ANDREW NAPOLITANO (CON’T): Fast forward to 9/11. We all know what happened. If you lived in New York, as I do, and some of my friends and colleagues who are in this room did, you will never forget that day. And you will never forget the loss of innocent lives that happened on that day. If you study the government the way I do, you will never forget what the government did in response to it. One of the pieces of legislation that the government enacted — curiously, it was drafted before 9/11, but that’s another story — is the PATRIOT Act. The PATRIOT Act, in my view, is the single most abominable, hateful, unconstitutional piece of legislation enacted, including the Alien and Sedition Acts. [a small smattering of applause]

The PATRIOT Act lets federal agents write their own search warrants. Without going to a judge, without having to present probable cause, and serve those search warrants on financial institutions. Now, you may think, “Okay, they can’t knock down my door, they can only go to my bank.” Well, that depends on how you define “financial institution.” Because in the Intelligence Authorization Act of 2004, enacted and signed into law on December 13, 2003. How do I remember the date? You’ll remember the date because something happened on December 13, 2003 so calamitous that nobody would recognize that this piece of legislation was signed. The Intelligence Authorization Act of ’04, signed by President Bush on December 13, ’03. He signed it on that day because he knew about this thing that had happened, he knew it would be a day before we all learned what this thing was, so his signature would go unnoticed and indeed it was unnoticed for a couple of months until a reporter for the New York Times was searching the federal register and found in this 400-page statute, which basically distributes federal funds to the intelligence agencies of the federal government, a definition of ‘financial institution.’

You tell me if you think these are financial institutions. A bank? All right. A trust company? Of course. A credit union? Yes. Now we get into the crazy area. A bodega. A car dealership. A hotel. A casino. A restaurant. A jewelry store. A hospital. An HMO. A doctor’s office. A dentist’s office. A real estate office. Your lawyer’s office. Your telephone company. Your computer server. And that great financial institution to which we would all repose our fortunes? The post office! So by changing the meaning of the phrase “financial institution” from the commonly understood one that we all pretty much know what that is — a place where you put money, where you write checks, where you go to get your money back, where you maybe make an investment — to change to this broad array of things. The government without debate and without a voice vote. Ask any member of Congress who represents you in any state of the union how they voted on the Intelligence Authorization Act of ’03 [sic]. Maybe you don’t remember it. Didn’t read it. See? There’s no record on how they voted on it. Permits federal agents to write their own search warrants and serve them on any of those entities. And when they serve those self-written search warrants they tell the recipient, “You cannot tell anyone we are giving you this search warrant.” Why? Because the federal PATRIOT Act makes it a crime to tell anyone you have received a self-written search warrant! And anyone means anyone! You can’t tell your spouse in the bedroom! You can’t tell your priest in confessional! You can’t tell your lawyer in her or his office! You cannot even answer truthfully under oath in a courtroom that you received a self-written search warrant or the government has the right to prosecute you for telling anyone!

All right. Catch my breath a bit. Two FBI agents walk into a library in Bridgeport, Connecticut, and one of them has a self-written search warrant under his arm. I know this sounds like a joke. “Two guys walk into a bar and one of them has a duck under his arm.” [laughter] It’s an old joke, it’s not appropriate for this audience. But [chatter] walk into this library in Bridgeport, Connecticut and they hand the librarian a self-written search warrant. They want to know who’s reading the books in the library. She says, “Oh, come on.” The government owns the building. The government owns the books. The government bought the books. How could the government possibly have an interest in knowing who read the books? And she says to this guy, “Who the hell are you?” She was 86 years old. The FBI agent, in his twenties, said, “I’m with the FBI and you can’t tell anybody that I’m giving you this search warrant.” She says, “Oh, yeah?” She hands the search warrant to her 76 year old assistant. [scattered laughter] Whereupon the government prosecutes these two senior citizens [an audience member: “What?”] for violating the PATRIOT Act.

We fast forward a year to a public courtroom in Bridgeport, Connecticut, where a federal judge says to the U.S. Attorneys, “Do you really want to go forward with this? Because if you do, you see this? This is a 25-page opinion declaring the PATRIOT Act unconstitutional.” Suddenly the charges against these two librarians were dismissed. And the PATRIOT Act lives to fight another day. In fact, the PATRIOT Act has been found unconstitutional by six judges in six published opinions… [slowly] and none of those opinions was appealed by the federal government for fear that an appellate court would find it unconstitutional, and then its unconstitutionality would have a broader sting, because one federal judge can disagree with another federal judge, but trial judges cannot disagree with their bosses, the appellate courts. I know that personally. Trial judges have to follow what the appellate courts tell them to do. So you cannot find an appellate level case construing the PATRIOT Act.

So here we are. We fought a revolution against a King and his soldiers in large measure because the soldiers were allowed to write their own search warrants. Two hundred years later we elect a government and the government authorizes the federal agents that are supposed to protect our freedom and our safety and authorizes them to write their own search warrants. This is not a happy time for those of us who watch these things that the government does.

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