Liberty and Safety
by Andrew P. Napolitano
July 17, 2009
For a professor of law at one of the country's best law schools who was once the go-to guy in the Justice Department whenever the Bush White House needed legal cover for its truly lawless ventures outside the Constitution, John Yoo has revealed a breathtaking ignorance of American values, history, and jurisprudence.
In his startling mea culpa, published in the Wall Street Journal yesterday, Professor Yoo confessed to advising President Bush that he possessed powers from some source other than the Constitution, that in the name of public safety he could cut down all laws written for the express purpose of restraining the President, and that Americans would expect no less than this so long as they were actually kept safe as a result of it.
He advanced the argument that since the President's first job is to keep us safe, he could disregard the 1978 FISA law as "obsolete" since it was written in an era when modern day non-state terrorism was not contemplated. By this unprecedented and perverse logic, one wonders if the President was told if he could disregard as obsolete any law that was inconvenient to his purposes; even the Supreme Law of the Land itself, which the Constitution declares itself to be.
The whole purpose of FISA was to abolish the Nixonian notion that "If the President does it, it's not illegal." While FISA's statutory reduction of the constitutionally-mandated standard for obtaining a judicial search warrant – from probable cause of crime to probable cause of foreign status – is itself of dubious constitutionality, nevertheless, it is and was at the time Professor Yoo was telling President Bush to disregard it, the "exclusive" lawful means for agents of the President to wiretap foreign persons present in the U.S. Moreover, the FISA court has become the President's rubber stamp by granting well over 99% of requested warrants.
It is not painless for one who loathes this law to defend it; but it was among the laws that the President and the Professor swore to uphold, it does force the executive branch to identify and specify who and what it wishes to pursue, and it presents at least a minimum of checking and balancing by forcing the President to go before a super-secret court (without an adversary present) and seek permission to violate the Fourth Amendment-guaranteed rights of the President's targets.
The time-is-of-the essence argument is nonsense. I once issued a search warrant in my gym shorts from my living room at 3 am, and I know of a former FISA court judge who did the same from his cell phone while riding a motorcycle. While neither of these situations is optimal, there are at least written records of what was done to whom and why; and that was a goal of the law which President Bush was told was obsolete.
The Framers never contemplated FISA, and I cannot conceive of Jefferson, Madison, or even Hamilton condoning it. But one thing we know the Framers would never condone is a government that refused to reside within the Constitution; "chained down" by it as Jefferson once said.
The Founders, unlike John Yoo and George Bush, feared a king who enforced only the laws he found convenient to his present needs, who dispatched his agents with their own self-generated search warrants to knock on any door and seize any thing they or the king wanted, and who claimed to be doing all this for safety's sake.
Cutting down the laws to get at the Devil is dangerous business. As Robert Bolt argued in A Man for All Seasons, the land is planted thick with laws. If you cut them down to get to the Devil, who could stand the wind that then would blow?
When President Lincoln and the Radical Republicans tried civilians in military tribunals in the North, hundreds of miles from battle, and in the South after the Civil War had ended, a unanimous Supreme Court stopped them. It declared that "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."
President Bush argued frequently and forcefully that his first job was to keep us safe. He was wrong. The Constitution tells us that his sole job was to enforce the Constitution; and that means keeping us free. Free from tyrants who sought and claimed power from thin air; free from prince-like federal agents who could behave without constitutional or legal restraint; free to live with a government that obeyed its own laws. Any president who keeps us safe but unfree is rejecting his oath to the American people.
Andrew P. Napolitano, who was on the bench of the Superior Court of New Jersey between 1987 and 1995, is the senior judicial analyst at the Fox News Channel. His newest book, coming in April, is Dred Scott’s Revenge: A Legal History of Race and Freedom in America, (Nelson, 2009) His previous books are A Nation of Sheep, The Constitution in Exile and Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.