Napolitano: I am walking out of Mass one day in Washington Square Park in lower Manhattan, and a scruffy guy with some others like him comes up to me and offers me marijuana. I tell him to take a hike. He turns over the collar of his jacket and shows me his New York Police Department detective badge and says, "Have a nice day, Your Honor," so obviously he [and his fellow undercover cops knew who I was]. What were they doing? Selling drugs. Now, there's no exception in the statute. They wanted me to buy drugs (which don't tempt me at all, even though I believe that they should be legal). Their chances of hitting on me were none and none. They just recognized me coming out of Mass, but they were committing a crime in an effort to enforce the law. Selling drugs and attempting to sell drugs in the presence of children, mind you. When the government breaks the law in order to enforce the law, it perverts the process. It becomes a law unto itself. It encourages others to become a law unto themselves, and it becomes a precedent for the government to do that again and again and again.
The government routinely bribes witnesses by giving them something of value in order to influence the witness’s testimony. It could be paying the witness's bills--alimony, rent, or mortgage. It could be a direct cash payment to the witness. It could be, and this is the most typical way, forgiving the witness a crime he has committed. When the government does that, it perverts the intellectual integrity of the trial process. It no longer becomes a search for truth. This tactic is of a post-World War II vintage. It is now taught in law schools as well as specialized schools for prosecutors that the government runs.
The government does that for two reasons. One, I think it honestly believes, and there's a lot of data to support this, that if you cut the head off [of a criminal enterprise], you're going to destroy the organization. The second is that a lot of prosecutors are interested in victory, not truth, and they're interested in a high-profile victory because it enhances their own careers and their own standing in the law enforcement community.
Reason: Is there any reason to believe the PATRIOT Act has helped keep us safe from terrorism?
Napolitano: We have not been attacked since 9/11. Who knows why? We wiped them out of Afghanistan. We inflicted enormous setbacks on them in Iraq. The government can take all the credit that it wants on the basis of the PATRIOT Act, but the government cannot point to a single successful prosecution for terrorist activity where the evidence obtained was under the PATRIOT Act--at least a successful prosecution that wasn’t overturned eventually. The PATRIOT Act creates one new independent crime, the crime of speaking. The rest of the PATRIOT Act does not create substantive crimes. It gives tools, unconstitutional tools, to law enforcers. They have used those tools, but they haven't gotten a single prosecution for terrorist acts on the basis of it. They've gotten five prosecutions having to do with political corruption and drugs. One of the things that John Ashcroft gave to Congress in return for no debate was the sunset clause. The other was that the PATRIOT Act would only be used in the war on terror.
Both of those promises have been violated. We know from newspaper accounts that the PATRIOT Act was used to gather information on political corruption in Las Vegas and against drug dealers elsewhere. The Intelligence Reform Act of '04 gets rid of one of the sunset clauses.
Reason: You said abortion is murder. Should it be regulated by the state or should it be prohibited by the state?
Napolitano: Absolutely it should be prohibited, just the way all unjust killings are prohibited.
Reason: Should doctors go to prison as murderers?
Reason: First-degree murder?
Reason: Should they get the death penalty--
Napolitano: I don't believe that the state has the moral authority to execute, so I don't believe in the death penalty.
Reason: But you do think that doctors who perform abortions should be put in jail as murderers? Every bit as much as Scott Peterson?
Napolitano: Yes. By a state government, not by the federal government, because the Constitution doesn't authorize the federal government to prosecute murderers. Roe v. Wade is wrong because there's isn't a scintilla in the Constitution or its history to justify federal legislation on abortion. It would then be up to the state of Kansas to allow it and Pennsylvania not to allow it.
Reason: What's the connection between your Catholicism and your politics? The church contributed hugely to the development of natural law theory. But historically, the church has also often been an extremely repressive, anti-democratic, anti-individualistic organization.
Napolitano: The Catholic Church teaches that every human life is of potentially infinite value, that it can be saved up to the moment of death, and that each soul could present everlasting and eternal glory to God, no matter how evil the person appears. That's about as strong a statement of the primacy of the individual over the state as you could imagine.