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TV's voice of the Constitution
By Nat Hentoff
Most of the people I know who excoriate Fox television news for its conservatism, of which there is sometimes more than a tinge, hardly ever watch the channel. Accordingly, they miss the daily appearances of Judge Andrew Napolitano, formerly on the bench of the Superior Court of New Jersey, who is the only regular commentator on constitutional law, including civil liberties, on any cable or broadcast network, or in most newspapers.
As senior judicial analyst for Fox, Judge Napolitano appears daily on "The Big Story with John Gibson"; at various times in the morning on "Fox & Friends"; on Bill O'Reilly's "The O'Reilly Factor"; and whenever there is a breaking story that requires legal analysis.
One never needs footnotes to follow the judge's commentary. For example, a month after the September 11 attacks, Judge Napolitano wrote, with characteristic clarity, in the New Jersey Law Journal that:
"In a democracy, personal liberties are rarely diminished overnight. Rather, they are lost gradually, by the acts of well-meaning people, with good intentions, amid public approval. But the subtle loss of freedom is never recognized until the crisis is over and we look back in horror. And then it is too late."
Earlier this month, after Attorney General John Ashcroft testified before the House Judiciary Committee that he needs more power to wage war on terrorism, Judge Napolitano commented that, "essentially, what [Ashcroft] asked for yesterday was legislation which would allow the attorney general, on the basis of suspicion — not evidence — to incarcerate people, Americans or non-Americans, for an indefinite period of time if they support terrorism."
Then, presenting a hypothetical situation, Judge Napolitano said that if Massachusetts Sen. Ted Kennedy supported the IRA, "a terrorist organization, under this new legislation if enacted, John Ashcroft could incarcerate Ted Kennedy without a trial, without a lawyer, for as long as he wanted to."
"The attorney general," Judge Napolitano emphasized, "needs to follow the Constitution, whether the Congress authorizes him to or not. And then we will have the rule of law, and civil liberties upheld, and security as well ... The bottom line is the government needs to preserve civil liberty. That's why we have this country."
After the Justice Department's own inspector-general released a report stingingly critical of the attorney general and his colleagues' violations of due process when non-citizens only suspected of terrorist ties were rounded up, Judge Napolitano said approvingly of the inspector-general's report:
"You might think it came from Amnesty International or the ACLU [the American Civil Liberties Union] ... If you overstayed your visa by a day, and you were accused of being in a terrorist organization, you were put in ... solitary confinement, lights on all the time. And instead of the [required] 72 hours to interrogate you and exonerate, it took 12 to 18 months."
The judge also noted that, of the 762 immigrants locked up in that sweep (some held under very abusive conditions), none were ultimately charged with any terrorist activity. Those deported were for violations of immigration laws, not terrorism.
Judge Napolitano has also pointed out on Fox News that, in terms of civil liberties, "the Constitution makes no exceptions in prohibiting violations of 'fundamental liberties of citizens or non-citizens' on American soil."
Unquestionably, among the stars of the Fox News Channel are such undisguised conservatives as Mr. O'Reilly and Sean Hannity, though each of them invariably invites guests with views directly opposed to those of the hosts. My own views often conflict with Mr. O'Reilly's, particularly his jihad against the ACLU. Judge Napolitano could provide Mr. O'Reilly with a corrective analysis of that organization, as well as a useful lecture on the Bill of Rights. But I watch Mr. O'Reilly because he often illuminates the anti-free speech abuses of the politically correct.
The news channel's most valuable illuminator of why we are Americans is Judge Andrew Napolitano. Every network and newspaper should have his equivalent.
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