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For the second time in two months, someone who has pledged allegiance to the Islamic State has plotted to kill innocents in New York City and has executed his plot.

According to police, at the height of the Monday morning rush hour this week, in an underground pedestrian walkway that I have used many times, in the middle of Manhattan, a permanent legal resident of the United States named Akayed Ullah detonated a bomb he had strapped to his torso in an effort to kill fellow commuters and disrupt massively life in New York.

The bomb was inartfully constructed, and it injured slightly four people nearby and Ullah himself seriously. He survived, was captured on the spot and is now in the joint custody of the New York Police Department and the FBI in the prison ward of Bellevue Hospital.

Ullah’s wounds had barely been addressed by emergency room physicians when the calls began to resonate in the government and in the media to strip him of his constitutional rights and ship him to a military facility in South Carolina or at Guantanamo Bay, Cuba.

These voices argued without access to any evidence that because the Islamic State is a foreign power with an army that has sworn to do harm to Americans and destroy our way of life, its soldiers have no constitutional protections when they go about their destruction. Ullah is a soldier of this foreign army, this argument goes, and should be treated as a soldier under the Geneva Conventions. That means he should be removed from the civilian judicial system and interrogated and tried by the military.

This argument essentially suggests that the police in New York or the FBI or the president somehow possesses the lawful authority from some unstated source, before guilt has been adjudicated, to suspend Ullah’s fundamental rights. This view of human liberty treats personal rights — even those guaranteed by the Constitution — as if they were gifts from the government offered in return for good behavior. Yet it defies history and the plain meaning of the Constitution.

Ullah’s rights to legal counsel and to a jury trial are expressly guaranteed by the Constitution; hence, no government official, no matter how powerful or well-intended, can interfere with them. The right to counsel attaches whenever anyone is confined against his will, charged with a crime or interrogated by authorities — whichever occurs first. The right to a jury trial attaches whenever the government wants the life, liberty or property of any person. The constitutional language guarantees these rights to every “person” — not citizens, not Americans and not just good people.

In Ullah’s case, the harm authorities say he caused occurred in the U.S. — while he was physically and lawfully in the U.S., where he was apprehended — so it is extremely unlikely that the crowd that denies the supremacy of the Constitution will get its way.


The failure to respect Ullah’s rights because he has said he was inspired by a foreign power would commence a slippery and horrific slope, down which any person who is hated or feared or appears foreign or different or misunderstood at any given moment might be pushed.

As a practical matter, the NYPD and the FBI are far better at gathering evidence than the military, and federal prosecutors are far better at getting convictions than are their military counterparts. It is a Hollywood-infused myth that Guantanamo Bay produces results. It does not. Khalid Sheikh Mohammed has been waiting in Gitmo for 15 years for his military trial.

When voices in the government clamor for the removal of fundamental liberties, it is often to mask the government’s own failures. I have argued for many years that government surveillance will turn us into East Germany — a modern-day totalitarian society that collapsed in 1989. I have also argued that surveillance doesn’t work. The place in which the Monday explosion occurred is one of the most video-surveilled in New York. Do the police watch these videos in real time as was promised when the cameras were installed? They do not.

As well, Ullah’s mobile phone recorded his whereabouts and communications prior to the explosion, also in real time, and the National Security Agency had all this, in real time. Did the NSA share it with the NYPD? It did not.

Some in government have asked what good the Constitution is if it fails to keep us safe. That is a bit silly, isn’t it? The Constitution is a piece of paper on which is written the supreme law of the land. Its purpose was to establish the federal government and to limit all government. But it is only as valuable to personal freedom as is the fidelity to it of those in whose hands we repose it for safekeeping. If the people we have hired to preserve, protect and defend the Constitution can cut corners to get to bad people, what will protect us when they want to cut corners to get to the rest of us?

When President Abraham Lincoln cut constitutional corners during the Civil War, he was unanimously rebuffed by the Supreme Court. The case, Ex parte Milligan, involved a civilian whom the government sought to try in a military court. The high court wrote: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”

This danger of the mob’s approving the curtailment of constitutional protections for unpopular monsters is as real today as it was after the Civil War. We must vigorously guard against it.

Copyright 2017 Andrew P. Napolitano. Distributed by

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  1. We kind of started down this slippery slope when it became OK for a kill list to allow pre-meditated murder of specifically identified American citizens, including their children, by drone when they were on foreign soil. One also wonders if the assassination by Feds of Randy Weaver and family on American soil might not also be extra-judicial execution. In additition, you have daily executions of American citizens by local law enforcement in situations where arrest and detention was reasonably possible but not attempted for reasons of “the safety of law enforcement personnel.”

    In that context, even if arbitrarily stripped of his “lawful status,” Ullah’s getting more due process than many other American citizens have received.

  2. anonymous • Disclaimer says:

    Just as I expected, and said in one of my comments to Mr. Napolitano’s anti-Russian propaganda published here last week:

    “Now watch to see how he deals with the exposure of the shameful, inept propaganda since. (Cf., the excellent articles by Mr. Greenwald and Mr. Lauria available here at TUR.) If he is intellectually honest, there will be a retraction. But we’ll likely see Mr. Napolitano pull the Russophobic dirk back under his robe back for a while, and write something supportive of President Trump* or, more likely, criticize the Establishment on another issue such as USG surveillance in violation of the Fourth Amendment.” [footnote omitted]

    So what does “Judge” think about the exposed corruption of the FBI and DOJ in the efforts led by the supposedly “no-nonsense” Mr. Mueller? Sorry, this week he has to fend off an unnamed lynch mob coming after an immigrant’s Constitutional rights. (News to me, by the way. Wonder where Mr. Napolitano saw such stuff?)

    I happen to agree with today’s article. But when the author is in a position to jump to a new topic each week, he is able to evade accountability for his apparent attempts to mislead readers, all in service to the anti-Russian Establishment.

  3. Anonymous [AKA "Farmer john"] says:

    In terms of a ‘slippery slope’, we are currently about in the same position as a downhill racer reaching top speed near the finish line.

    In other words, the point where we began to go down the slippery slope is much further behind us than our arrival in a world of totalitarian government and the complete demise of freedom.

  4. Paisan, you are one terminally naive fool. We need not and should not extend the same rights and privileges to noncitizens as we do to citizens.

    We also should be far more selective as to who is allowed to enter the country, who is allowed to become a permanent resident, who is allowed to become a citizen, and how long it takes for a perm Rez to become a citizen.

    If we observed that approach, we could safely dispense with this police-State surveillance of everyone, and we could safely accord to legal residents the rights and privilege that Napolitano wants them to have.

    Until then, Napolitano needs to wake up and grow up. If we allow Muslims and other hostile, incompatible, or unassimilable people to live here, we will never be able to have the same level of privacy and individual liberty that we used to have.

    • Replies: @Corvinus
  5. Get someone to accuse him of sexual harassment. Then he won’t have any rights. Glad I could help.

    • Replies: @Quartermaster
  6. Okay quiz of the day :

    Who, which human beings throughout all of history, have been the most tyrannical, deceptive, misleading, corrupt, stupid, unfair, unethical, uninformed, overpaid, dissolute, and undeserving BS artists.

    Can’t figure it out?

    Okay it starts with : J and ends with s, and in between there are the letters : u d ge.

    Authenticjazzman “Mensa” qualified since 1973, airborne trained US Army Vet, and pro jazz artist.

  7. Corvinus says:

    “We also should be far more selective as to who is allowed to enter the country, who is allowed to become a permanent resident, who is allowed to become a citizen, and how long it takes for a perm Rez to become a citizen.”


    “If we allow Muslims and other hostile, incompatible, or unassimilable people to live here, we will never be able to have the same level of privacy and individual liberty that we used to have.”

    And this is where you fall off the rails. Muslims, Kenyans, Guatamalans…they are more than capable of assimilating, even more so, as you just stated, if we are more selective as a nation as to which deserving individuals from those groups ought to come in.

    Again, the same tired argument was given by nativists toward the Irish and the Germans in 1850’s and the Italians, the Slavs, and the Poles in the 1890’s. Nativists did not view them as fellow whites or fellow Europeans, but as outsiders and interlopers. Only when nativist interests became threatened did they welcome those groups they had previously tried to exclude as “one of them”.

    • Replies: @RadicalCenter
  8. When the US lets in tons of morons from the Third World and passes out citizenship like flyers, what use is the Constitution?

    When the Laws allows so much madness, Rule of Law will devour itself.

  9. Issac says:

    Another predictable water-carrying progressive cliche. Bravo Judge, your sub-basement level propaganda is a powerful argument for its opposition.

  10. @WorkingClass

    Hardly. He’s Muslim, so his rights are unimpaired even with sexual harassment.

    • Replies: @WorkingClass
  11. KenH says:

    The Constitution and its legal protections were designed for white Europeans and no one else. It was not intended to protect millions of hostile racial aliens such as this Muslim bomber inclined to exact revenge against Americans for some real or perceived slight against the umma in some corner of the world.

    Now America has created a helluva problem with our mass importation of third world peoples with no genetic or cultural connection with, and radically different customs from, the founding racial stock and the bestowal of equal rights upon them. Judge Napolitano is a radical egalitarian who’s unable to see things from this perspective.

    The judge can’t or won’t admit that once the third world population reaches critical mass they’ll overthrow the Constitution that he places so much blind faith in as well as the descendants of the people who crafted it. He really believes that it’s a suicide pact to the point of zealotry.

  12. Andrew Napolitano is like a baseball umpire who is proud of his mastery of the rules of baseball, even to the point of completely understanding what constitutes a balk, or when the infield fly rule applies. Except now the contest is mixed martial arts.

    • Replies: @RadicalCenter
  13. @Corvinus

    You’re really comparing Italians, Greeks, and Slavs to African and Arab Muslims in terms of their ability and willingness to fully assimilate and be loyal to and safe for their new country? You are smart enough to know that is an untenable comparison.

    Moreover, when the big waves of Italians came to this country — including my very grateful, hardworking, peaceful, law-abiding, and immediately patriotic ancestors — the federal and state governments didn’t have a fraction of the resources and power that they now have. And almost none of today’s frightening surveillance technology existed.

    My Italian and Slavic forebears brought to this country their Christian religion and mores, along with languages and ways of describing the world much more similar to English/German than Arabic and Urdu and Pashto and Bahasa Indonesia and Hausa (spoken by some Nigerian Muslims) and all the other languages of the Islamic world. Very readily distinguishable situation on those scores, as well.

    These aren’t “tired” arguments because this is a new situation. With the sick exception of slavery — we have never before imported large numbers of people into our country who were so drastically different from our founding stock in terms of genetics, aptitudes, culture, outlook. This is the first time around, and it may well be our last, too.

    Thanks for trying to stick up for us once-scary Italian and Slavic immigrants, but we have already proven ourselves amply here in the USA and Canada over a long period of time. There was never good reason to fear Italians and Slavs to the degree that they were feared and slandered. There sure as Hell IS good reason to recognize the deadly threat that people pose who are nothing like “us”, meaning northern and western and southern and Eastern Europeans alike.

    • Replies: @RadicalCenter
  14. @Diversity Heretic

    Clever and apt analogy, Heretic. I love my paisan “The Judge”, but he is trying to apply concepts and rules to people for whom they were distinctly never intended, and never suitable.

  15. @RadicalCenter

    P.S. This is not “just a racial matter” or attributable to “mean racist ideas.” Find the whitest Muslims in the world, e.g. some Chechens or some European converts, and we still would be out of our minds to let them settle in our countries. It’s an ideology that inherently cannot accept the right of nonMuslims to live in peace, safety, and freedom anywhere in the world.

    As the great Pym Fortuyn of the Netherlands tried to warn his countrymen, tolerating an inherently aggressive and intolerant fifth column can never end well for us and our posterity.

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