Nat Hentoff
Fierce Watchdog of the Constitution
Fri Aug 1 18:04:54 2003
64.140.158.181
Fierce Watchdog of the Constitution
'Civil Liberty Is Why We Have This Country'
Nat Hentoff August 1st, 2003
Judge
Andrew Napolitano: "There is no basis in law or history" for the president's
action.
(Photo: Sylvia Plachy)
http://www.villagevoice.com/issues/0332/hentoff.php
n which broadcast or cable television channel was this said by a regular
commentator?
"The attorney general needs to follow the Constitution, whether the Congress
authorizes him to or not. And then we will have the rule of law, and civil
liberties upheld, and security as well. . . . The bottom line is the
government needs to preserve civil liberty. That's why we have this country."
The cable channel is Fox Television News, much lambasted by liberals, most of
whom don't watch it. On that network, there is indeed an array of bristling
conservative commentators. But also featured in the evenings on Brit Hume's
Special Report are two of the most incisively knowledgeable Washington
reporters in any medium—Jim Angle and Carl Cameron.
But what makes Fox unique in all media is its regular senior judicial analyst,
Judge Andrew Napolitano, who, so far as I know, has the only regular
Constitution beat—with emphasis on the Bill of Rights—anywhere in the news
media. And that includes newspapers.
From 1987 to 1995, Napolitano was a judge on the Superior Court of New Jersey,
hence the continuing honorific. He also lectures on constitutional law, and on
June 27, his blistering censure of George W. Bush—" 'Enemy Combatants' Cast
Into a Constitutional Hell"—appeared on the Los Angeles Times op-ed page. He
wrote:
"The president—using standards not legislated by Congress, not approved by any
court, and never made known to the public—has claimed the right to incarcerate
enemy combatants until the war on terrorism is over. But when will that be? .
. . Who is an enemy combatant? Today, it can be anyone the president wants.
And that is terrifying."
On the same subject, during his commentary on Fox, Napolitano emphasized,
"There is no basis in law or history for the president of the United States
taking away all the person's constitutional rights. . . . National defense
implies not just defense of real estate, but defense of our values, and our
most basic value is the rule of law."
This protector of the Constitution, in the tradition of James Madison, is
heard daily on Fox somewhere between 5 and 6 p.m. on John Gibson's The Big
Story, as well as often on Bill O'Reilly's bare-knuckles evening hour, where
he provides O'Reilly with a much needed education on civil liberties, to
little discernible effect. Napolitano is also frequently on mornings during
Fox & Friends, and elsewhere on Fox whenever there's a breaking story
requiring legal analysis.
The judge is like the late Supreme Court justice William O. Douglas, in that
no footnotes are needed when hearing or reading him. He speaks with
uncluttered, precisely knowledgeable passion. But how did he become the most
insistent paladin of individual liberties and rights in the news media?
As a judge in New Jersey, Napolitano told me, he saw what some police and
prosecutors do to bypass, to say the least, the rule of law. Being on the
bench proved to be a more illuminating postgraduate education on abuses of the
Constitution in everyday life than what he had learned in law school.
I thought of the doughty judge when Attorney General John Ashcroft—addressing
editors, publishers, television officials, and other news professionals on
June 19 at an Aspen Institute conference on "Journalism and Home
Security"—rather plaintively said:
"We need the help of the news industry, the fourth estate, to inform citizens
about the constitutional tools and methods being used in the war against
terror. We need the media's help, for instance, in portraying accurately the
USA Patriot Act."
Well, Judge Napolitano is certainly doing the best he can to expose the
dangerously unconstitutional tools in the attorney general's arsenal.
For instance, the judge has instructed John Ashcroft, on Fox television, that
"the Constitution makes no exceptions in prohibiting violations of
'fundamental liberties of citizens or non-citizens' on American soil." The
judge was referring to the scathing indictment, by the Justice Department's
own independent inspector general, of Ashcroft's dragnet roundup of
non-citizens in the weeks after 9-11. (That report has been detailed in the
Voice in my columns and Chisun Lee's characteristically perceptive reporting.)
Praising the inspector general's uncovering of the attorney general's lawless
"tools and methods" in those raids that presumed the imprisoned to be guilty
until proved innocent, Judge Napolitano told Fox viewers:
"You might think [the inspector general's report] came from Amnesty
International or the ACLU." (Elsewhere on Fox, Bill O'Reilly has long been
conducting his own unfair and utterly unbalanced war on the American Civil
Liberties Union.)
While Napolitano has indeed been informing American citizens about what's
dangerous in the Patriot acts—as well as about Ashcroft's defiance of the Bill
of Rights in his executive orders—the news media, in all its forms, has not
been anywhere near as sustained and persistently analytical as Napolitano in
educating the public. Most citizens are largely uneducated about their own
constitutional rights and liberties, let alone those of others. And
journalists are—or should be—educators on what the rule of law is, and
specifically how it is being abused by government in Washington and elsewhere.
A month after the September 11 terrorist attacks, Judge Napolitano wrote in
the New Jersey Law Journal: "In a democracy, personal liberties are rarely
diminished overnight. Rather, they are lost gradually, by acts of well-meaning
people, with good intentions, amid public approval. But the subtle loss of
freedom is never recognized until the crisis is over and we look back in
horror. And then it is too late."
Never before in our history—in view of the government's unprecedentedly vast
surveillance technology and other resources—have we needed more ceaseless
watchdogs over the Constitution. Why, throughout the media including in daily
newspapers, are there not more Judge Andrew Napolitanos? See you in a month.
Read more of the Voice's coverage of the attack on civil liberties in
post-September 11 America.
Recent Nat Hentoff columns
http://www.villagevoice.com/issues/0332/hentoff.php
# Fierce Watchdog of the Constitution 'Civil Liberty Is Why We Have This
Country'
# Who Made George W. Bush Our King? He Can Designate Any of Us an Enemy
Combatant
# Sandra Day O'Connor's Elitist Decision Another Three-Card Monte Game
# What the Supreme Court Left Out The Smoking Gun in Grutter v. Bollinger
# The Once and Former Rule of Law Could Ashcroft Pass a Quiz on the
Constitution?
# Ashcroft in Conference 'Let's Not Let Them Get Johnnie Cochran on the Phone'
# Justice Denied at the Source Considered Guilty Until Proved Innocent
# U.S. Black Leaders Confront Mugabe Policemen's Feet on Demonstrators' Heads
# Ashcroft Defied on City Hall Steps Telling Ray Kelly to Protect the
Constitution
# 100th Civil Liberties Safe Zone! Hawaii Is the First State to Defy Ashcroft
http://www.villagevoice.com/issues/0332/hentoff.php
