In this incisive and insightful book, Judge Andrew P. Napolitano peels back the legal veneer and shows how politicians, judges, prosecutors, and bureaucrats are trampling the U.S. Constitution in the name of law and order and fighting terrorism. Napolitano reveals how they:
- silence the First Amendment
- shoot holes in the Second
- break some laws to enforce others
- entrap citizens
- steal private property
- seize evidence without warrant
- imprison without charge
- kill without cause
Pundits on the right, left, and center have praised Constitutional Chaos for its penetrating examination of our rights and liberties in the post-9/11 world.
"Has the war on terrorism taken away some of your rights? In a non-ideological way, Judge Andrew P. Napolitano answers that crucial question. This book will open your eyes."-Bill O'Reilly
"This book is a wake-up call for all who value personal freedom and limited government."-Rush Limbaugh
"In all of the American media, Judge Napolitano is the most persistent, uncompromising guardian of both the letter and the spirit of the Constitution. . ."-Nat Hentoff
Judge Andrew P. Napolitano is Fox News Channel's senior judicial analyst, seen by millions on The Big Story with John Gibson, The O'Reilly Factor, Fox and Friends, and other shows. His articles and commentaries have been published in the Wall Street Journal, Los Angeles Times, St. Louis Post-Dispatch, Newark Star Ledger, and other national publications.
CONSTITUTIONAL CHAOS
WHAT HAPPENS WHEN THE GOVERNMENT BREAKS ITS OWN LAWSBy ANDREW P. NAPOLITANONELSON CURRENT
Copyright © 2007 Constantine C. Menges
All right reserved.ISBN: 978-1-59555-040-8Contents
Introduction: Breaking the Law......................................ixPART 1: Rights and Liberties1. Breaking the Law To Enforce It...................................12. Attacking the Innocent...........................................223. Creating Crime...................................................334. Grabbing Guns, Endangering Citizens..............................505. Filching Property................................................656. Gagging Free Speech..............................................797. Bribing Witnesses, Buying Convictions............................948. Assaulting the People............................................108PART 2: Wake-Up Call9. Personal Odyssey.................................................125PART 3: The Hard Test: The War on Terror10. The Justice Department's Terror Tactics.........................13311. Throwing Away the Jail House Key................................15312. Don't Go to Guantanamo..........................................170PART 4: Prospects for Liberty13. What Can We Do?.................................................185Appendix: Introduction to the U.S. Constitution.....................191The Constitution of the United States...............................198Acknowledgments.....................................................221Index...............................................................223
Chapter One
BREAKING THE LAW TO ENFORCE IT
Amazingly, infuriatingly, incredibly, the government will lie, cheat, and steal in order to enforce its own laws. And the courts continually give law enforcement a free pass to engage in these practices.
The landmark 1952 U.S. Supreme Court case of Frisbie v. Collins established the principle that a court has the power to put a defendant on trial, even if law enforcement broke the law in bringing the defendant into the court's jurisdiction. It sounds inconceivable, but the Supreme Court has authorized the police to break the law, including abduction and kidnapping, in order to enforce the law.
ILLEGAL ABDUCTION
On February 19, 1942, police officers in Michigan asked their colleagues in Chicago to arrest one Shirley Collins. Chicago police officers met Collins at a bus station in Chicago, where they arrested and handcuffed him.
Complying with the request of the Michigan police, the Chicago police forcefully took Collins and held him in their custody. When he refused to answer questions until he could consult a lawyer, the Chicago cops and their Michigan colleagues, who had by now joined them, attacked Collins and beat him with blackjacks. Additionally, the Michigan police officers told the Illinois authorities not to let Collins consult with a lawyer or anyone else.
The next day, Collins requested a lawyer and was once again attacked by police officers until he was beaten into unconsciousness. The following day, the Chicago Police Department handed Collins over to the Michigan police officers, who carried him to Flint, Michigan, to face trial.
There is no question about the fact that the Michigan police kidnapped and abducted Collins. The entire sequence of events demonstrates that those law enforcement officers had utter contempt for the law they swore to uphold. Neither Illinois nor Michigan had a warrant for Collins's arrest. The Michigan police never made a request upon the Governor of Illinois for Collins's apprehension as a fugitive and for his extradition to authorities in Michigan.
Kidnapping is a federal crime, and the Anti-Kidnapping Act makes it illegal when an individual is "unlawfully seized, confined ... kidnapped, abducted or carried away by any means whatsoever" across interstate lines. The federal kidnapping crime applies to both ordinary citizens and officers of the law: No exception is made in the statute for either state or federal law enforcement officers.
Accordingly, the Illinois and Michigan police committed a federal crime-kidnapping and abducting Collins from Illinois to Michigan-for the sole purpose of securing his presence in a courtroom in the state of Michigan.
Amazingly, the Supreme Court found absolutely no problem with this, adhering to the principle of male captus, bene detentus. That principle-translated as "badly captured, well detained"-permits the government to bring any defendant to trial regardless of whether he was improperly seized. According to the court, the government fully adhered to the Constitution's due process requirement by convicting Collins after a fair trial.
In the words of the Court of Appeals for the Sixth Circuit, the "practical effect" of the court allowing the kidnapping and abduction of Collins was "encouragement to the commission of criminal acts by those sworn to enforce the law." Essentially, the police are authorized to take any illegal step to bring a defendant into the courtroom. But due process doesn't start with a fair trial; the government's obligation to provide due process is triggered when police first make contact with a person.
The Supreme Court misconstrued due process, stating that there is no constitutional requirement that a court "permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will." Being "brought to trial illegally" is different than being "brought to trial against his will." (Obviously, Collins was brought to trial against his will. What defendant would freely choose to go on trial for murder?) The Supreme Court ignored the exact purpose of federal laws prohibiting kidnapping and the constitutional right not to be confined unlawfully. If illegally abducting and kidnapping Collins doesn't constitute illegal imprisonment, what does?
The Supreme Court improperly allowed the police to put themselves above the law. When law enforcement uses force and violence illegally to bring a defendant into the courtroom, it is the court's duty to hold the police accountable for violating the defendant's constitutional rights.
In the criminal justice system, sometimes a "guilty" defendant walks free because the police illegally violated his constitutional rights. While this is unfortunate, the entire system would fall apart if courts failed in their responsibility to ensure that law enforcement does not place itself above the law. The police need a disincentive to keep them from breaking one law in order to enforce another. Regardless of whether Collins received a fair trial, his presence inside the Michigan courtroom was a result of the Illinois and Michigan police committing federal crimes.
FOREIGN FOLLIES
There is no limit to how far law enforcement will go in disregarding the law to promote the goal of apprehending criminals. Typical law enforcement behavior goes well beyond illegally abducting and kidnapping an individual so that he can be brought from Illinois to Michigan. The federal government has given itself the power, and the Supreme Court has not questioned that power, to invade the territorial integrity of a sovereign nation in order to abduct another country's citizen.
Humberto Alvarez-Machain is a physician, and a citizen and resident of Mexico. The United States Drug Enforcement Administration (DEA) had Machain indicted for his alleged participation in the murder and kidnapping of a DEA special agent. Subsequently, the DEA negotiated with a paid informant-an admitted former advisor to a Mexican drug lord-to abduct Machain and bring him to the U.S.
On April 2, 1990, six armed men broke into Machain's medical office, where they punched him in the stomach, shocked him with an electrical apparatus, and injected him with a substance that made him light-headed and dizzy. The men proceeded to fly Machain from Guadalajara, Mexico, to El Paso, Texas, by private plane. Upon arrival, Machain was handed over to the DEA and placed under arrest.
Mexico and the U.S. are each independent and sovereign nations. The two nations signed an Extradition Treaty in 1978 to recognize each other's territorial integrity and to prevent this exact sort of situation. The Mexican government formally protested the United States' kidnapping of Machain and promised to fully prosecute and punish him if he were returned.
The federal government has a constitutional responsibility to uphold treaties that the United States has entered into. The DEA clearly abused its power by refusing to arrange to extradite Machain in accordance with the Extradition Treaty, while making a secret deal with a paid informant to illegally and forcefully abduct Machain. Moreover, the forceful abduction of Machain is not only a violation of the treaty, but also a violation of international law. The United Nations Charter expressly prohibits this exact sort of international forceful abduction, respecting the territorial rights of all sovereign nations.
Machain challenged the government's assertion that U.S. courts have jurisdiction over a defendant who had been brought to the U.S. via an illegal, forceful abduction. A federal district judge in California and the U.S. Court of Appeals for the Ninth Circuit both agreed that the federal courts had no power to try Machain and ordered Machain's repatriation to Mexico. Yet, in a six-to-three decision in United States v. Alvarez-Machain, the Supreme Court ignored the obvious facts and law surrounding Machain's abduction and chose to affirm the principle that law enforcement has unlimited power to take illegal actions to bring a defendant into the jurisdiction and the courtroom.
The Supreme Court's majority concluded that the U.S.-Mexico Extradition Treaty did not expressly prohibit the U.S. government from paying an agent in Mexico to illegally and forcefully abuse, abduct, and kidnap a Mexican citizen who allegedly committed a crime in Mexico. This perverted interpretation of the treaty is utter nonsense; the U.S. is not free to take any action against Machain that the treaty does not expressly prohibit. As Justice Stevens wrote in dissent, the treaty also doesn't expressly prohibit the U.S. from torturing or executing Machain because it is more expedient or efficient than extradition, but that behavior would be unquestionably illegal.
Chief Justice Rehnquist wrote for the court that "whether [Machain] should be returned to Mexico ... is a matter for the Executive Branch." Not so. It is the Supreme Court's job to stop the government when it breaks the law. Justice Stevens' dissent warned against the Court allowing the government to get away with breaking the law due to the "desire for revenge" against Machain's alleged contribution to a DEA agent's murder in Mexico.
Thus, the Supreme Court once again gave law enforcement officers a free pass blatantly to disregard the law-committing an illegal international abduction in a sovereign nation-in order to promote their interest in bringing a potential criminal to justice. When the government does this, due process is treated as a myth, and the courts turn a blind eye to the fact that the government breaks the law while trying to enforce the law. To the Supreme Court, all is dandy once the defendant arrives in the courtroom for his trial.
UNIVERSAL JURISDICTION
When the federal government breaks the law to bring a suspected criminal into the United States, the nation where the apprehension was made does not always protest as Mexico did with the abduction of Machain. In some situations, the federal government uses the threat of diplomatic might so that little attention is drawn to the illegal capture of the suspect.
Ramzi Ahmed Yousef, the mastermind of the February 1993 bombing of the World Trade Center in New York City, had eluded American law enforcement's capture for two years. On February 6, 1995, the FBI received information from an informant that Yousef would be arriving in Islamabad, Pakistan. The DEA and the State Department's Bureau of Diplomatic Security proceeded to raid Yousef's hotel room and brought him into the custody of the local Pakistani police. Without any legal proceeding or process, the Pakistani government secretly and informally surrendered custody of Yousef to the FBI. Yousef was then flown back to New York for trial.
The federal government, in removing Yousef from Pakistan without formal extradition proceedings, undoubtedly violated international and U.S. law. The government had significant leverage to manipulate Pakistan into illegally handing Yousef over in secret, because public extradition proceedings would have been a disaster with the Pakistani government trying to remain on good terms with Islamic extremists within its borders. And the Pakistani government-which is dependent on the U.S. for its security-wouldn't dare stand in the way of the U.S. government's illegal apprehension of Yousef.
The courts, once again, refused to impinge on the federal government's power and invented an absurd rationale for upholding the legality of Yousef's apprehension. Defying logic, Judge Kevin Thomas Duffy, a federal district judge in New York, ruled that Yousef was "`found' within the United States"! Since when is Islamabad, Pakistan, considered within the United States?
According to Judge Duffy, expounding on the concept of "universal jurisdiction," the whole world is considered to be within the United States! The Court of Appeals for the Second Circuit affirmed this absurd ruling, and the Supreme Court declined to hear the case.
Law enforcement and the courts must obey the law when they enforce the law, and even the most dangerous criminals are entitled to due process under the Constitution. A simple extradition request would have brought Yousef here legally and avoided the embarrassment and illogic of a judicial ruling standing for the principle that the "whole world is the United States."
LYING FOR A LIVING
Not only does the Supreme Court turn a blind eye when the government illegally kidnaps and abducts an individual to bring him into the courtroom, but the court has also repeatedly endorsed law enforcement's power to lie, cheat, and coerce when gathering evidence of crimes.
The Supreme Court upheld the police's power to lie, deceive, misrepresent, and coerce in the 1969 case of Frazier v. Cupp. The police suspected Martin Frazier and his cousin Jerry Rawls of murder. Before taking Frazier into police headquarters for questioning, the police asked him a few routine questions, including where he was on the night in question. Frazier admitted to being with his cousin Rawls, but denied being with the victim or any third person. The police began vigorous questioning after incompletely advising Frazier of his constitutional rights.
After Frazier continued to deny being with anyone but Rawls, his interrogators began a coercive and deceptive lying campaign. The officer falsely stated that Rawls had been brought into the station and that he had confessed to the murder. To try to prompt Frazier to talk, the officer began a tactic of sympathetically suggesting that the victim's homosexual advances toward Frazier had provoked a fight with Frazier and Rawls, and police and prosecutors understand that. The interrogator's lie caused Frazier to begin telling his story, but eventually he told the officer, "I think I had better get a lawyer before I talk any more. I am going to get into more trouble than I am in now." The interrogator continued the questioning and completely dismissed Frazier's request for counsel and his right to silence, replying, "You can't be in any more trouble than you are in now." Eventually, a full confession was obtained and was used against Frazier to convict him of murder.
There are limits to what the police can do to obtain a conviction, and despite his guilt, Frazier's interrogator clearly crossed that line.
In 1892, the Supreme Court in a case called Bram v. United States established the rule that a confession "must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." The police indisputably misrepresented the facts in falsely stating to Frazier that Rawls had confessed to the murder. Frazier was also lied to when the interrogator denied his right to counsel, as he was incorrectly told that confessing wouldn't get him into any more trouble than he was already in.
Because the police used illegal tactics to coerce Frazier into a confession, Frazier's statement cannot be considered voluntary. Since involuntary confessions are inadmissible, the jury should never have heard Frazier's confession.
Yet, the Supreme Court ruled that the statement could be used against Frazier. Justice Marshall, writing for the court, admitted, "the police misrepresented the statements that Rawls had made." Furthermore, Justice Marshall went as far as stating that the interrogator's lies and representations were "relevant"! So, why didn't the court throw out Frazier's confession? According to the court, the misrepresentations were "insufficient in our view" based on "the totality of the circumstances." Rather than looking at the facts and explaining their conclusions, the court went no further than such convoluted legalistic phraseology. The court never stated why the interrogator's lies were "insufficient" and what other "circumstances" were used to comprise the "totality."
Put simply, the Supreme Court sent a message to law enforcement officers around the country that it was acceptable to lie and misrepresent facts and evidence in order to coerce a suspect into making a confession.
Justice Marshall's opinion makes it clear that the Supreme Court will look the other way when the police do not conduct themselves properly. The court even dismissed Frazier's request for a lawyer, stating that the interrogator probably took the request "not as a request that the interrogation cease but merely as a passing comment." Did the court really believe that "I had better get a lawyer before I talk any more" was "merely ... a passing comment"? Why can't the court abide by its constitutional duty and honestly concede that police deception went too far?
In 1977, in the case of Oregon v. Mathiason, the Supreme Court once again sanctioned police deception. The victim of a burglary told an Oregon police officer who was investigating a crime that man named Carl Mathiason might have been involved. The police officer tried to find Mathiason with no success and left his business card at Mathiason's apartment with a note asking him to call because "I'd like to discuss something with you." Mathiason returned the phone call, and the officer asked when it would be convenient to meet.
(Continues...)
Excerpted from CONSTITUTIONAL CHAOSby ANDREW P. NAPOLITANO Copyright © 2007 by Constantine C. Menges. Excerpted by permission.
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