March 09, 2004, 9:20 a.m.
Misunderstanding Patriot, Ch. LXVII
Andrew Napolitano gets it wrong.

On Friday, Andrew Napolitano, a former judge and now "the senior judicial analyst with the Fox News Channel," published an op-ed in the Wall Street Journal titled "Repeal the Patriot Act." It's a short op-ed, less than 800 words, so the general method of the op-ed — declare that the act is an unconstitutional monstrosity in general, and point to a very few specific examples of its badness — may be the only one that Napolitano could have adopted. But his specific complaints are rather weak.

1) "In addition to other violations of the Constitution which it purports to sanction, the [Patriot] Act authorizes intelligence agencies to give what they obtain without probable cause to prosecutors." It's true that the Foreign Intelligence Surveillance Act (which Patriot modified) does not require a showing of probable cause of a crime. But it does require a showing of probable cause that the target is a foreign power, terrorist group, or agent of one.

2) Napolitano complains, somewhat irrelevantly, that the Intelligence Authorization Act President Bush signed last December "expands the term 'financial institution' so as to include travel agencies and car dealers, casinos and hotels, real estate and insurance agents and lawyers, news stands and pawn brokers, and even the Post Office." When these companies act as financial institutions for customers, transferring funds around the world, why should they be immune from the controls that apply to financial institutions? If the feds can monitor al Qaeda's money when it moves through a bank, why shouldn't they be able to monitor it when it moves through a company that keeps a sideline in financial transactions?

3) "The tools Congress gave to intelligence agencies are only constitutional when used just for intelligence purposes." Well, maybe, but it's going to take more than Napolitano's say-so to establish the point. In 2002, the FISA Court of Review, composed of three federal judges, specifically rejected this idea.

4) "[W]ithout probable cause, without some demonstrable evidence of some personal criminal behavior, the Constitution declares that our personal lives are none of the federal government's business." I must have missed that con-law class. As mentioned above, the courts allow FISA investigations upon showing of a probable cause that the target is a terrorist, foreign power, or agent thereof. That is not necessarily the same thing as probable cause that the target is engaged in "some personal criminal behavior." The Constitution on its face does not suggest that the government is restricted in investigating possible foreign agents in the way Napolitano suggests; nor have judicial decisions interpreted the Constitution in this strained manner.

The Constitution does not always require any showing of probable cause — whether of "personal criminal behavior" or of working for a foreign power — before the government can obtain information. Has the former judge ever heard of subpoenas? They can be judicially enforced without probable cause if a court finds that the request is relevant to a legitimate, authorized investigation, is reasonable in scope, and is not made for some improper purpose.

So few words, so much misinformation. One almost has to admire the man.