Recently by Bob Bauman: On Hitler's Mountain: ItCanHappenHere
Ten years ago today, on Oct. 26, 2001, President George W. Bush signed into law the odious legislation known as the U.S.A. PATRIOT Act, perhaps the single most unconstitutional enactment by the U.S. Congress since the Alien and Sedition Acts of 1789.
A panicked Congress, eager to be seen as “doing something,” overwhelmingly passed the law only weeks after the Sept. 11, 2011 terror attacks in New York and Washington.
In an atmosphere of palpable fear, with haste and secrecy, in the name of the “war on terrorism,” Congress adopted the Act without hearings, giving the U.S. executive branch and its police agencies sweeping powers that undermine both the Constitution and the Bill of Rights.
The Act was passed with little debate by senators and congressmen – most of whom did not, and could not, even read the bill. When the vote was taken no final printed copies were available.
Other than civil libertarians and those who have suffered under this law, a decade later, like the congressman who voted for the Act, most Americans still know little about how drastically the Act restricts their rights and liberties. (For a copy of my detailed expose of the PATRIOT Act Report, click here.)
One of the principal reasons for this public ignorance is that the Act imposes enforced silence on those it touches with its operations, threatening them with fines and jail if they publicly discuss what happens to them.
Section 215 of the Act violates the Fourth Amendment by allowing government police to conduct searches without a warrant and without showing any probable cause and the FBI has used Section 215 to obtain financial and even medical records. This provision violates First Amendment free speech by prohibiting those who are served with the orders from disclosing that fact to others, even where there is no real need for such secrecy.
This secrecy is only a part of an alarming system of government mass surveillance that has been erected, about which most Americans know very little.
The massive Department of Homeland Security (DHS), an unnecessary conglomeration of 22 agencies and nearly 200,000 employees, together with an out of control FBI and CIA, engage in massive surveillance of all of us, not just suspected terrorists or criminals.
Our phone calls, our emails and website visits, our financial records, our travel itineraries, and our digital images captured on powerful surveillance cameras are adding to the mountains of data being mined for suspicious patterns and associations.
In the last decade, civil liberties groups have criticized the PATRIOT Act as going too far by scooping up too much data and violating people’s rights to privacy.
One Man Challenge
Nicholas Merrill from New York may be one of the few people to fight a request for information from the FBI that came in the form of a “national security letter.” As I noted above, the Act made it easier for authorities to demand records from Internet service providers like Merrill’s company. But Merrill’s the only person who’s gone to court asking the right to talk about it.
Merrill says: “It’s time to have an open discussion about the direction that our country’s going in terms of all this secrecy and justifying everything with national security. I find it upsetting that there’s still so much secrecy surrounding these powers and their actual use, even to this day.”
20,000 FBI Violations
The record of the FBI in the last decade is one long list of abused powers and unconstitutional acts, followed by apologies and promises to sin no more – but only when they were caught.
In 2002, I reported that the FBI quietly had been asking offshore banks and other financial institutions to review their records for transactions involving scores of U.S. small businesses, organizations and people, none of whom had been charged with any crime.
In 2007 I wrote about a U.S. Justice Department’s Inspector General Report criticizing the FBI abuse of these national security letters in obtaining thousands of telephone, business and financial records without prior judicial approval.
The DOJ report said the FBI lacked controls to assure the subpoenas were issued properly. Although they citied the PATRIOT Act as their authority, the DOJ found the FBI issued illegally more than 20,000 NSLs.
The FBI’s supposed object was to find terrorists and their cash. The use of these “national security letters” marked a drastic change in the relationship between law enforcement and the financial industry, which used to surrender records to government agents only after official proof of probable cause that a crime had occurred, or was about to occur, and after a search warrant was issued by a federal judge or magistrate.
Sneak and Peek
Another part of the Act, the so-called sneak and peek provision, lets FBI agents search a person’s home or business with a judge’s warrant, but without telling the person they’re doing it.
“We’re now finding from public reports that less than 1% of these sneak and peek searches are happening for terrorism investigations,” says Michelle Richardson, of the ACLU Washington office. “They’re instead being used primarily in drug cases, in immigration cases, and some fraud.”
Obama’s Greater Surveillance Plans
Richardson, at the ACLU, says President Obama has even bigger surveillance plans in the works now. Obama’s cyber security proposal “…makes the PATRIOT Act look quaint,” Richardson says. “And the collection that it would allow would outpace anything that’s being done under the PATRIOT Act.”
Merrill, who wasn’t able to talk to his family for years about the FBI request or his lawsuit, still wonders how many other people have gone through a similar experience. Two Democratic senators, Ron Wyden of Oregon and Mark Udall of Colorado, have demanded that the Justice Department go public with a classified interpretation of the Act that they say would surprise and anger the public.
“It’s time to have an open discussion about the direction that our country’s going in terms of all this secrecy and justifying everything with national security,” Merrill says. He hopes the courts agree with him, as do I.
Reprinted with permission from The Sovereign Investor.
Robert E. Bauman is a former Member of the United States House of Representatives from Maryland, (1973–1981). He is also a former federal official and state legislator; Member, Washington, DC Bar; Graduate of the Georgetown University Law Center (1964) and the School of Foreign Service (1959), Washington, DC. Robert currently serves as legal counsel for the Sovereign Society.