The 2016 Republican presidential primary field isn’t short on personalities, diversity or policy, ranging from wonky financial sector reforms to headlining issues like immigration — but there’s only one candidate who cares about Americans’ basic constitutional protections, according to former New Jersey Superior Court Judge Andrew Napolitano, and it’s definitely not fellow Newark native Gov. Chris Christie.
In an op-ed for Fox Thursday the network’s senior judicial analyst recalled a searing exchange between the New Jersey governor and Kentucky Republican Sen. Rand Paul during last week’s first GOP presidential primary debate on the network.
Moderator Megyn Kelly lit the fuse connecting the two with a question about national security and anti-terrorism government surveillance for the libertarian Paul, whom the hawkish Christie blasted earlier this year for acting irresponsibly in regard to national security during the debate in Congress over passage of the USA Freedom Act National Security Agency reform bill.
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“I want to collect more records from terrorists, but less records from innocent Americans,” Paul said. “The Fourth Amendment was what we fought the Revolution over. John Adams said it was the spark that led to our independence, and I’m proud of standing for the Bill of Rights, and I will continue to stand for the Bill of Rights.”
“That’s a completely ridiculous answer,” Christie cut in. “‘I want to collect more records from terrorists but less records from other people.’ How are you supposed to know, Megyn?”
“Use the Fourth Amendment. Get a warrant!” Paul countered. “Get a judge to sign the warrant!”
“Listen senator,” Christie continued. “You know, when you’re sitting in a subcommittee just blowing hot air about this, you can say things like that. When you’re responsible for protecting the lives of the American people, then what you need to do is to make sure you use the system the way it’s supposed to work.”
Paul said he doesn’t “trust President Obama” with Americans’ phone records, and accused Christie of “fundamentally” misunderstanding the Bill of Rights.
According to Napolitano, Christie not only misunderstands Americans’ Fourth Amendment right to privacy, he supports policies in flagrant violation of it.
“Christie advocated an approach more radical than the president’s when he argued with Paul during the debate last week,” Napolitano wrote Thursday. “He actually said that in order to acquire probable cause, the feds need to listen to everyone’s phone calls and read everyone’s emails first.”
“He effectively argued that the feds need to break into a house first to see what evidence they can find there so as to present that evidence to a judge and get a search warrant to enter the house.”
Napolitano added such an argument “would have made Joe Stalin happy,” but “flunks American Criminal Procedure 101,” which requires law enforcement to submit evidence of probable cause to obtain a search warrant against those suspected of breaking the law — not freely sift through all Americans’ legally protected records for potential evidence of a crime to investigate later.
“Christie wants the feds to use a fish net,” Napolitano wrote. “Paul argues that the Constitution requires the feds to use a fish hook.”
The former judge said Christie’s philosophy — and that of the the previous two administrations’ Justice Departments — brings “back a system the founders and the framers hated” and “fought a war to be rid of,” recalling the general warrants issued by a secret court in Britain under the direction of the king, dispatching spies to the colonies looking for proof colonists were paying the king’s taxes.
Through the Foreign Intelligence Surveillance Court, the Patriot Act and even the newly minted USA Freedom Act, the federal government has grown far too reliant on general warrants of need, according to Napolitano, which facilitate the NSA and other agencies’ ability to “read whatever emails, listen to whatever phone calls in real time, and capture whatever text messages, monthly bank statements, credit card bills, legal or medical records it wishes merely by telling a secret court in Washington, D.C., that it needs them.”
“Christie rejects the plain meaning of the Constitution, as well as the arguments of the framers, and he ignores the lessons of history,” Napolitano said. “The idea that the government must break the law in order to enforce it or violate the Constitution in order to preserve it is the stuff of tyrannies, not free people.”
Napolitano isn’t the only judge to think so. The Second U.S. Circuit Court of Appeals ruled in May Section 215 of the Patriot Act does not permit the bulk collection of Americans’ landline telephone records.
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“Among the current presidential candidates, only Paul has expressed an understanding of this and has advocated for fidelity to the Constitution,” Napolitano wrote. “He is not against all spying, just against spying on all of us.”
“The remaining presidential candidates — the Republicans and Hillary Clinton — prefer the unconstitutional governmental need standard, as does President Obama.”
