Bench Memos

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Be Glad, Be Very Glad


that Andrew Napolitano is no longer a judge.  In yesterday’s Los Angeles Times, taking the Chicken-Little-libertarian line about the FISA debate, he gets so many things wrong that we should be grateful that he is now merely a “commentator” on legal affairs, not a sitting jurist as he once was.

In many respects the piece reads like Napolitano simply hasn’t kept up with the ongoing debate over terrorist surveillance that’s been raging for more than five years.  But let’s start with something really basic.  Napolitano says of the Fourth Amendment that it “has been uniformly interpreted by the courts to require a warrant by a judge.”  No, actually, the Fourth Amendment says two related but quite distinct things.  It forbids “unreasonable searches and seizures,” and it sketches the conditions under which “warrants shall issue.”  But it does not require a warrant as a condition of a reasonable search or seizure.  Thus the Fourth Amendment is “uniformly interpreted by the courts” as permitting warrantless searches and arrests under a great many different circumstances.  It is stunning if Napolitano doesn’t know this.  But I doubt very much he is ignorant of this elementary fact.  So what does he think he is talking about?

Napolitano also avers that the original FISA of 1978 brought about a “constitutionally questionable procedure” because it permitted the judicial issuance of warrants on a showing of probable cause not that a crime had been committed, but that “the target of the warrant was an agent of a foreign government.”  This, he thinks, was a terrible relaxation of the Fourth Amendment, a shift “from probable cause of ‘crime’ to probable cause of ‘status.’”  Can Napolitano show us where the word “crime” appears in the Fourth Amendment?  It’s not there.  But suppose it were.  Napolitano’s argument simply implodes thanks to the vacuum at its center if he really believes a) that it is unconstitutional to issue a warrant to surveil a foreign agent in the absence of probable cause that he has committed a crime, and b) that no surveillance can be undertaken without a search warrant.  Would he really leave us with no surveillance at all?  It looks that way.

In truth, as Andy McCarthy and others have amply shown, FISA made inroads on a traditional understanding of the Constitution, under which presidents could order spying on the country’s enemies, wherever they may be, without consulting the judiciary.  The Foreign Intelligence Surveillance Court of Review, in November 2002, referred after all to “the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance.”  The entire FISA debate, through all its permutations, has been about what limits can and should be placed on that authority where some of the persons overheard, or locations surveilled–or just the electronic switches routing global communications traffic–are American and not “foreign.”

But you won’t learn anything about the real FISA debate from Judge Napolitano.


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