Congress Has Assaulted Our Freedoms in the Patriot Act
Andrew P. Napolitano
The compromise version of the Patriot Act to which
House and Senate conferees agreed last week and for which the House
voted yesterday is an unforgivable assault on basic American values
and core constitutional liberties. Unless amended in response to
the courageous efforts of a few dozen senators from both parties,
the new Patriot Act will continue to give federal agents the power
to write their own search warrants – the statute’s newspeak terminology
calls them "national security letters" – and serve them
on a host of persons and entities that regularly gather and store
sensitive, private information on virtually every American.
Congress once respected the Fourth Amendment until
it began cutting holes in it. Before Congress enacted the Foreign
Intelligence Surveillance Act (FISA) in 1977, Americans and even
non-citizens physically present here enjoyed the right to privacy
guaranteed by the Fourth Amendment. That Amendment, which was written
out of a revulsion to warrants that let British soldiers look for
any tangible thing anywhere they chose, specifically requires that
the government demonstrate to a judge and the judge specifically
find the existence of probable cause of criminal activity on the
part of the person whose property the government wishes to search.
The Fourth Amendment commands that only a judge can authorize a
FISA unconstitutionally changed the probable
cause of criminality requirement to probable cause of employment
by a foreign government, hostile or friendly. Under FISA, if the
government can demonstrate the foreign agency or employment status
of the person whose things it wishes to search, the secret FISA
court will issue the search warrant.
But even FISA respects constitutional liberty,
since it prohibits prosecutions based on evidence obtained from
these warrants. Thus, if a FISA warrant reveals that the embassy
janitor is really a spy who beats his wife, he would not and could
not be prosecuted for either crime because the evidence of his crimes
was obtained in violation of the Fourth Amendment’s requirement
of a judicial finding of probable cause of criminal activity. Instead
of being prosecuted, he would be deported.
A year later in 1978, cutting yet another hole
in the Fourth Amendment, Congress revealed its distaste for fidelity
to the Constitution and its ignorance of the British government’s
abuse of the colonists by enacting the Orwellian–named, Right to
Financial Privacy Act. This statute, for the first time in American
history, let federal agents write their own search warrants, but
limited the subjects of those warrants to financial institutions.
Just like FISA, it recognized the unconstitutional nature of evidence
obtained by a self-written search warrant, and banned the use of
such evidence in criminal prosecutions.
In 1986, Congress continued to cut. It disregarded
yet again the Fourth Amendment’s protection of privacy when it enacted
the Electronic Communications Privacy Act which allowed federal
agents to serve self-written search warrants on collectors of digital
financial data, but continued to recognize that evidence thus obtained
was constitutionally incompetent for criminal prosecution purposes.
The deepest cut came on October 15, 2001 when
Congress enacted the Patriot Act. With minimal floor debate in the
Senate and no floor debate in the House (House members were
given only 30 minutes to read the 315 page bill), Congress enacted
this most unpatriotic rejection of privacy and constitutional guarantees.
Together with its offspring the Intelligence Authorization Act for
Fiscal 2004 and the Intelligence Reform Act of 2004, the Patriot
Act not only permits the execution of self-written search warrants
on a host of new subjects, it rejects the no-criminal-prosecution protections of its predecessors by requiring evidence obtained
contrary to the Fourth Amendment to be turned over to prosecutors
and mandating that such evidence is constitutionally competent
in criminal prosecutions.
The new version of the Patriot Act which the
Senate will debate this weekend purports to make all of this congressional
rejection of our history, our values, and our Constitution the law
of the land.
So, if your representative in the House has
voted, or your Senators do vote, for the House/Senate conference
approved version, they will be authorizing federal agents on
their own, in violation of the
Constitution, and without you knowing
it, to obtain records about you from your accountant, bank,
boat dealer, bodega, book store, car dealer, casino, computer server,
credit union, dentist, HMO, hospital, hotel manager, insurance company,
jewelry store, lawyer, library, pawn broker, pharmacist, physician,
postman, real estate agent, supermarket, tax collectors, telephone
company, travel agency, and trust company, and use the evidence
thus obtained in any criminal prosecution against you.
Why would Congress, whose members swore to
uphold the Constitution, authorize such a massive evasion of it
by the federal agents we have come to rely upon to protect our freedoms?
Why would Congress nullify the Fourth Amendment–guaranteed right
to privacy for which we and our forbearers have fought and paid
dearly? How could the men and women we elect to fortify our freedoms
and write our laws so naïvely embrace the less-freedom-equals-more-security
canard? Why have we fought for 230 years to keep foreign governments
from eviscerating our freedoms if we will voluntarily let our own
government do so?
The unfortunate answer to these questions is
the inescapable historical truth that those in government – from
both parties and with a few courageous exceptions – do not feel
constrained by the Constitution. They think they can do whatever
they want. They have hired vast teams of government lawyers to twist
and torture the plain meaning of the Fourth Amendment to justify
their aggrandizement of power to themselves. They vote for legislation
they have not read and do not understand. Their only fear is being
overruled by judges. In the case of the Patriot Act, they should
be afraid. The federal judges who have published opinions on the
challenges to it have all found it constitutionally flawed.
The Fourth Amendment worked for 200 years to
facilitate law enforcement and protect constitutional freedoms before
Congress began to cut holes in it. Judges sit in every state in
the Union 24/7 to hear probable cause applications for search warrants.
There is simply no real demonstrable evidence that our American-value-driven-constitutional-privacy-protection-system
is in need of such a radical change.
A self-written search warrant, even one called
a national security letter, is the ultimate constitutional farce.
What federal agents would not authorize themselves
to seize whatever they
wished? Why even bother with such a meaningless requirement? We
might as well let the feds rummage through any office, basement,
computer, or bedroom they choose. Who would trust government agents
with this unfettered unreviewable power? The Framers did not. Why
would government agents bother going to a judge with probable cause
seeking a search warrant if they can simply write their own? Big
Brother must have caught on because federal agents have written
and executed self-written search warrants on over 120,000 unsuspecting
Americans since October 2001.
Is this the society we want? Have we ultimately
elected a government to spy on all of us? The Fourth Amendment is
the lynchpin of our personal privacy and individual dignity. Without
the Fourth Amendment’s protections, we will become another East
Germany. The Congress must recognize this before it is too late.
P. Napolitano, a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel, and the author
Chaos: What Happens When the Government Breaks Its Own Laws.
© 2005 LewRockwell.com