Judge Andrew P. Napolitano informs us that our government tells us “noble lies” to soften the blow of our loss of liberty. It’s not that we are asked to trade our liberty for security, but that we are programmed through prevarication to believe that our “protectors” only have our best interest at heart.
When James Clapper lies to Congress about spying on Americans, he sees it as a noble lie, done as his patriotic duty for God and country. I tend to believe them that their motives are noble. They actually believe that the priests of the intelligence community must lie to the masses in order to achieve a higher truth—security.
Like de Unamuno’s priest, they believe that the truth can and should be massaged because the masses can’t handle the truth.
Only problem is, we the people are not asked to choose liberty or security. In fact, we the people are often misled to believe that the only way to protect the homeland is by acquiescing, by placing our freedoms at the feet of our protectors.
Lincoln said any man can stand adversity, but if you want to test a man give him power.
Even Lincoln sometimes failed that test, as Judge Napolitano recounts in Lincoln’s suspension of habeas corpus; the test is nonetheless one that challenges liberty lovers everywhere. Can a nation or individual tempted with power resist the allure to grab even more power in times of fear and war?
Indeed, Lincoln’s test of a man is also a true test for a nation. To test a nation’s belief in freedom, challenge the people with the emotions of fear and vengeance that often accompany war.
As the Judge points out, our history is replete with examples of our nation in time of war succumbing to fear and choosing to restrict the very freedom we ostensibly were fighting for.
If I told you that a country passed laws that imprisoned a pastor for fifteen years for Christian pacifism, you might think I was talking of Iran. If I told you that a woman was imprisoned for ten years for criticizing her government, you might think I was speaking of the gulag in the Soviet Union. If I told you that a salesman was arrested and imprisoned for seven to twenty years for calling wartime regulations a big joke, you would think I was surely exaggerating or even making it up. I’m not. Each horrific injustice occurred in America, the land of the free.
Make no mistake, I believe America to be the greatest, freest nation ever conceived. But that doesn’t mean we should let a Pollyanna tint obscure the times in our history when we retreated from liberty instead of manning the barricades.
In Suicide Pact, Judge Napolitano describes these miscarriages of justice. From the Alien and Sedition Acts of 1798 to the Espionage Act of 1917 to the Patriot Act of 2001, fear and prejudice clouded our judgment and caused us to choose security over liberty.
Now President Obama says he just wants to “balance” liberty and national security.
Judge Napolitano succinctly answers President Obama. To Napolitano, it isn’t possible to balance rights and security because “rights and [national security] are essentially and metaphysically so different that they cannot be balanced against each other.”
Rights are inherent and a natural extension of self; national security is a “commodity” that is purchased as a “result of a mixing of an individual’s labor and resources.” A good may be desired but isn’t a right.
You can’t have a right to someone else’s labor. You can’t have a right to a thing or a good because that implies that you somehow have a right to the person’s labor that created that good. National security is not a right. It is a good that requires someone’s labor, and anyone who thinks you can or should trade liberty (a right) for security (a good) misunderstands the concept of natural rights.
I had this discussion with Senator Bernie Sanders, the Socialist from Vermont. He seemed astonished when I maintained that health care cannot be a right because it would imply that someone has a right to the physician’s or nurse’s or hospital janitor’s labor.
Judge Napolitano doggedly points out that this fundamental misunderstanding of rights has time and time again caused us to relinquish our rights, particularly in time of war.
Even when members of Congress try to correct a problem, they often get it only half correct. The Judge describes the Non-Detention Act of 1971, a belated response to the injustice perpetrated by the internment of Japanese Americans during WWII. As the Judge points out, Congress changed the law but didn’t outlaw detention, just shifted the power from the President back to Congress. Detention was still allowed “pursuant to an Act of Congress.”
This point still has great significance. In 2011, Congress passed the NDAA (National Defense Authorization Act) and expanded the possibility of indefinite detention of American citizens without trial.
In fact, when I debated Senator McCain on the Senate floor, I was incredulous. I asked, “Does this mean an American citizen could be detained indefinitely and sent to Guantanamo Bay without a jury trial?” McCain replied, “If they’re dangerous.” Aghast, I shot back, “Sorta begs the question, doesn’t it? About who gets to decide who’s dangerous and who’s not?”
In trying to fix this language, I begrudgingly supported the Feinstein-Lee amendment, even though it still contained the language allowing detention “pursuant to an Act of Congress.” In 2013, I fought to alter the language by inserting the words “consistent with the Constitution” to make it clear that detention would require a jury trial.
My understanding was that the language was acceptable to promoters of the amendment, but we never got a chance as Senator Harry Reid killed the filibuster by breaking the rules of the Senate. Previously, it required a two-thirds majority vote to change Senate rules; Harry Reid used the nuclear option to change the rules with only a simple majority.
Caught up in the melee was our effort to kill indefinite detention. Harry Reid quashed all amendments, and we are forced to wait for another day to take up the fight.
Maybe the biggest constitutional question of our day is whether or not a judge’s warrant is required for records held by a third party such as a bank or an Internet provider and whether a single warrant can apply to millions of individuals’ records.
Edward Snowden revealed that the government was using a single warrant, issued by a secret court, to obtain billions of records from millions of individuals. At least one federal judge has declared this practice unconstitutional.
Judge Napolitano unravels the labyrinthine assault on civil liberties that has taken place as a side effect of the War on Terror. The Judge describes the anomaly that allows a secret court to address these issues, despite the fact that the FISA Court lacks the two sides that typically gather in opposition in a courtroom. As Judge Napolitano puts it, the “lack of adversity corrupts the truth-seeking function of the courts of law.”
Senator Ron Wyden and I are attempting to correct this problem by making it easier to establish standing to protest court orders from the intelligence community. Our legislation also would allow communication companies to appeal secret FISA Court rulings to a non-secret federal appeals court and ultimately to the Supreme Court.
The hardest thing for citizens to realize is that we must jealously guard our constitutional liberties, especially in times of war. When fear and vengeance arise, precisely then we must be especially vigilant of our Bill of Rights. Currently, the majority in Congress give prejudice to security over liberty, a dangerous situation.
Judge Napolitano gets it, and I hope his new book will help the American public to get it; to wake up and mount a defense of our most precious liberties before it’s too late.
Sen. Rand Paul (R-KY)