's image? Answer. Parliament enacted the Ritz of Assistance Act, an utter abomination which authorized British soldiers to write their own search warrants so British soldiers would literally show up at your front

6:33door and write a search warrant authorizing themselves to enter and cross the threshold and look for the King's stamps. Of course they might also find rum from the islands and it might not have a stamp. They might find furniture imported from another colony and it might not have a stamp, but they had free We reigned once inside your home to look for and seize what they wanted because Parliament authorized them to write their own search warrants. We all know what happened. We wrote a Declaration of Independence. We fought a revolution. We wrote a constitution.

7:19In the Declaration of Independence, every school child knows these words. Wilson announced conclusively that our rights come from our Creator, and among them is life, liberty and the pursuit of happiness, and those rights are inalienable, meaning they cannot be taken away from us. This was not enough for Alexander Hamilton and John Adams and the big government guys at the Constitutional Convention in 1787, Jefferson, who wasn't there, but through his friend, Madison, argued, freedom comes from our humanity, just as it says in the Declaration of Independence, our humanity comes from the Creator, the Creator is perfectly free, and He has given in us, as part of our essence, all the yearnings for freedom that we have, freedom to think, freedom to think, freedom to think, freedom to think.

8:22freedom to think, freedom to speak, freedom to develop your personality. I sometimes say to Bill O'Reilly, it's just too bad you have that freedom. But nevertheless, all these freedoms that we have, freedom of religion, the right to travel, the right to be left alone, Madison argued, come from our humanity, which is a gift from God. Adams and Hamilton argued to the contrary. Freedom comes because the government allows us to be free. What is the value of freedom, they argued, if the government isn't around to enforce it? We have freedom of speech because we have a government that will enforce freedom of speech. That argument is known today as positivism.

9:08Again, a legal word meaning whatever law the government enacts, as long as the government followed its own rules when it enacted the law, It's a valid law. Now, the tension between these two schools of thought, the natural law, which says that freedom is our birthright, and positivism, which says that freedom comes from the government, this is more than just an academic dispute. If our freedom is part of our humanity, who the hell is the government to take it away? If our freedom comes from the government, there is at least a rational argument to be made that the government can take it away.

9:57Notwithstanding the oath that every president has taken, read the oath. It's in the Constitution. Is it an oath to defend real estate? No. Is it an oath to keep us secure? No. Is it an oath to keep us safe? No. It's an oath to uphold the Constitution. And the Constitution, I would argue, guarantees the natural freedoms which come from our birth. Unfortunately, even though the American Republic, the creation of the American Republic, is the greatest political achievement in the history of the Western world. Very few of those who have been elected as president of the American Republic have followed through with their obligation to preserve that freedom and to mandate that greatness. Because almost from the very beginning, in the administration of John Adams, the government Human Enacted, the Alien and Sedition Acts, among other things, think about it, we just fought a revolution, we just broke away from the mother country because of things like give me liberty or give me death, because of things like freedom from the government

11:20is the true liberty of the people, because of things like if you sacrifice freedom for safety you'll end up with neither. But eight years after becoming a country, the Congress in Acts, the Alien and Sedition Acts, Jefferson was the Vice President, Adams was President. It makes it a crime punishable by two years in jail to criticize the Congress, to criticize members of the cabinet, or to criticize the President. Note who's missing. It was not a crime to criticize TJ, the Vice President. He would have nothing to do with it, and the Federalist wrote the statute conspicuously left him out. So the country born of freedom, the country which had just passed the Bill of Rights, enacts a statute that permits the federal government to punish people for speech.

12:19During the Civil War, of course, we saw perhaps the worst transgressions of human liberty in the history of our country. Abe Lincoln caused the deaths of 650,000 Americans. Abe Lincoln's troops robbed banks, burnt courthouses, raped women, all with the blessings of the chief executive. Abe Lincoln suspended the writ of habeas corpus. Abe Lincoln locked up editors of newspapers from the North, not from the rebelling South, because they preached that he was violating the Constitution. But just as was the case when we thought the French were going to attack in the Adams administration, we allowed the government to do these things during the Civil War.

13:07Woodrow Wilson, who was the president of my alma mater eight years before he was president of the United States, presided over the Espionage Act, which by the way is still the law. The Espionage Act of 1917 makes it a crime to discourage the war effort. And the first person prosecuted under the Espionage Act was a fellow named Gitlo. Do you know what Gitlo did? Gitlo distributed leaflets on the Lower East Side of Manhattan, encouraging people to strike for a day. The leaflets were in Yiddish. They weren't even in English. Mr. Gitlow spent 10 years in a federal institution as a result of the successful prosecution of him under the Espionage Act.

13:55World War II, we all know what FDR did. He locked people up because of their race. He locked up 10,000 Italian Americans and 120,000 Japanese Americans. Americans, no trial, no charge, no courtroom, no jury, no lawyer, just lock them up and forget about their families and forget about their income and forget about their property and forget about their businesses. In the opinion of the chief executive, they were security risks and so they should be locked up. In the periods between these wars, when When times were better, there was more freedom. But when the President of the United States, as is the case now, preaches fear rather than hope. Look, FDR was a rampant, maniacal socialist, but at least he preached hope during World War II. This crowd preaches fear. And when The people are afraid, it's amazing, the satanic bargain that they will enter into.

15:15Here's the bargain, hey, come over here behind this tree, this is the devil so he can't really show his face, he can't be exposed to the sun, God forbid he should see a crucifix. Here's the bargain. Here's the bargain. Give me your freedom and I'll keep you safe. And we accept that satanic bargain. When Jimmy Carter was the President of the United States and had huge democratic majorities in the Congress, the Foreign Intelligence Surveillance This Act was enacted. It allowed for the first time in history search warrants to be signed by federal judges for reasons other than probable cause. What's probable cause? Again, a legal phrase meaning it is more likely than not that in that pamphlet or in that computer or in that bank account or in that barn or in that dresser drawer underneath the clean In Shirts is evidence of a crime. For 200 years, the Fourth Amendment, the uniquely American right, as Justice Brandeis called it, the right to be left alone, was honored

16:37in this country. What saved us from becoming a banana republic was that the government The government could not break down the door in the middle of the night, unless it went to a judge, a neutral, life-tenured judge, and presented evidence of probable cause. You see, the Fourth Amendment was written to restrain the government. Regrettably, we've given the government a monopoly on the use of force. It's almost impossible, especially in this city of von Mises, to protect yourself with force. We give the government a monopoly on force. The Fourth Amendment regulates that monopoly. It says that when the government wants a target, the Constitution puts a neutral magistrate between the government and its target.

17:33No matter how evil is the target, No matter how widespread is the belief in the guilt of the target, no matter how guilty is the target, no matter how fearsome is the target, no matter who the target is or what the target knows, the government has to go to a neutral judge before it can unleash its force on the target. That is the Constitution. And the Constitution, as you know, can only be changed when two-thirds of each house of the Congress and three-quarters of the state legislatures agree. For 200 years, that was the law of the land until 1977 when under the Carter administration they began chipping away. We had presidents who chipped away, Adams, Lincoln, Wilson, Roosevelt, But 1977 is when the Congress and the whole apparatus of the federal government begin chipping away.

18:40But even Carter, with his absence of concern for liberty, knew enough to realize that any evidence obtained from one of these FISA warrants, where all you have to do is prove that the target is an agent of a foreign government, you don't have to prove probable cause of crime. and Crime. That's too difficult for these federal agents. We'll make it easier. They only have to prove that the target is an agent of a foreign government. It could be a government friendly to the United States, like Great Britain or Italy, or it could be a government that wishes us ill, like the old Soviet Union or the old East Germany. No matter. So long as the target was an agent of a federal, of a foreign government, a judge was authorized The Federal Reserve has to sign this search warrant to listen to phone calls, but because there was no probable cause of crime, anything learned from the phone call couldn't be used at a trial.

19:42So example, if the feds get a warrant under FISA, and they listen to a phone call, and they find out that the janitor at the Russian embassy is really a spy who beats his wife. He can't be prosecuted for spying because they learned this from an unconstitutional warrant. He can't even be prosecuted for beating his wife because they learned about it from an unconstitutional warrant. He can only be deported out of the country. Even Jimmy Carter understood that the Fourth Amendment prohibits the government from using evidence obtained by less than probable cause in a criminal prosecution. Of course, that wasn't enough for the government. In 1978, just a year later, the government enacts the Rights of Financial Privacy Act.

20:33Now, if you know anything about the way the government works, if the word privacy is in the name of the statute, head for the hills and start using cash. It's a cinch your privacy will suffer and it will because for the first time in American history your government and mine authorizes its agents to write their own search warrants. It wasn't enough that we lowered the bar from From Probable Cause to Agency of a Foreign Power, we now, in 1978, allowed the feds to write their own search warrants, but we limited the target to a financial institution.

21:23So an FBI agent could show up at a bank and say, I want the financial records of John Gotti and here's my warrant for it, I'm writing it out myself. Whether it's an evil person The Bank would call its customer and say, there's a guy here from the federal government. He just wrote out his own search warrant. He is showing us proof that he's from the FBI and he's demanding your bank records. We're going to give him your bank records in two weeks. You have two weeks to challenge this self-written search warrant. and you'd go before a judge. Judges don't like self-written search warrants.

22:09It takes power away from them. The Constitution says only they can grant search warrants and the FBI would have to justify A, what it wants, B, why it wants it, C, why it used the root of a self-written search warrant. But the target was limited to financial institutions and again, Carter, I don't know why, but in a stroke of fidelity to the Constitution, insisted that any evidence obtained from your financial institution, from one of these self-written search warrants, could not be used in a criminal case against you. Now comes September 11th, 2001. If you lived in this city or if you lived near Shenkville, Pennsylvania or if you lived anywhere near the District of Columbia, Do you know what we all went through?

23:03It was a horrible day, it was awful memories, it was horrific carnage, it was a government caught unprepared, it was evil monsters who attacked us and slaughtered, murdered 3,000 of our fellow Americans and unfortunately changed our psyche and our government probably forever. Within two weeks of September 11th, the government proposed truly the most abominable piece of legislation since the Alien and Sedition Acts, the very cleverly and awfully named Patriot Act. The Patriot Act is the single most abominable, unconstitutional, unpatriotic piece of legislation ever passed by any free people.

23:59The Patriot Act authorizes federal agents, without a warrant, to break into your home, to plant a surveillance device under your bedpost, or under your kitchen table, or in your shower, or in your living room. Imagine this, you come home from a basketball game on a Friday night, or church on Sunday The Patriot Act lets FBI agents write their own search warrants for financial institutions but makes it a felony punishable by five years in jail for the financial institution to tell you that it has received one of these self-written search warrants.

24:52Now you may say, well, wait a minute, wait a minute, the Constitution says only judges can write search warrants, we fought a war to break away from Great Britain because those British soldiers wrote search warrants, now we're going to let our own FBI write their own search warrants? Yes. What about the First Amendment says, Congress shall make no law abridging the freedom of speech? How can Congress make it a crime for me to tell anyone that I have received one of these self-written search warrants. It's the reason you see cases like John Doe versus John Ashcroft, or Jane Roe versus Alberto Gonzalez, because it is a felony to stand in a federal court and tell a federal judge that you have received one of these and you want to challenge it.

25:43You have to do so under cover of darkness, under an assumed name, because the Congress has made it a crime to speak freely. How much time did the House of Representatives take debating away your First Amendment and your Fourth Amendment rights? Answer zero. How many members of the House of Representatives have the physical opportunity to read the Patriot Act before they voted on it? Answer zero. The Patriot Act, which is 315 pages long, but does not read like a novel because it amends dozens and dozens and dozens of pages of the Federal Criminal Code.

26:39In order to read it, you have to have the entire federal criminal code in front of you, and they'll change and to or, they'll change a semi-comma to a comma, they'll change a may to a must. In order to do that, you have to go in and out of the other books. Conservatively, it probably took me 15 or 20 hours to read the Patriot Act the first time I read it. It was posted on the House intranet. It's the internal internet that only goes to House members and their staffs for 15 minutes before members had to vote on it. Well, John Ashcroft told them, we have to have this Patriot Act because the terrorists are under our beds. It's the FBI agents that are putting the bugs under the beds, not the terrorists, John.

27:25Nevertheless, the terrorists are under our beds. They're around the street corner. They're selling our newspapers, pumping our gas, driving our cabs. We need this Patriot Act because we have to go after them. There isn't even time to debate. Two members of the Senate read it and one of them is dead. Paul Wellstone read it in its entirety, voted against it. Russ Feingold read it in its entirety, he voted against it. No other member of Congress has admitted publicly to having read the Patriot Act before voting on it and the Patriot Act says not only may information obtained from a self-written search warrant be used in a criminal prosecution but it shall when lawyers say shall they really mean must lawyers have this habit of not always using the right word but when they say shall they mean must so the government must use evidence it obtains from a self written search warrant from a financial institution executed by an FBI agent because the FBI agent didn't have the evidence or didn't have the time to go to a federal judge.

28:43How many jury convictions have there been under the Patriot Act for acts of terrorism? Same number as that I gave you before, none. There have been convictions for prostitution. There have been convictions for gambling. There have been convictions for political corruption. None of these things is necessarily a good thing, but not a single jury verdict of guilt from and after the Patriot Act. But even the Patriot Act, for all of its faults, for all of its damnable violation of our natural rights, limited the target of those self-written search warrants to financial institutions. On December 13, 2003, a day in which everyone in this This room remembers where he or she was.

29:46The president signed into law a lengthy and innocuous sounding piece of legislation known as the Intelligence Authorization Act for Fiscal 04. It basically appropriated funds from the general treasury to the 16 different federal intelligence intelligence agencies of whose existence we know. But there was a clause in this statute which would change federal law enforcement forever. And George W. Bush knew that by signing It on December 13, 2003. Because of an event that occurred that day elsewhere on the planet, no one would notice this clause in this statute. In a truly Orwellian masterpiece, the government of the United States, your government and mine, has redefined financial institution.

31:02Here's what financial institution means today, from and after the Intelligence Authorization Act of 2004. A bank, makes sense. A trust company, a private bank, a credit union, a stock broker, a stock dealer, an investment banker, an insurance company, a pawnbroker, a bodega, a delicatessen, a travel agency, a car dealer, a lawyer's office, a doctor's office, a hospital, an HMO, a supermarket, A hotel, a restaurant, a casino, a real estate broker, and that great financial institution to which we would all repose our fortunes, the post office.

31:58So by redefining two simple words, financial institution, the government has given its agents, the power to read your mail before you do by signing themselves the power to do so, to read your file at your lawyer's office, to read your medical charts at a hospital or at your doctor's office, all of this without the need to show probable cause, all of this without an involvement of a federal judge, all of We call this at the whim of a single FBI agent because we are at war. So have we come full circle, my friends, from Americans who fought a revolution because the British soldiers could write their own search warrants to Americans who, like sheep, allow our elected officials to permit FBI agents, actually it's any federal agent, to write their own search warrants.

33:09Oh, in December 13, 2003, it was the day we captured Saddam Hussein. The government knew that by the president signing it that day, nobody would notice it. Notice that this thing was found in the Federal Register by a clerk on January 29th, a month after the government began serving self-written search warrants on anything it wanted to call a financial institution. Well, where do we go from here? This is not a happy tale that I tell. These are dark days for human liberty. The president says he believes in natural rights. He doesn't believe in natural rights.

33:55He believes he can take away any right that you have without even amending the Constitution, without even seeking a vote of the Congress, but just by the stroke of a pen. But when his lawyers said to him, take these bad guys to Cuba because the Constitution doesn't apply, the criminal laws of the country don't apply, No treaties apply, and best of all, Mr. President, those pesky federal judges can't reach you. The Supreme Court rejected that argument by 8 to 1. Then the President said, I'm going to declare people enemy combatants, deny them a judge, a jury, a trial, don't even charge them with a crime, lock them up for as long as I want. And the Supreme Court said no, 6 to 3.

34:41And the President said, well, I can torture all I want by redefining the word torture Because I'm the Commander-in-Chief and I have the inherent power to do so. And the Supreme Court said that Geneva Conventions apply by a vote of 6 to 3. It's hard to believe, but my former colleagues in black robes have been the last line in the sand with this administration. And there are more battles to come. Where are those battles to be waged? They're to be waged in the hearts of freedom-loving people. Because freedom lies in our hearts. When it dies there, no speech, no judge, no von Mises, no Lew Rockwell, no Murray Sabrin, no Ron Paul is going to bring it back. But But when it lives and reigns in our hearts, no government for long can take it away.

35:54God bless you.