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By Judge Andrew P. Napolitano
The Washington Times
May 16, 2013
Government is bad for personal freedom. That argument is premised upon the truism that everything government does interferes with freedom because it either prohibits or compels. Everything it owns it has taken from others. Much of what it says is divorced from the truth. President Obama, like President George W. Bush, has argued that his first job is to keep America safe, and if he impairs personal freedom in the process, that is a small price to pay for safety. Many of my colleagues in the media on the left and right have bought this argument, notwithstanding its fallacies.
This past week, we learned that the Internal Revenue Service has targeted for additional scrutiny the tax-exemption applications of groups with whose messages it disagrees. We also learned that the Department of Justice obtained the personal telephone records of hundreds of reporters and editors employed by The Associated Press without a search warrant issued by a judge. During this past week, we also learned that the White House, the Department of State and the CIA all engaged in a conspiracy of disinformation so that the official versions of events of what caused the killings of four Americans at the U.S. Consulate in Benghazi, Libya, would not impair Mr. Obama’s re-election campaign last year.
The common threads in all of this government secrecy and lying involve a general rejection of government’s moral obligation to tell the truth, a disturbing yet brazen willingness to evade and avoid the restrictions the Constitution has built deliberately around government, and a glib acknowledgment that the government can do as it pleases so long as it can get away with it politically.
The Constitution’s Equal Protection Clause requires that the government treat all similarly situated entities in a similar manner. The Constitution’s First Amendment prohibits the government from using the speech and expressive activities of people in America as a basis for the disparate treatment of them.
Thus, on its face — that is, on the basis of what the IRS has admitted and without any further investigation — we have violations of these constitutional principles. If the IRS were to examine the applications for tax exemption of Media Matters with the same level of scrutiny as it does with the Tea Party Patriots, it would not run afoul of these principles. But Congress has given the IRS broad latitude to scrutinize the behavior of the taxpayers it chooses to scrutinize, and the IRS has given itself authority to probe, prod and plunder wherever it wishes. I say “given itself” because the IRS has rule-making power, which, when overlooked by Congress (as is almost always the case), serves to enhance IRS powers beyond what Congress permits.
Short of criminal behavior such as bribery or conspiracy, the IRS employees who have singled out applications for tax-exempt status for more scrutiny based on anticipated political expression are subject to removal from office, but they cannot be prosecuted or sued. Here again, Congress is to blame, as both Republicans and Democrats have used and abused the IRS to their advantage, and neither party inwardly wants laws that will prevent it from doing so in the future. Is this what you expect of our tax collectors?
The First Amendment also ensures the right of professional journalists to seek and protect their sources, and it gives them immunity from government prosecution or retribution for truthfully publishing matters of material public interest, even when it involves information stolen from the government. The Supreme Court taught us this in the Pentagon Papers case.
Moreover, the Fourth Amendment requires that if the government wants private information about who stole its secrets, it needs a search warrant from a judge. However, the USA Patriot Act, which was celebrated by some in the media whose telephone records have since been seized, permits federal agents to write their own search warrants when they seek records from a third party such as a telephone company and can claim that pursuit of terrorists is at stake. The Patriot Act makes a mockery of the Fourth Amendment, and the government knows that. When the government chills free speech, we all suffer. Thomas Jefferson preferred newspapers without government to government without newspapers. Whose personal records will the government authorize itself to seize next?
The lesson of Benghazi is that we had no lawful right to interfere in the domestic affairs of the Libyan government. It was unlawful for Mr. Obama to bomb Moammar Gadhafi without a congressional declaration of war. The organized assault on our consulate was the unintended consequence of us using force to infuse American-style democracy on a people whose culture is unable and unwilling to accept it.
The president’s people, though, were terrified that the killing of our ambassador to Libya during the presidential campaign might impair Mr. Obama’s re-election chances. So they and he tried to rewrite history, and the more they and he lied, the more they and he needed to lie to cover up their original lies. Would you retain an employee who lied to you about the deaths of innocents and lied more to cover up the original lies?
Now, back to Mr. Bush, Mr. Obama and the president’s job. According to the Constitution, the president’s first job obligation is to preserve, protect and defend the Constitution. According to the Constitution, that means preserving Americans’ freedom first and safety second. Freedom is our natural state and is the ultimate natural right. Safety is a need that we ourselves can provide when unimpeded by the government. If the president keeps us safe but not free, he is not doing his job. Do you know anyone who feels freer or even any safer because the government has trampled personal freedoms and so far has gotten away with it?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Mr. Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”
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