"Patriot Act" by Jack Higgins
THE FOURTH AMENDMENT
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Updated: November 3, 2011 10:32AM
If U.S. Rep. Ron Paul accomplishes nothing else in his campaign for the presidency, he has kept a needed spotlight on how quick we are as a nation to trade away our liberties for small measures of additional security.
In Iowa last weekend, where Paul came in second in the Republican Party’s straw poll, he consistently pressed a message that thrilled the party’s libertarian wing but annoyed the rest of them. The Patriot Act, he said — a law passed in a panic just weeks after the Sept. 11 attacks that dramatically expands the government’s authority to spy on citizens — is dangerously unconstitutional.
“The Patriot Act is an attack on our liberties and the Fourth Amendment,” he said. “We cannot protect liberty by taking liberty away from the American people.”
Criticism of the Patriot Act at this point might seem a little late, given that Congress and President Barack Obama reauthorized the law in May for another four years. But any debate that thoughtfully addresses the inherent tension in a democracy between personal freedoms and national security is never too little or too late.
And while the Patriot Act will remain the law of the land until at least 2015, civil libertarians are pushing the Obama administration to reveal its secret written interpretation of this law and of a related surveillance law. Two U.S. senators with insider knowledge, as members of the Senate Intelligence Committee, warn that Americans would be appalled if they knew how broadly the Justice Department has interpreted what the law allows government snoops to do.
The Patriot Act arguably runs afoul of the Constitution’s Bill of Rights in any number of ways, a particularly good example being the so-called “library records provision.” Under this provision — Section 215 — the FBI can obtain a court order forcing libraries and businesses to produce “any tangible things” that might assist in a terrorism investigation. Examples offered in the law include “books, records, papers, documents, and other items.”
On the face of it, this might not seem objectionable. Of course government needs access to records in terrorism investigations, and grand juries and the police have long had access to such records in criminal investigations. Defenders of Section 215 point to how the grand jury investigating the 1996 bombing in Atlanta’s Olympic Park subpoenaed bookseller records to show that a suspect, Eric Rudolph, bought a book on bombs.
Too wide a net
But unlike in a criminal investigation, the Patriot Act allows the FBI access to private records — “any tangible things” — even if the person targeted has been connected to no illegal activity at all, let alone terrorism. The only requirement is that the materials being sought must be “connected to” or “relevant to” an ongoing investigation. The law allows the FBI to cast too wide a net.
“The government might ask for ‘all the phone records’ of everyone making a call to Saudi Arabia last month or last year, or all the records of computer searches on ‘jihad’ or all records of people flying to Frankfurt,” said James X. Dempsey, executive director of the Washington-based Center for Democracy & Technology. “A judge might approve those requests as ‘relevant.’ ”
In this respect, Section 215 of the Patriot Act violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing “probable cause” that the person has committed or will commit a crime.
Section 215 further violates the Fourth Amendment, the American Civil Liberties Union argues, by failing to require that the FBI inform a person — even after the fact — that his or her privacy has been compromised. That is to say, should the feds decide to snoop into the paper trail of your life, you need not be told and may never know.
But if the FBI is checking out, say, the emails you wrote on a computer at your local library, couldn’t the librarian tell you? No. Section 215 places a gag order on the librarian, a fairly obvious infringement on the librarian’s First Amendment’s right to free speech.
A glass half empty
Constitutional disputes, for all their intricate legal arguments, are often at bottom a matter of subjective differences of opinion. Is the glass half empty or half full? Is a little more security here worth a little less liberty there? Case in point is the different reaction defenders and critics of Section 215 have had to language that limits the FBI’s ability to investigate American citizens “solely” on the basis of such things as what books they read.
Defenders of the Patriot Act, such as the conservative Heritage Foundation, find comfort in the fact that the law says an investigation cannot be conducted “solely upon the basis of activities protected by the First Amendment.” But critics, such as the ACLU, are outraged that such perfectly legal activities can be grounds at all for an investigation, requiring only that the FBI present some shred of additional justification.
“It simply could be a relationship with someone caught up in an investigation,” said Ed Yohnka, spokesman for the ACLU of Illinois.
Our inclination is to see the glass half empty and oppose this potentially dangerous infringement on the First Amendment. We have little confidence that it would not be — or, for that matter, has not been — abused by government agents. We remember too well the guilt-by-association communist witch hunts of the 1950s and the Chicago Police Red Squad surveillance of political organizations during the 1970s.
At the moment, perhaps the most pressing issue with respect to Section 215 is how broadly it is being interpreted by the Obama administration — we just don’t know. But Senators Mark Udall (D-Colo.) and Ron Wyden (D-Ore.), members of the Senate Intelligence Committee, apparently have read the Justice Department’s secret interpretation of the law — possibly written during the Bush administration — and are deeply troubled by it. When Congress returns to Washington in the fall, they vow, they will push to have this document made public. They also will call for making public the Justice Department’s secret interpretation of government powers under the related Foreign Intelligence Surveillance Act.
“When the American people find out how their government has secretly interpreted the Patriot Act,” Wyden warned on the Senate floor in May, “they will be stunned and they will be angry.”
Can we agree on this much?
We don’t imagine that Congress will revisit and rework the Patriot Act, as unwise and unconstitutional as Section 215 and other provisions are. The politics are against it.
But can we agree on this much? The American people deserve to know, without further delay, how the White House is interpreting these powerful laws that allow spying on law-abiding citizens.
A vigilant public is the best check against government infringements on our liberties.