Two weeks ago, in his State of the Union address, President Bush called for renewal of the U.S. Patriot Act. Last week, U.S. District Judge Audrey Collins struck down part of the act as unconstitutionally vague.
The attorney general and FBI can force your bank, Internet service provider and telephone company to turn over your records, merely by writing a "national security" letter.
The president is wrong, the judge is right. That happens sometimes, which is why the U.S. constitutional system has checks and balances on the powers of the different branches of government.
But the Patriot Act tries to do away with those limits. Believe it or not, the most frightening aspect of the act is not its scary intrusion into our private lives. We should be even more concerned by the constitutional power grab imbedded in the terms of the Patriot Act. At every turn, this sweeping law tries to do away with judicial oversight of investigations conducted by the president and his appointed attorney general.
The Act is lengthy and complicated, of course, but a few of the highlights include:
- Merely by writing a "national security" letter, the attorney general and FBI can force banks, Internet service providers and telephone companies to turn over your records. No probable cause need be demonstrated, no warrant issued and no judge has to approve the order. This is done in secret, and the organizations forced to turn over your records are not allowed to tell you that your records have been seized.
- Searches or wiretaps can be authorized by a secret court (a special Foreign Intelligence Surveillance Court) as long as the government says there is a foreign intelligence component to the search. The court hearings are ex parte, meaning only one side of the case--the government's--is heard. Translation: This is a rubber-stamp for the feds. Like many of the intrusions authorized in the Patriot Act, not only can you not contest the government's request to search your property or records, you have no way of knowing it has even been requested.
- The so-called "sneak and peek" provision allows searches of your property as part of a criminal investigation to be kept secret any time the government says giving you notice of the search would jeopardize the investigation. Since that broad exception would cover most searches, and is not limited to foreign security investigations, the traditional "knock and announce" rule for executing warrants is endangered.
The Patriot Act also makes roving wiretaps easier to obtain, creates a new crime of domestic terrorism that could conceivably be applied to environmental or abortion protesters and allows the attorney general to bypass courts in ordering detentions of non-citizens. (Some of the Bush Administration's most egregious post-Sept. 11 actions, like making secret arrests of hundreds of Muslim immigrants and indefinitely holding 600 prisoners at Guantanamo Bay without charges, are not authorized even by the Patriot Act.)
Conservatives opposing the Act
Realizing they were acting in haste in the wake of Sept. 11, Congress wrote much of the Patriot Act so that it would expire in 2005, which is why the president is now asking for congressional support to renew it. But he shouldn't get it. Even high-profile conservatives like former House Speaker Newt Gingrich, along with hundreds of House Republicans, have come out in opposition to many of the excesses in the law. Congress has a chance to take a deep breath and figure out the post Sept. 11 landscape, and hopefully now they can see there is nothing patriotic about this act.
Like Bush's No Child Left Behind Act and the Healthy Forest Restoration Act, the title of the Patriot law is the opposite of its effect. (Wouldn't it make sense to apply truth-in-advertising standards to federal legislation? The Patriot Act would be the Erosion of Liberties Act, Patriot II would be renamed John Ashcroft is in Your E-mail Act, soon to be followed by the We Became A Police State When You Weren't Looking Act.)
Of course, we are justifiably concerned by the threat of terrorism. And of course we need to take reasonable measures to insure our safety. But even the recent historical precedent of our parents' and grandparents' eras--remember the internment of Japanese during World War II and the Communist witch hunts of the Cold War era--shows that over-reaction to security threats will be an embarrassment to our generation.
It would be an embarrassment to our country's founding generation, too. The Patriot Act undermines the founders' very clear intent to limit the power of the chief executive. The post-Revolutionary War Articles of Confederation government had no presidency, so the office was only grudgingly created at all. Inspired by John Locke, the founders erected constitutional barriers to keep the U.S. president from having tyrannical powers ... Powers to order, say, secret arrests, warrantless searches of our property and indefinite imprisonment.
Fran Quigley is a contributing editor to NUVO, where this article originally appeared -- ... -- and was recently named executive director of the Indiana Civil Liberties Union.