Thursday, June 23, 2005

Legal - & Unconstitutional

The following essay is from John W. Whitehead. He is a constitutional attorney & author & founder & president of The Rutherford Institute. He provides an excellent argument for letting the Patriot Reauthorization Act die the death it deserves. Eroding the fundamental right of citizens doesn’t make them safe. It just makes them less free to live unoppressed lives.

How Liberty Dies: The Patriot Reauthorization Act

Do our representatives understand how we feel? Or don’t they care? The recent approval by the Senate Intelligence Committee to reauthorize and expand the Patriot Act’s powers leaves one wondering if Congress listens to the American people anymore. Equally worrisome is the fact that the critical discussions and decisions surrounding expansion of the Act are taking place in secret, behind closed doors. What do our government representatives have to hide?

Since the passage of the Patriot Act six weeks after the 9/11 terrorist attacks, 378 local and county governments and seven state legislatures representing millions of Americans have passed resolutions or ordinances opposing aspects of the Patriot Act that they believe to be at odds with the United States Constitution. One City Council member from Arcata, Calif., described his town’s ordinance as “a nonviolent preemptive attack” on the federal government’s revision of the Bill of Rights. Yet our government continues to ignore these concerns and push through its own agenda.

At a massive 342 pages, the Patriot Act violates at least six of the ten original amendments known as the Bill of Rights—the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments—and possibly the Thirteenth and Fourteenth as well.

The Patriot Act was rushed through Congress, even though the majority of our representatives admitted to not reading it, reassured perhaps by the inclusion of a five-year sunset provision. But that sun does not seem to be setting on this chilling piece of legislation. Instead, the Senate Intelligence Committee is not only working to make the Patriot Act permanent, but also to expand its reach.

Among some of the widely cited concerns about the Patriot Act are that it redefines terrorism so broadly that many non-terrorist political activities such as protest marches or demonstrations and civil disobedience can be considered a terrorist act; grants the FBI the right to come to your place of employment, demand your personal records and question your supervisors and fellow employees, all without notifying you; allows the government access to your medical records, school records and practically every personal record about you; allows the government to secretly demand to see records of books or magazines you’ve checked out in any public library and Internet sites you’ve visited (at least 545 libraries received such demands in the first year following passage of the Patriot Act); and most egregious of all, it allows the FBI to enter your home through the use of a special warrant, search your personal effects and confiscate your personal property without informing you that they have done so.

Yet despite the many objections to these disturbing provisions within the Patriot Act, the Senate Intelligence Committee has wholeheartedly embraced the Patriot Reauthorization Act (PAREA), which takes government intrusion into the lives of average Americans to a whole new level.

For example, one “administrative authority” provision within PAREA, which would allow the FBI to write and approve its own search orders, represents a direct assault on the Fourth Amendment’s prohibitions against unreasonable search and seizure. Yet if Congress acts to approve what critics have termed “carte blanche for a fishing expedition,” the FBI will be in a position to conduct warrantless searches on people without having to show any evidence that they may be involved in criminal activities. This provision would also lift one of the last restrictions on special warrants for the FBI—namely, that the information be related to international terrorism or foreign intelligence.

Yet while government officials insist that the FBI needs additional tools to fight terrorism, a recent report suggests that all the FBI really needs to do is its job. A Justice Department report reveals that the same FBI that wants to do an end-run around our Constitution passed up on at least five chances in the months before 9/11 to locate two terrorist hijackers as they prepared for attacks on our country. The oversights were attributed to communication breakdowns, lack of urgency and bureaucratic obstacles, among other things. “What we found were sufficient deficiencies in the way the FBI handled these issues,” said Inspector General Glenn Fine. In other words, if the FBI and other intelligence agencies had simply done their jobs and followed up on leads, then there wouldn’t have been a need for the Patriot Act—and there certainly wouldn’t be a need for warrantless searches.

While it remains questionable whether the Patriot Act has really succeeded in protecting Americans against future acts of terrorism, these highly controversial additions to the Act will unquestionably succeed in gutting the Fourth Amendment. Of all the protections found in the Constitution, the Fourth Amendment stands as the final barrier between the privacy rights of Americans and the potential for government abuse of power. But if law enforcement officials can search your home and your records without having to go through a judge, then the concept of a man’s home being his castle will become as antiquated as the Model T.

Despite the fact that an increasing number of Americans are voicing their concerns about intrusions on their privacy, President Bush continues to express his support for extending the Patriot Act. One day after the 9/11 terrorist attacks, Bush declared, “We will not allow this enemy to win the war by changing our way of life or restricting our freedoms.” Yet if Congress succeeds in continuing to pass legislation that is at odds with our Constitution, we will have handed a definitive victory to our enemies by allowing unchecked police power to triumph over individual rights and the rule of law in this country. At that point, our government will be no better than the dictatorships we have for so long opposed on principled grounds.

In a Jan. 2003 interview with the Los Angeles Times, constitutional law professor Jonathan Turley remarked, “Since 9/11, the Constitution has gone from an objective to be satisfied to an obstacle to national defense. . . As these changes mount, at what point do we become something other than a free and democratic nation?” Americans would do well to heed the warning behind Turley’s words: with every piece of Patriot Act-type legislation that Congress passes, our basic constitutional protections are being undermined and we are, indeed, moving further away from being a free and democratic nation.
Bottomline: The draft of the expansion of the Patriot Act from the Senate Intelligence Committee is worse. The language provides no additional protections for innocent citizens. Instead, it would allow the Justice Department & the FBI more powers to secretly acquire secret information about American citizens without any judicial review in advance & without the knowledge of those being investigated.

This is an excellent example of more resulting in less.

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