In the wake of September 11, 2001 as millions of Americans eyes were glued to our television sets watching as President Bush gave his State of the Union address, we all trusted in a government that we thought was infallible. Carted before the American people as a means to preserve, protect and defend the Constitution and our liberties, Americans would soon learn that it did the exact opposite. Members of Congress were not even able to read the full text before taking a vote.
Read the following two article and tell me what you think.
The Patriot Act Is at war with the Constitution
STATEMENT OF BRUCE FEINON BEHALF OF CAMPAIGN FOR LIBERTY
RE: THE USA PATRIOT ACT: DISPELLING THE MYTHS
BEFORE THE HOUSE JUDICIARY COMMITTEE
MAY 11, 2011
I am grateful for the opportunity to speak on behalf of the Campaign for Liberty about the USA Patriot Act. Provoked largely by the gruesome abominations of 9/11, the legislation was born of fear and uncertainty from abroad. Fear, however, is the fount of tyranny. James Madison, father of the Constitution, warned centuries ago in opposing the tyrannical Alien and Sedition Acts of 1798: “Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger real or pretended from abroad.” At the constitutional convention of 1787, Madison similarly recognized the inclination of government to wave a banner of foreign danger to excuse the destaruction of domestic liberties: “The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”
The 342-page USA Patriot Act passed without inquiry into whether arming the government with muscular investigatory tools justified the corresponding intrusions on the right to be left alone — the right most valued by civilized people. The Patriot Act was portrayed as a necessary defense against foreign agents and international terrorists. Citizen liberties were relegated to extras in a Cecil B. De Mille cinematic extravaganza
Despite the good intentions of its architects, the Patriot Act betrays bedrock constitutional principles. The individual is the center of the Constitution’s universe. Aggrandizing government is the center of the Patriot Act. The Constitution salutes freedom and citizen sovereignty over absolute safety and citizen vassalage. The Patriot Act turns that hierarchy on its head. Where experience and facts are inconclusive as regards the need for government authority, the Constitution’s default position is liberty. Under the Patriot Act, if a threat passes a microscopic threshold of danger, a Big Brother government is exalted, a descendant of the 1% doctrine. The authorization of “lone wolf”surveillance under the Foreign Intelligence Surveillance Act (FISA) is exemplary. It has never been employed, yet it is defended as a cornerstone of the nation’s defense against a second edition of 9/11.
The Alien Act of 1798 was similar. It answered political or popular fears of French immigrants. The President was empowered to deport unilaterally any immigrant thought “dangerous to the peace and safety of the United States.” During its two-year life, the President never once invoked the Act’s deportation authority. Congress sensibly declined to renew it.
The makers of the Constitution venerated man’s spiritual nature, his moods, and his intellect, to borrow from Justice Louis D. Brandeis. They sought to protect Americans in their beliefs, their attitudes, their seclusions, and their challenges to conventional wisdom. They crowned citizens with the right to be left free from government encroachments, the hallmark of every civilized society. To protect that right, Justice Brandeis sermonized, “[E]very unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” The Patriot Act, nevertheless, shrivels the right to be left alone from Government snooping and surveillance. It sneers at Benjamin Franklin’s admonition: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Patriot Act champions boast that only a handful of judicial rulings have cast a cloud over its provisions, for instance, gag orders on National Security Letter recipients. But even the U.S. Supreme Court stumbles. In Olmstead v. United States (1928), the Court held conversations were outside the ambit of the Fourth Amendment because its text protected only “persons, houses, papers, and effects.” In Katz v. United States (1967), thirty-nine years later, the Court overruled Olmstead and held the Amendment protected “reasonable expectations of privacy.” As Saint Paul preached, “the letter killeth, but the spirit giveth life.” 2 Corinthians 3: 6. The Supreme Court sustained the constitutionality of race-based concentration camps for Japanese Americans during World War II. Congress repudiated the Court’s odious decisions in the Civil Liberties Act of 1988.
No federal court voided the Sedition Act of 1798, despite its flagrant trespass on free speech. Over 150 years later in New York Times v. Sullivan (1964), the Supreme Court denounced the Act as unconstitutional. Many Patriot Act provisions hinge on the decision of the High Court in U.S. v. Miller (1976), that bank records or other information “voluntarily”shared with third parties are outside a suspect’s zone of privacy protected by the Fourth Amendment. The Miller precedent seems increasingly anachronistic in the Age of the Internet in which a virtual diary of individual activities is in the hands of third party Internet Service Providers.
Moreover, extra-constitutional reasons explain the dearth of court challenges. The lion’s share of information sought under the Patriot Act is aimed at third parties, not the target of surveillance or investigation. The former have little or no incentive to incur the legal costs and public opprobrium inherent in fighting the government. In addition, many recipients of Patriot Act demands, like telecommunications companies or banks, are motivated to cultivate government goodwill to preserve contracts or friendly regulatory relations. The government has also sought to stigmatize any opponent of the USA Patriot Act as semi-traitorous or un-American through its title or otherwise. Then Attorney General John Ashcroft decried its critics as “aiding and abetting terrorists.” But in the true Republic created by our Founding Fathers, the people censure the government; the government does not censure the people. Finally, the vast majority of victims of illegal or unconstitutional surveillance under FISA are never informed of the spying. They do not know the government has compiled a dossier against them.
In light of the hostility toward Patriot Act dissenters generated by the Government and general concealment of violations, the diminutive number of federal court cases is readily understandable. Why bring a lawsuit and risk losing your neighbor, your friends, your job, and your public standing? It might equally be said in defense of Jim Crow that “separate but equal”must have been benign because so few blacks initiated lawsuits seeking its reversal (at the risk of their homes, families, ostracisms, and lives).
At least one Member of Congress has insinuated that a constitutional violation is harmless as long as the Government conceals the violation from the victim, for example, an unconstitutionally seized and retained email or phone call. That assertion seems first cousin to the nonsense that government assassinations are innocuous if the victims are never acknowledged and their bodies are never found.
Every Founding Father — every Member of the Constitutional Convention of 1787 — would have been appalled at the Patriot Act. They were electrified by patriot James Otis’ denunciation in 1761 of villainous Writs of Assistance — general search warrants which empowered petty officers to invade privacy and liberty on bare suspicion without oath. Otis elaborated: “It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law that ever was found in an English law book…Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, and murder any one within the realm.” Patriot John Adams was awed, and remarked, “[T]hen and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”
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Let the Patriot Act Expire
Congress will soon be considering renewal of major portions of the Patriot Act. The Patriot Act is generally promoted as the principal legislative tool being used to fight international terrorism, but it played no role whatsoever in the recent killing of al-Qaeda leader Osama bin Laden. The Act is, in reality, a devastating and poorly conceived bit of legislation originally approved just after 9/11. It will soon be up for an extension in the US Senate prior to the expiration of some key elements on May 27th. President Barack Obama, who criticized it while he was a candidate but apparently has had a change of heart since that time, favors its renewal and his Attorney General Eric Holder recently endorsed its renewal. Most members of Congress, few of whom have ever read the entire act, want it renewed. The mainstream media likes the Patriot Act, one suspects, because it is difficult to fault legislation that has “Patriot” as part of its name.
There is growing suspicion, even among congressmen, that the Patriot Act just might be too damaging to civil liberties at a time when the terrorism threat appears to be receding. Senator Rand Paul led the charge in the Senate back in February that resulted in a temporary 90 day continuation of the provisions of the act that will expire this month. The Act will again be up for Senatorial approval but, unfortunately, the planned one week long open debate in front of the full Senate and under the scrutiny of the media might well be canceled due to lack of interest by Republicans and Democrats alike. It would have been the first time that has happened since 2001, when the Act first became law.
Broadly speaking, the Patriot Act was designed to make it easier for law enforcement to investigate US citizens and permanent residents by easing legal restraints on records and activities that were hitherto considered private or required a judge’s order to access. The Act has enjoyed bipartisan support since 2001.
Title 2 of the Patriot Act, makes it possible to investigate any foreign suspect as part of a law enforcement effort to obtain foreign intelligence information even if there was no evidence that a crime had been committed. The difference is critical as the police previously had to have actual evidence of a crime while the new procedure permitted investigation of just about anyone who could plausibly be linked to a foreign suspect to obtain information, allowing law enforcement to conduct wide ranging fishing expeditions. The Act also lifted the old requirement that law enforcement demonstrate that the target of an approved investigation was a foreign national and a possible agent of a foreign government. Anyone linked to the inquiry, even a US citizen, could become a person of interest. This was referred to as a “lone wolf” provision and it is one of the areas of the Patriot Act that is up for renewal.
Title 2 also permitted any district court in the United States to issue surveillance orders and search warrants in connection with proposed terrorist investigations and the Act specifically included electronic communications and voicemail records as subject to the warrants. Using the warrants, the FBI is able to access from the internet service provider all records on a user, to include name, address, telephone billing records, session details, and payment information to include bank and credit card records. This feature of the Act is also up for renewal this month.
The third feature of the Act that is up for extension at the end of May is roving wiretaps, permitting law enforcement to obtain warrants that allow them to switch from one communications medium to another if they believe that the target is changing his method of communication to make monitoring him more difficult. This means that the FBI is empowered to tap multiple phones or computer lines simultaneously based on one blanket warrant. Previously law enforcement had to show cause for the tap and it was limited to the telephone or computer line specified in the request. Under Title 2 the FBI was also permitted to obtain whatever tangible public records are available to assist in an investigation. This was the so-called library clause, where library borrowing records could be accessed by the police.
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