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Like sheep led to the slaughter: Judge Andrew Napolitano's latest work, A Nation of Sheep, summarizes the relentless abuse of God-given natural rights tolerated by fearful and apathetic Americans.

A Nation of Sheep, Andrew P. Napolitano, Nashville: Thomas Nelson, 2007, 240 pages, hardcover, $22.95. (To order online, go to, then click on "new products.")

No one has distilled the proper relationship between man and government as eloquently or concisely as Thomas Jefferson in The Declaration of Independence. The "self-evident" truth of unalienable God-given natural rights that precede the state is the most powerful tool for the defense of liberty. This is easily recognized by considering the alternative: if rights are granted by government, then government can just as easily take those rights away, and we have no logical basis to object when they do.

But what are natural rights? The Declaration specifically mentions "life, liberty, and the pursuit of happiness." Though not an exhaustive list, it conveys the general thrust: our natural rights consist of our life and the choices we make, so long as those choices don't violate the natural rights of others. The sole purpose of government is to secure these rights.

Because the Constitution was established to "secure the blessings of liberty," it should not be surprising that the Founders recognized within the Constitution and Bill of Rights various specific expressions of our God-given natural rights such as freedom of worship, freedom of speech, the right of self-defense, and the right of privacy.

It is from the foundational principle of natural rights that Judge Napolitano begins his latest book, A Nation of Sheep. He states that he wrote the book "to generate a debate about freedom." Such a debate is desperately needed given the tsunami of legal innovations perpetrated against our natural rights.


History of Abuses

These abuses, while coming like a flood nowadays, unfortunately have a long history. Napolitano reviews some of that history, beginning with the shameful Alien and Sedition Acts of the founding era. Interestingly, the Alien Acts were never used to apprehend or deport a single foreign national. However, the Sedition Act, ostensibly to prevent libel, was used to prosecute critics of the John Adams administration.

Next, Napolitano outlines the frightening claims to power of President Lincoln, calling him "the Great Perverter of the Constitution" for closing down hundreds of newspapers, unilaterally suspending habeas corpus (the right of a detained person to be brought before a court to determine the legality of the detention), and using the military to arrest and try civilians. World War I brought the Espionage Act where citizens were prosecuted for political opinions. The immediate postwar era had the Palmer raids with mass round-ups of thousands of resident aliens without warrant. During World War II, tens of thousand of citizens and resident aliens of Japanese ancestry were forcibly uprooted and moved to internment camps. The Cold War, Napolitano claims, saw a marked increase in "baseless accusations and secret evidence." However, even though there were abuses during the Cold War period, legal due process was followed to a much larger degree than generally recognized today.

Later, the FBI's COINTELPRO program used warrantless wiretapping and surveillance to generate 500,000 intelligence files on American citizens and organizations. In reaction to this and several Nixon-era abuses of power, Congress enacted the Foreign Intelligence Surveillance Act (FISA). Napolitano argues that even FISA is unconstitutional because "it changed the probable cause of criminality requirement of the Fourth Amendment." However, the FISA at least followed (in its original form) the spirit of the Fourth Amendment by requiring targeted investigations with judicial oversight.

In many of the above cases, war or impending war was used to justify the abuse, demonstrating again the truth of James Madison's observation that "no nation can preserve its freedom in the midst of continual warfare." In other cases, the danger from internal enemies such as foreign agents, anarchists, or communists was cited. These dangers can be significant, but no anarchist or terrorist can dismantle the freedoms we enjoy as Americans. Only our own government, in reaction to real or perceived threats, can do this.

The Post-9/11 Orwellian World

While there is evidence that the Bush administration from the very beginning sought to jettison legal constraints on surveillance power, the drive began in earnest following the September 11 terrorist attack.

Napolitano begins chronicling this post-9/11 drive by first discussing the various abuses of power found in the Patriot Act. Perhaps most alarming is the expanded use of National Security Letters (NSLs). NSLs are essentially self-written search warrants (violating the Fourth Amendment) that gag the recipient under penalty of felony from speaking to anyone, including an attorney (violating the First Amendment).

How effective has the Patriot Act been in the "war on terror"? Though not mentioned in the book, Napolitano has stated during interviews that not a single person has been convicted for terrorism based on evidence obtained from the Patriot Act. Not one! "They've convicted people for drug dealing, for white slavery, for prostitution, and for political corruption. [However], they have not convicted by jury a single human being on the basis of evidence obtained under the Patriot Act."

If the Patriot Act blew holes in the First and Fourth Amendments, the Military Commissions Act of 2006 eviscerated the core legal principle in Western legal tradition, the writ of habeas corpus, which is the right to appeal one's detention before a judge. As Napolitano explains, "[Habeas corpus] is the foundation of all other rights, because without it, we would have no right to challenge unlawful infringements upon our privacy, free speech, religion and due process."

The Military Commissions Act was passed by the urging of the Bush administration after the Supreme Court had shot down several aspects of the administration's self-created military tribunal system. By passing the law, Congress retroactively legalized all the worst features of the original system. This included allowing hearsay evidence and evidence obtained by "enhanced interrogation," as well as prohibiting the federal courts from hearing the aforementioned habeas corpus appeals for anyone deemed an "unlawful enemy combatant."

Though there is some disagreement over whether a citizen can be deemed an "enemy combatant" under the Military Commissions Act, this is a moot point for several reasons. First, if the legislation is that ambiguous, the distinction will not stand. Second, the Bush administration has already pronounced American citizens, such as Jose Padilla, as enemy combatants and held them incommunicado without charges while subjecting them to sophisticated psychological torture techniques. Unless this abuse of power is overturned, a precedent will have been established. But most importantly, our natural rights do not come from our status as citizens; they come from our Creator. Violating the basic rights of the accused simply because they are noncitizens is wrong, period.

The most fascinating chapter in the book describes an event worthy of a Tom Clancy novel. The Bush White House was determined to obtain Justice Department reauthorization of a surveillance program that the department's Office of Legal Counsel had recently deemed illegal. Because the reauthorization deadline was looming, then-Chief of Staff Andrew Card and White House Counsel Alberto Gonzales set out in the dead of night to visit a hospitalized and extremely ill John Ashcroft, then the attorney general, to convince him to re-approve the program. But James Comey, the acting attorney general at the time, was alerted to their plans via Mrs. Ashcroft. Comey immediately raced across town to the hospital with sirens blaring in order to prevent Card and Gonzales from taking advantage of an ill and disoriented man. Shortly after Comey arrived, FBI Director Robert Mueller, while also racing to the scene, phoned his agents at the hospital, instructing them to not allow Comey to be removed from the room under any circumstances. For the full story, you'll have to read the book.

The surveillance program at the heart of the above drama was revealed, in part, by the New York Times in December of 2005, but its full nature and scope remain unknown. Napolitano doesn't explore the likely extent of the original program. However, constitutional lawyer Glenn Greenwald makes a compelling argument, based on the central role played by Director Mueller, that it included purely domestic spying.

Overall, A Nation of Sheep does an admirable job of summarizing the multifaceted and blatant attacks on our constitutionally protected natural rights, but it does have its flaws. Unfortunately, Napolitano seems to have capitulated to prevailing ignorance by using the word "democracy" instead of "republic" when describing the American system as given us by the Founders.

Also, I do not agree with Napolitano that the overruling of public-school dress codes by the Supreme Court is a great victory for free speech. Such rulings destroy any remaining vestige of local and parental control.

The reader is urged to carefully study this book, and then work to put government back into its constitutional straitjacket.


David Stertz is a mechanical engineer and political activist from the Fox Valley area of Wisconsin.
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Author:Stertz, David
Publication:The New American
Date:Jan 21, 2008
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