November/December 2004 PolicyReportVol. XXVI No. 6

How the Government Breaks the Law

by Andrew P. Napolitano

t should be against the law to break the law. Unfortunately, it is not. In ear- ly 21st-century America, a dirty little Isecret still exists among public officials, politicians, judges, prosecutors, and the police. The government—federal, state, and local—is not bound to obey its own laws. I know this sounds crazy, but too many cases prove it true. It should be a matter of grave concern for every Ameri- can who prizes personal liberty. When I became a judge in New Jersey, I had impeccable conservative Republican law- and-order credentials. When I left eight years later, I was a born-again individualist, after witnessing first-hand how the criminal jus- Judge Andrew P. Napolitano, Fox News judicial analyst, discusses the Supreme Court’s record on tice system works to subvert and shred the civil liberties at the annual Constitution Day conference of Cato’s Center for Constitutional Stud- ies on September 17. Federal Election Commission chairman Brad Smith and Judge Royce Lam- Constitution. You think you’ve got rights that berth listen. are guaranteed? Well, think again. Eternal vigilance is the price of liberty, par- ticularly when it comes to the American crim- the Constitution and the Bill of Rights. In This Issue inal justice system. Nowhere else does the That’s what it has always meant, and that’s state have greater raw power over an indi- what it will continue to mean in the trou- vidual’s life, liberty, and property. And nowhere bled times before us. else are our constitutionally guaranteed rights Most of us take these guaranteed rights and freedoms under such a relentless, subtle, and liberties for granted. Most of us live and ultimately devastating attack. comfortable lives that never bring us in The deck is grossly stacked in the gov- conflict with the criminal justice system. ernment’s favor. No wonder, as a recent But in many ways, that’s a bad thing, for New York magazine cover story put it, if you had seen the system as I did, you referring to the government’s long winning would never take your guaranteed rights Penn but not Teller, p. 4 streaks in criminal trials, “The Defense for granted again. Rests—Permanently.” No wonder that in Crane on the Ownership Society 2 2003 fewer than 3 percent of federal indict- Breaking the Law to Enforce the Law The Supreme Court’s impressionist year 3 ments were tried; virtually all the rest of As a judge, I once heard an infuriating case Cato events 4 those charged pled guilty. involving the owner of a small Italian restau- Being an American means having cer- rant, an immigrant from Italy who was visited Abusing the courts 7 tain rights and liberties guaranteed by by two well-dressed gentlemen who introduced Does affirmative action help? 8 themselves and asked for weekly payments of The coming pension bailout 14 Andrew P. Napolitano, senior judicial ana- a hundred dollars. In return, they promised the Drug reimportation 14 lyst for Fox News Channel, is the youngest restaurant owner that his garbage would be Should Iraqis pay Saddam’s debts? 15 life-tenured judge in the history of New Jer- collected on time, he would not have any trou- Creating a real education market 16 sey. He is the author of Constitutional Chaos: ble with labor unions, he would not be the vic- The criminalization of almost everything 18 What Happens When the Government Breaks tim of any crime, and no competing restaurant To be governed . . . 20 Its Own Laws, on which this article is based. Continued on page 12 ❝If you had seen the system as I did, you would never take your guaranteed rights for granted again.❞

BREAKS THE LAW Continued from page 1 The children were brainwashed with fan- month period. These psychiatrists claimed tasies of sexual abuse involving masks, to be able to help individuals “recover mem- would open in his neighborhood. snakes, drills, and other objects, and even- ories,” but their technique was simply to He threw them out. tually came out of the interviews think- hypnotize Ileana so that she could be brain- They returned unannounced about six ing they were victims. washed into believing that Frank Fuster times and every time their demands increased, Of all the children alleging sexual abuse was a child molester. The coercion even- eventually to a thousand dollars a week, against Fuster, Reno’s office only presented tually worked: with the psychiatrists pres- each. After he rebuffed that demand, they physical “evidence” that one child was abused. ent and with Janet Reno squeezing her said they’d be back the following week with The prosecution invoked a laboratory test sug- hand, Ileana implicated her husband. guns, and he’d better get one. Terrified of gesting that a child had tested positive for gon- Ileana’s trial testimony against her hus- this threat, and afraid as most immigrants orrhea of the throat. However, the lab test that band put the final nail in Frank Fuster’s are to involve the police, the restaurant was performed is very unreliable and often coffin. Reno won the conviction, her reelec- owner borrowed a friend’s gun. gives false positives. Reno’s agents tested for tion bid, her name in the newspaper head- When the two gentlemen returned and the family of bacteria to which gonorrhea lines, and a stepping stone to a position as asked if he had a gun, the restaurant owner belongs rather than specifically for gonorrhea; the nation’s chief law enforcement offi- reached into a drawer, pulled out the gun, and other bacteria that could have caused the false cer. However, Ileana Fuster has repeated- pointed it at them. They immediately slapped positive are harmless and are frequently found ly retracted her confession and testimony, handcuffs on him! Unbeknownst to him, they to live in children. Of course, the state ordered swearing that she and Fuster never abused were New Jersey state troopers who were try- the lab to destroy the evidence three days lat- any of the children, and that her confes- ing to either shake him down for money or er, thereby preventing the defense from chal- sion was the product of brainwashing. coerce him into breaking the law. lenging the state’s “evidence.” Yet, thanks to Janet Reno, an innocent His prosecution for carrying a gun was Recognizing that the case against Fuster Fuster remains incarcerated for 165 years assigned to me, along with a similar case was weak, Janet Reno’s final straw was to without the possibility of parole. involving a nearby Italian bakery. torture Ileana Fuster physically and men- Before the cases began, I ordered the troop- tally to the point where she could be coerced Messing with Texans ers to appear in my courtroom, to inquire if into implicating her husband. It is unfair, unwise, and un-American for their schemes were self-directed or author- Reno had Ileana isolated from the prison police to break the law in order to enforce ized by their supervisors. They refused to be population and placed in solitary confine- it. A corrupt police officer in Tulia, Texas, a so interrogated, whereupon the prosecutors ment, naked. Ileana described her treatment small rural town of about five thousand peo- asked me to dismiss both cases, which I did. in a 1998 interview: “They would give me ple, engaged in what one commentator deemed The bakery owner was so delighted, he pro- cold showers. Two people will hold me, run an “ethnic cleansing of young male blacks.” claimed in a classic Sicilian accent: “The me under cold water, then throw me back in Thomas Coleman, an undercover nar- Judga, he can eata for free for the resta his the cell naked with nothing, just a bare cotics officer, committed one of the worst life!” I never took the owner up on his offer, floor. And I used to be cold, real cold. I would police atrocities in recent years by arrest- but I appreciated his sentiments. have my periods and they would just wash ing 46 people on July 23, 1999. Of those me and throw me back into the cell.” arrested, 39 were black, which amounts to Torture and Psychological Abuse Late one night, the naked Ileana, according approximately half of the town’s adult black Political ambition can be a powerful moti- to her lawyer, received a visit in her darkened population. Many others were involved vating factor for government abuse of our solitary cell from an intimidating 6-foot-2 in the family or personal relationships with rights. Consider one of the cases that helped woman. The woman told Ileana that she knew black Americans in an otherwise over- propel Janet Reno to national stardom. In that Ileana and her husband were guilty. “But whelmingly white community. Coleman’s 1984, Reno faced a serious challenger in her how can that be? We are innocent,” Ileana pro- previous law enforcement employers knew bid for reelection as Dade County’s state claimed. “Who are you?” “I’m Janet Reno,” that Coleman himself had once been arrest- attorney. In August of that year, Frank Fuster the woman said. Ileana repeatedly told Reno ed for theft during an undercover opera- and his wife, Ileana Fuster, were arrested for that she was innocent, and Reno kept repeat- tion, that he used racial epithets, and that sexually abusing more than 20 children who ing, “I’m sorry, but you are not. You’re going he had a widespread reputation in the Texas attended their home daycare center. Reno to have to help us.” Reno made several more law enforcement community as being unre- began the case by soliciting Laurie and Joe solitary, nightly visits to the naked Ileana, each liable and untrustworthy. Braga, both billed as “child abuse experts” time threatening Ileana that she would remain Nonetheless, on the basis of Coleman’s tes- with no psychology training, to interview in prison for the rest of her life if she didn’t timony, 38 individuals arrested on that day the children. tell Reno what she wanted to hear. were found to be guilty of drug dealing. Some The Bragas used suggestive and mis- Finally, Reno hired two psychiatrists were sentenced to up to 90 years in prison! leading interview techniques to elicit false from a company called Behavior Chang- Some were coerced into accepting plea bar- accusations from the children in the case. ers Inc., who met Ileana 34 times in a one- gains under the threat of lengthy imprisonment.

12 • Cato Policy Report November/December 2004 ❝Thanks to Janet Reno, an innocent Fuster remains incarcerated for 165 years without the possibility of parole.❞

What is most shocking is that the prose- the money is allocated to the task forces the means’ philosophy,” the judge wrote, cution’s only evidence against these defen- on the basis of number of arrests, not con- “by claiming that our Constitutional and dants was the testimony of Coleman, the victions. Because there is no distinction democratic principles must be temporarily dirty cop. The testimony was uncorrobo- between high-quality and low-level arrests, furloughed or put on hold in cases involv- rated: no witnesses or other police officers the federal government creates an incen- ing alleged terrorism in order to preserve our could confirm that Coleman bought drugs tive for officers like Coleman to engage in democracy. To do so would result in victo- from these defendants. And Coleman could sloppy investigations against low-level ry for the terrorists.” not offer any audio or video surveillance ver- offenders, and against the innocent. But within mere yards of where this fair ifying his undercover drug purchases. Not judge sat when he wrote those words, the even fingerprint evidence was introduced. Rights No More government lawyers who once swore to Coleman’s testimony was based solely The war on terrorism has increased the uphold the Constitution were plotting to put on notes he scribbled on his stomach and need to protect vigilantly our civil liberties. it on hold. his leg. He did not keep a permanent note- In July 2003, the U.S. Department of Jus- According to a lawyer for one of the six— book. At the time of their arrests, these 46 tice held a celebration at which it handed himself a former federal prosecutor—the supposed drug dealers possessed no guns, out honors and praises to federal agents and government lawyers implicitly threatened no drugs, and no money. Coleman claimed lawyers involved in the prosecution of the the six during plea negotiations that if they to have purchased $20,000 worth of cocaine Lackawanna Six. did not plead guilty, if they did not speak up from these “dealers.” Furthermore, some It should have handed out indictments as the government wished, if they did not of the individuals who were arrested estab- instead, because those prosecutors—or at cooperate in their own prosecutions, if they lished that they were miles away from Tulia least some of them—violated their oaths insisted on their due process rights, the gov- that day. A few of them neither worked to uphold the Constitution in order to coerce ernment would declare them to be enemy nor lived in Tulia. All of the people arrest- six soccer-playing young men from Lack- combatants. ed that day were either convicted by juries awanna, New York, with no criminal records, In that case, the so-called defenders of the or pleaded guilty. In 1999, Texas attorney into accepting long jail terms, well out of Constitution threatened, the six would have general John Cornyn—now a U.S. sena- proportion to their alleged crimes. no due process rights, no trial, no lawyers, tor—named Coleman the outstanding law The six—all Arab Americans in their ear- no charges filed against them, and they would enforcement officer of the year. ly 20s, five of whom were born here—were receive solitary confinement for life. The Tulia, Texas, debacle attracted nation- charged in federal court in the Western Dis- There is no reported case in American his- al media attention and a coordinated, multi- trict of New York with providing aid and tory in which a court allowed a defendant to defendant habeas corpus campaign, coordi- support to a terrorist group, before Sep- be told that his insistence on due process would nated by the NAACP and many law firms. tember 11, by attending camps in Afghanistan, result, not in prosecution and conviction, but About four years later, the Texas Court of learning about weapons, and listening to in punishment without trial. It has always been Criminal Appeals exonerated the victims of Muslim clerics preach hatred toward the the case that when entering a guilty plea— Coleman’s fraud. Coleman had previously United States. and when negotiating for that plea—the defen- acknowledged that the convictions were based They were charged with listening to oth- dant’s fears of punishment were limited to that on nothing more than his testimony. While ers—including, in the case of one of them, which the law provides. Today, for the gov- he stated that he was “pretty sure” that all Osama bin Laden himself—talk about caus- ernment to threaten that the punishment can the defendants “deserved” to be behind bars, ing America harm and with training for some be increased by fiat by the president after the he admitted to several “mess ups” and stat- undefined jihad, even though they said that crime has been committed is not only uncon- ed that some of his own sworn testimony was once they arrived and met the people in stitutional, it is tyrannical. “questionable.” It is a rare anomaly that police the camps, they wanted nothing to do with abuses such as that perpetrated in Tulia, Texas, it. The government actually told a federal Liberty: Void Where Prohibited are overturned. You can’t help but wonder judge that since the clerics being heard by It is only a warped view of American how many wrongfully convicted defendants the six were preaching violence, the six had history, culture, and law that could seri- never had the luxury of seeing justice served. committed crimes of violence. ously suggest that constitutional rights are It shouldn’t be a luxury. The court rejected that argument out of discretionary—that any president can strip Coleman currently faces trial for per- hand. After reviewing the evidence against a person of his due process rights. Let’s be jury, but the buck does not stop at Thomas the six, the judge wrote that these defendants— clear: There is no Supreme Court case sup- Coleman. Coleman’s activities were financed like all defendants—are guaranteed due process, porting or authorizing presidential enhance- by the federal government’s war on drugs, and that federal courts should do more ment of punishment, and the Justice Depart- as he was part of the Panhandle Regional than just pay lip service to the guarantees of ment knows that. Narcotics Task Force. The Department the Declaration of Independence and the Con- So if it is constitutionally impossible of Justice encourages officers like Coleman stitution; they should enforce them. for the government to strip a person of his to rack up as many arrests as possible, since “We must never adopt an ‘end justifies Continued on page 15

November/December 2004 Cato Policy Report • 13 enable Central American nations to raise booth. While advocates of majoritarian “Iraq’s Odious Debts” (Policy Analysis no. labor and environmental standards more democracy posit a variety of “shortcuts” 526), Patricia Adams argues that the Iraqi quickly than would otherwise be possible. that might allow clueless voters to make people should examine the outstanding informed decisions (such as following opin- claims against the Iraqi government and ◆Fooling All the People All the Time ion leaders or focusing on a handful of issues repudiate those debts The average voter is shockingly ignorant most relevant to their own lives), Somin that financed Saddam of basic facts about the American politi- shows that such techniques are inadequate Hussein’s “weapons, cal system. Before the 2000 election, only to the task of disciplining today’s gargan- palaces, and instruments about half of voters knew which party con- tuan federal government. Two solutions of repression.” Those trolled Congress, and a dismal 15 percent that are effective, he says, are federalism debts that were used for could identify one of the candidates for the and limited government. Federalism allows legitimate purposes, on House of Representatives from their own voters to “vote with their feet,” seeking out the other hand, should district. Polls show a similar level of igno- jurisdictions with more effective policies. be honored. As she rance about high-profile government pro- Such “feet voting,” he notes, doesn’t require explains in some detail, Patricia Adams grams like Social Security and Medicare— voters to have an in-depth understanding the Doctrine of Odious only 31 percent of voters, for example, were of why some policies work better than oth- Debts has been an accepted principle of inter- familiar with the recently passed Medicare ers. Limited government reduces the num- national law for more than a century. It prescription drug benefit. In “When Igno- ber of issues that voters need to be con- was used in the American Civil War to repu- rance Isn’t Bliss: How Political Ignorance cerned with, reducing the costs to voters of diate the debts of the Confederacy, and in the Threatens Democracy” (Policy Analysis no. becoming well informed about the issues Spanish-American War to repudiate the debts 525), George Mason University law pro- of the day. the Spanish had imposed on the people of fessor Ilya Somin argues that such igno- Cuba. It has been used less frequently in recent rance presents serious challenges for dem- ◆Lender Beware years, but Adams notes that revitalizing the ocratic governance. Voters, he argues, must It’s hard to justify asking an oppressed peo- doctrine will give creditors a powerful incen- have at least minimal political knowledge ple to pay debts incurred by a tyrant in the tive to ensure that the money they lend is not to make prudent decisions in the voting process of oppressing them. That’s why, in used for illegitimate purposes. ■

BREAKS THE LAW Continued from page 13 sonnel, and everyone who works for or is should be able to sue the local police, state an agent of the government to be governed police, and the FBI under the same legal due process rights, why did the lawyers for by, subject to, and required to comply with theories if they torment you, prevent you the Lackawanna Six let their clients plead all the laws. from speaking freely, bribe witnesses to tes- guilty and accept six-to-nine-year jail terms? That would eliminate virtually all entrap- tify against you, steal your property, or Because they knew that the government had ment, and it would enhance respect for the break the law in order to convict you. suspended rights before and gotten away law. If the police are required to obey the If the Constitution is enforced selec- with it. They knew that the president had same laws as the rest of us, our respect for tively, according to the contemporary wants actually declared three people to be enemy them and for the laws they enforce would and needs of the government, we will con- combatants and kept them locked up with- dramatically increase, and their jobs would tinue to see public trials in some cities and out charges and away from their own lawyers. become easier. In short, it would be against secret trials in others; free speech suppressed And before the Supreme Court stepped in, the law to break the law. on inexplicable whims; police targeting the he appeared to be getting away with it. Second, Congress and the state legisla- weak and killing the innocent; and gov- tures should make it easier to sue the fed- ernment lying to its citizens, stealing their Protecting Freedom eral and state governments for monetary property, tricking them into criminal acts, Ultimately, the fate of American liber- damages when they violate our constitu- bribing its witnesses against them, making ty is in the hands of American voters. Though tional liberties. a mockery of legal reasoning, and break- we are less free with every tick of the clock, The federal government and many states ing the laws in order to enforce them. most of us still believe that the government have rendered themselves immune (called This is not the type of government we, is supposed to serve the people—fairly, not “sovereign immunity”) from such lawsuits the people, have authorized to exist, and selectively. if the lawsuit attacks the exercise of dis- it is not the type of government that we There are some surprisingly direct ways cretion by government employees. That should tolerate. We can do better. If gov- to address the excesses I’ve described. is nonsense. You can sue your neighbor for ernment crimes are not checked, our Con- First, Congress and the state legislatures negligence if his car runs over your garden stitution will be meaningless, and our should enact legislation that simply requires or your dog. You can sue your physician attempts to understand it, enforce it, and the police, all other law enforcement per- if he leaves a scalpel in your belly. You rely on it will be chaotic. ■

November/December 2004 Cato Policy Report • 15