A Constitutional Disaster

Nation: Patriot Act Debate Wages On In Background

(The Nation)  Texas Republican Representative Louie Gohmert parroted the arrest and conviction figures the Administration claims resulted from its international terrorism investigations — 395 and 212, respectively. The real arrest and conviction figures, the Washington Post found, are only a fraction (about one-tenth) of those proclaimed by Gohmert and President Bush.

But this is nothing new. Three years ago the nonpartisan General Accounting Office found that 75 percent of the "international terrorism" cases cited were misclassified. The Washington Post's recent investigation confirmed that most of these cases were minor immigration violations or criminal offenses unrelated to terrorism.

Original Intent

Many of these defenders of the law count themselves as "strict constructionists," supposedly hewing to the Constitution's text and the framers' original intent. The intent of the Fourth Amendment is not difficult to discern:

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.

In debate after debate that I and other critics of the law have had with DOJ and FBI officials, those officials have insisted that the law maintains the probable cause standard. They refuse to admit that "probable cause" appears nowhere in the law and that it routinely lowers the standard. Earlier this year Attorney General Alberto Gonzales finally made the concession that the law could usefully be amended by adding at least a "relevance" standard (lower than probable cause). While inadequate, an improvement in this direction will likely be contained in the renewed version of the law.

Still, does the new threat of terrorism suddenly make it "reasonable" to issue warrants without probable cause — i.e., individual, fact-based suspicion — tying a person to the offense? Such unlimited warrants from King George III were an important spur to the Declaration of Independence and the American Revolution. I doubt that such a venerable and practical constitutional requirement has somehow lost its value or authority today.

Notwithstanding the Administration's consistent protestations to the contrary, the Patriot Act implicates many other provisions of the Bill of Rights as well. These range from an overbroad definition of terrorism, chilling peaceful dissent under the First Amendment, to the allowance of potentially indefinite detention, flouting due process under the Fifth Amendment and the speedy trial guarantees of the Sixth Amendment.

The law's defenders maintain that it "specifically protects First Amendment activities" by providing that surveillance and investigations not be "conducted solely upon the basis of activities protected by the First Amendment." Of course, this is illusory protection, since no investigations are ever conducted solely on the basis of First Amendment activities; some other reason can always be posited, meaning that First Amendment-protected dissent can be a primary motivating factor.

Merely Sensible Updates?

Perhaps the most enduring justification for the Patriot Act is that it merely extends the same tools previously available against organized crime and drug dealers to terrorists. But this misleads. Repeated declarations by Administration officials that wiretaps could not previously be obtained against terrorists are simply false. Wiretaps could always be obtained for criminal investigations of terrorists. The Patriot Act expanded the legal grounds for roving wiretaps, in particular, to also make them available to the FBI under the separate counterintelligence authority (and lower standards) of the Foreign Intelligence Surveillance Act.

These broader surveillance powers can now be used even against innocent Americans not suspected of any crime or terrorism. And by importing the foreign intelligence powers previously available only against spies and terrorists into the domestic criminal context, the Patriot Act grants authorities broad and constitutionally dubious new muscle to use as they see fit.

The FBI's and CIA's history, along with the significant recent reports about investigation and harassment of peace groups, dissenters and organizations like the ACLU, should give us pause about uncritically accepting the deceptive rationalizations — especially with the political polarization and powerful new surveillance technologies available today.

No Abuses?

Chairman of the House Judiciary Committee James F. Sensenbrenner joined many in the latest floor debate in maintaining that "there is no evidence that the Patriot Act has been used to violate civil liberties." But this position ignores both the fact that the mere existence of such broad powers chills rights and is abusive, and the serious evidence of specific abuses that has come to light.