April 07, 2005,
Andrew Napolitano has embarrassed himself enough times that one would think Fox News might have him do a little homework before passing off still more abject idiocy as biting legal analysis. But no, he continues to outdo himself.
When last we encountered this former New Jersey state jurist turned celebrity "senior judicial analyst," he was hopelessly mangling the Lynne Stewart case. Now, the "Judge" has trawled back to the Patriot Act debate the scene of yet another of his prior train wrecks.
Tuesday night, on the cable powerhouse's prime time O'Reilly Factor, Napolitano managed in less than five minutes to contort beyond recognition the jurisprudence of search-and-seizure, theft, and electronic privacy, while for good measure libeling the practices and common sense of FBI agents. Caution: You haven't imbibed enough gin to match the vertigo of entering this "No Spin Zone."
SNEAK-AND-PEEKNo description would do justice to this latest from the author of the aptly titled Constitutional Chaos. Here is Napolitano in his own words:
O'REILLY: ... Let's get to the PATRIOT Act. Tell me what this sneak and peek is. What is sneak and peek?
Where to begin? First, leaving aside how silly it obviously is to compare agents executing a court-authorized search warrant to burglars, a sneak-and-peek search is, in fact, the polar opposite of a common burglary. A burglar enters your home to rob you. In stark contrast, the warrant here is called "sneak-and-peek" because, just as O'Reilly implied, agents sneak into a home (rather than loudly announcing their presence or even breaking in, as they do with regular search warrants), and peek around that is, they generally don't take anything (unlike the execution of a regular search warrant, during which lots of a person's belongings are often seized).
The whole point of sneak-and-peek is to gather information without letting the bad guys know FBI agents were there. If important items that a subject is likely to miss like his checkbook are removed, then the aim of the sneak-and-peek technique is destroyed. Furthermore, agents may not unilaterally "plant a chip in your computer" (by which I assume Napolitano means a device that allows future computer use to be monitored or existing computer data to be seized). Federal agents need a warrant, pre-authorized by a court finding of probable cause, to do that.
It may be news to the senior judicial analyst, but the Patriot Act did not give us sneak-and-peek warrants. They have been around for decades. Another newsflash: Such techniques are exactly how the FBI goes about proving the existence of a criminal or terrorist enterprise.
Typically, by such methods as covertly listening to phone conversations and secretly looking around a subject's home with court permission agents gather enough information to establish that an individual is up to no good. Having gotten to that point, the last thing the agents want to do (or that the public should want them to do) is swoop in and make an immediate arrest. To the extent it is safe to do so (e.g., if there is no imminent danger of a bombing or a murder), investigators prefer to follow the known criminal or terrorist around to determine where he goes and with whom he meets.
Later, when you pick up your local newspaper and read that the FBI has uncovered a makeshift bomb factory or arrested the entire hierarchy of a mafia family (instead of just one or two low-level button-men), that is usually how it happened. Extending investigations to take out more and higher-ranking miscreants is what makes the public safer.
Sneak-and-peek searches have thus long been unremarkable. After all, given that the law allows agents with a search warrant to take a suspect's stuff, why should anyone be offended by the less intrusive permission to look at a suspect's stuff?
DELAYED NOTIFICATIONIt should come as no surprise, then, that what's called "delayed notification" has also been permitted for years. To elaborate, when agents execute a search warrant, federal law requires them to leave behind a notice, informing the subject that a search has occurred and providing an inventory of any items seized. But this, naturally, would destroy sneak-and-peek as a valuable investigative technique. Courts, therefore, regularly permit the required notice to be delayed until a later time.
Just imagine if agents had to leave a note behind that said: "Dear Mr. Terrorist, We came by the house to have a look around today. Sincerely yours, the FBI." Mr. Terrorist is then promptly going to stop using the phone and attending meetings with other terrorists except perhaps emergency contacts to tell them they are under investigation and encourage them either to flee or accelerate whatever attack is being planned. Consequently, the FBI is going to stop learning about other operatives and locations key to a network that might be working to kill Americans.
If this has been going on for years, you ask, what does the Patriot Act have to do with it? Well, prior law did not have consensus about when and how notification could be delayed federal courts throughout the country permitted it, but under a hodgepodge of different rules. All the Patriot Act did in this regard was impose a uniform standard, prescribed by Congress rather than fashioned ad hoc by various courts, to be followed by all federal judges throughout the country. And it bears remembering: Notice here is merely being delayed, not cancelled. Eventually, when it would no longer compromise their investigation to do so, the agents must still inform the subject that a search took place. It's hard to see how this could be more sensible. Far from provoking shudders that the sky is falling, it should be uncontroversial.
And I don't know how many FBI agents the "Judge" bumped into while presiding over state lawsuits in New Jersey, but I met a fair number during a couple of decades in federal law enforcement, and I can tell you that, far from disliking sneak-and-peek warrants, agents love them. This tool helps the FBI do the job we all want it to do. That's why it is almost always the FBI agent, not the prosecutor, who proposes its use.
Similarly moronic is Napolitano's claim that sneak-and-peek warrants are particularly "dangerous." Almost all search warrants especially in violent crime or terrorism investigations are fraught with peril. That's why we admire the brave men and women who serve in law enforcement. They willingly enter places we wouldn't dare go into in a million years.
There is no more danger that agents will be mistaken for burglars in the sneak-and-peek context than in any other search begun when the subject is not home. What is especially dangerous for agents, though, is when they are required, under federal law, to knock and announce their presence before executing the regular search warrants that Napolitano likes so much. That rule has been known to get agents shot at, in addition to giving criminals the opportunity to flee or destroy evidence before the agents can get in the door.
SLANDERING THE FBIAs the interview unfolded, it emerged that Napolitano had just been getting warmed up. Thus:
O'REILLY: Sneak and peak is no warrant, they can look in your house
It is hard to quantify how galactically inane this is. To begin with, federal agents absolutely, positively are not permitted by the Patriot Act, the Electronic Privacy Act, or any other federal law unilaterally to write a search warrant that allows them to enter a subject's home. Only judges are empowered to issue search warrants. Absent a few firmly established contingencies (such as "exigent circumstances") expressly recognized by the U.S. Supreme Court, agents may not enter a person's home to conduct a search without a warrant from a judge. Period.
And beware Napolitano's repeated suggestion that not just any house, but your house, is threatened by the FBI. Here, he parrots fear-mongering by the ACLU and libertarian extremists, portraying ordinary, law-abiding Americans as if they were now living in a police state, subject to arbitrary governmental intrusion. It is a slander.
In the criminal context, agents may not get a search warrant without first showing a judge evidence that rises to the level of probable cause to believe a crime has been or is being committed. In the national-security context, the agents must first show a judge evidence rising to the level of probable cause to believe the subject is an agent of a foreign power (such as al Qaeda or Iran), or is otherwise engaged in spying or terrorism. Unless you think there's information out there that could plausibly cause someone to mistake you for a criminal or a terrorist, this search authority is something you should want for your protection, not fear for your privacy. Although one would never know it from media commentary by Napolitano and others, the FBI does not work for itself. It is a public agency. It works for us. It is not trying to thwart terrorists for sport. It is doing it at our insistence and for our protection.
NATIONAL-SECURITY LETTERSContrary to Napolitano's bluster, a national-security letter (NSL) is not a search warrant and has utterly nothing to do with searches conducted in the home. To be sure, there is spirited dispute about NSLs for other reasons. But Napolitano's hallucination that they are being used as search warrants is not any part of the current debate, much less "the principal objection to the PATRIOT Act" at least among those who have a clue.
With respect to items in your home, you have a legitimate expectation of privacy, which federal law recognizes by presumptively requiring agents to get a search warrant from a judge before seizing them. To the contrary, NSLs do not involve private items in a person's own possession; they relate, in very limited instances, to information in the hands of third parties such as phone records, bank records, and the like, in the files of service providers. The Supreme Court reaffirmed over a quarter century ago (in Smith v. Maryland (1979)) that records in the hands of third parties do not trigger any legitimate expectations of privacy. How could they when, by definition, a third party has free access to them?
Consequently, the government has for decades been able to obtain such information with ease. Routinely, this is done by grand-jury subpoena, without any court supervision. To move things along in cases where speed may be important, and because these records are not private, Congress has also permitted the FBI in certain contexts to compel their production by "administrative subpoena" (i.e., a subpoena the FBI can issue on its own authority, without relying on the compulsive power of the grand jury or the federal courts). Finally, in the narrow arena of national security, even before 9/11, the FBI was allowed to compel this type of information by a mere NSL if it reasonably suspected a person of espionage.
The Patriot Act extended NSL authority to investigations in which such third-party records would be relevant to an ongoing terrorism investigation (but NSLs may still not be used in the ordinary criminal cases that comprise the vast majority of federal law enforcement's workload). Whether this authority was really necessary to national security (given that the same information is easily acquired by subpoena) and whether seeking it was tactically wise (given the ill-informed media blowback that has ensued) are questions that can reasonably be debated. Indeed, FBI Director Robert Mueller told Congress on Tuesday that administrative subpoenas would be preferable to NSLs since the latter are limited in scope and tough to enforce.
But one thing can be said with certainty: An NSL is nothing like "self-written warrant." Not even close. It is the height of irresponsibility for a TV judge to say otherwise to millions of viewers in the middle of an important national debate about public safety.
Napolitano's intimation, moreover, that "judicial filtering" is required by the Constitution before any kind of governmental search or information gathering can properly occur will no doubt come as a surprise to any American who has recently tried, for example, to get on an airplane, enter a public building, submit a tax return, obtain a Social Security card, or get a small-business or housing loan. Government probes us all the time without court supervision. What the Fourth Amendment forbids is unreasonable searches not any search conducted without a judge's blessing. Whether a court warrant is a prerequisite to a search depends on the circumstances i.e., is there an expectation of privacy that society would recognize as reasonable, and is the proposed intrusion by government agents unduly extensive?
MORE SPINNINGIn any event, Napolitano's ignorant blather proceeded apace, through the end of O'Reilly's interview. He told viewers, for example, that Congress had not been permitted to read the Patriot Act before voting on it. That's ridiculous members of Congress can't be forced to vote on anything (as we have seen repeatedly in the context of judicial nominations), and if they believe their leadership has scheduled a vote in undue haste, they can sidetrack it procedurally or vote "no." Many may well have voted on it without taking the time to read it, as they do with many bills. But not permitted? That's nonsense.
Napolitano further asserted that the Patriot Act had resulted in no "successful prosecutions ... for terrorist acts un-reversed by appellate courts." Memo to the "Judge": Here in America, there have thankfully been no "terrorist acts" to prosecute since the Patriot Act was passed. If you meant instead to say "crimes related to terrorist activity" there have been many such successful prosecutions. I'd ask for a clarification, but who knows what you might say next.
And so it went. Mr. Napolitano seems like a nice enough man, and maybe Fox News could encourage him to do more of those light, bubbly morning interviews or something. But it should revoke his license to mutilate the federal law. And O'Reilly should correct the record. If the point of bringing Napolitano to the "No Spin Zone" was to "look out for the folks" so they know what's going on with the Patriot Act, the folks' heads are now officially spinning.
Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.