Judge Andrew Napolitano

On June 2, 2009, a janitor in an office building in New Brunswick, N.J., noticed what he thought was terrorist-related literature and sophisticated surveillance equipment in an office he had been assigned to clean. He told his boss, who called the local police, who notified the FBI. Later in the day, the FBI and the New Brunswick police broke into the office and discovered five men busily operating the equipment. Four of the men were police officers from the New York City Police Department (NYPD), and the fifth was a CIA agent.

The conundrum faced by all of these public servants soon became apparent. Who should arrest whom?

Should the FBI agents and the local cops arrest the NYPD and the CIA agent for violating the U.S. and New Jersey constitutions, both of which prohibit searches and seizures without search warrants, and for violating federal and New Jersey laws against wiretapping and surveillance? Should the NYPD and the CIA agent arrest the FBI agents and the local cops for breaking and entering and obstructing a governmental function without a search warrant? Did the FBI and the local cops even have a search warrant? Was the NYPD/CIA surveillance a lawful governmental function?

No one at the scene of this unique encounter was arrested. In return for not becoming a defendant, everyone agreed not to become a complainant. The FBI and the New Brunswick police went home, and the NYPD cops and their CIA mentor went back to their surveillance -- even though everyone in that office had sworn the same oath to uphold the U.S. Constitution and the laws written pursuant to it.

Among those laws are the state statutes that limit the authority and jurisdiction of local cops to the municipality that employs them, and the federal statutes that limit the legal ability of CIA agents to steal secrets only from foreigners outside the U.S. Stated differently, the NYPD has no authority or jurisdiction to engage in surveillance in New Jersey, and the CIA has no authority or jurisdiction to engage in surveillance in the U.S.

Nevertheless, we now know from the candid admissions last week of NYPD Commissioner Raymond Kelly that the NYPD has been spying without search warrants on Muslim groups in New Jersey and elsewhere for 10 years. Former New Jersey acting governor and current state Sen. Richard Codey recalls authorizing the NYPD -- and not the CIA -- to inspect railroads and ferries that travel back and forth between New Jersey and New York in 2005. He says he never authorized surveillance. No public official in New Jersey has come forward to acknowledge awareness of all this, and Kelly says the spying will continue. But he needs a search warrant.

Judge Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year.