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Jewish World Review June 30, 2003 / 30 Sivan, 5763

Nat Hentoff

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TV's voice of the Constitution | Critics who see Fox News Channel as a fount of right-wing advocacy ignore television's only regular authority in constitutional law, specializing in civil liberties. If they tuned in, they would see Judge Andrew Napolitano, who served on New Jersey Superior Court from 1987 to 1995 and continues to lecture on constitutional law.

As senior judicial analyst for Fox, Napolitano appears daily in "The Big Story with John Gibson"; at various times on the morning "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 Sept. 11 attacks, 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."

In June, 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, 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 ...

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"The attorney general," 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, 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. 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 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 O'Reilly's, particularly his jihad against the American Civil Liberties Union.

Napolitano could provide O'Reilly with a corrective analysis of that organization, as well as a useful lecture on the Bill of Rights. But I watch 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 Anthony Napolitano. Every network, and newspaper, should have his equivalent.

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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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