A Constitutional Disaster


The Nation

[posted online on October 21, 2005]

While natural disasters in the Gulf Coast and the man-made disaster in Iraq continue to grab the public's attention, a constitutional disaster quietly threatens the nation.

The USA Patriot Act's renewal is now almost a fait accompli--accepted by all but the most steadfast civil libertarians in Congress. The House and Senate have separately voted to approve the law with only minor changes, and the final conference committee action and vote is expected within the next week or so. None of the provisions of the law that were slated to sunset now appear likely to do so.

This law, enacted during a "state of emergency" declared by President Bush and intended to be re-visited in calmer times, is now effectively being made permanent. California Republican Rep. Dana Rohrabacher has strongly objected to the reauthorization on this ground.

The Patriot Act has been and will continue to be used mainly against ordinary Americans accused of crimes unrelated to terrorism, or those who disagree with government policies or happen to be immigrants or of the Muslim faith.

The result is likely to be an enduring shift of power from the legislative and judicial branches to the executive branch--and less privacy and liberty for all.

New Supreme Court Chief Justice John G. Roberts Jr. is unlikely to offer much relief; he has supported the Administration's so-called "war on terror" policies. Unlike retiring Justice Sandra Day O'Connor, who wrote last year that the President did not have a "blank check" even in times of war, her proposed replacement, Harriet Miers, if confirmed would likely be more accommodating on these issues. Granting the President such broad new powers, especially given today's surveillance technologies, would change the very foundations of the American body politic.

A Campaign of Deception

It is now well-known that truth is not this Administration's cardinal virtue. What is less well-known is how sustained and deceptive a campaign has been waged to retain the broad powers of the Patriot Act.

Going back to former Attorney General John Ashcroft's orders to all US Attorneys to defend the law (which most of them did [though a number did object]), and to the Department of Justice website repeating myths about the law in the guise of exposing those myths, the effort has been considerable.

And successful. In the House hearings on reauthorizing the law in July, a number of representatives took the floor to repeat the talking points that the law raises no constitutional or civil liberties issues; merely makes updates to track modern technology; simply gives law enforcement the same tools against terrorists that they had for mobsters and drug dealers; and has occasioned no abuses whatsoever.

New Mexico Republican Rep. Heather Wilson assured Americans that they need not fear the law, since it is only directed against foreigners, and because law enforcement needs "a court order in order to get any business records or library records or anything else."

Neither point is true. The law can be and has been used overwhelmingly against Americans. The national security letters under Section 505 are akin to administrative subpoenas that demand documents without any court involvement at all, and even the secret foreign intelligence surveillance court in Section 215 must issue warrants if the FBI's application is formally in order.

Texas Republican Rep. 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.

Although the secrecy and gag orders in the law make it difficult to know the full extent of abuses, the Patriot Act has been notoriously used against innocent people like Portland attorney Brandon Mayfield (wrongly accused of involvement in the Madrid bombings); Muslim student Sami al-Hussayen (wrongly accused of material support for terrorism by exercising First Amendment rights to post publicly available material on his website); and foreign professors and intellectuals (including moderate Muslim professor Tariq Ramadan, who could have helped build bridges to the Muslim world but was excluded from accepting a professorship at Notre Dame through the Patriot Act).

The government has initiated deportation proceedings against even lawful permanent residents for engaging in constitutionally protected speech reflecting viewpoints with which the government disagrees, while major Muslim charities have had their assets frozen based on unchallengeable secret evidence. In one reported court case, an unnamed Internet service provider was even served with a national security letter that was later declared unconstitutional by a federal court on the grounds that it invaded Fourth Amendment privacy, by forcing disclosure of e-mail and websurfing records, and infringed First Amendment free speech by prohibiting the ISP from telling anyone about the letter.

And while the Administration maintains that no librarian has been served an order to disclose patron records, a recent federal court decision confirms the American Library Association survey and the private reports that many of us had received: Hundreds of librarians have been approached for records. The law has been formally invoked at times, but need not be: Librarians know it exists and that they can be jailed for noncompliance. In a recent federal court decision, the gag order preventing the librarian from disclosing such an order under the Patriot Act was held

unconstitutional. The government is appealing the decision.

The Value of Truth

From its founding, the United States has put a premium on "self evident" truths, including the liberties in the Bill of Rights. The Bush Administration's disregard for truth when defending its invasions of our fundamental liberties (and its other invasions, for that matter) is especially ironic when one considers the immense practical value of the truth-seeking that underlies so many of these liberties.

The First Amendment protects vigorous debate in the marketplace of ideas and critical dissent; freedom of assembly, press, petition, conscience and opinion; and tolerance for different forms of political and religious truth. The Fourth Amendment protects the privacy needed to gather information and form independent beliefs and opinions contested in clashes over truth. The Fifth Amendment's due process of law and the Sixth Amendment's right to counsel and to confront witnesses protect adversarial systems aimed at allowing the truth to emerge, thereby punishing solely the guilty and sparing the innocent. The Eighth Amendment's prohibition on cruel and unusual punishment recognizes that coercion can taint truth. The Fourteenth Amendment's guarantee of equal protection again supports effective law enforcement based on true facts instead of false stereotypes.

Truth and Power

Harvard professor Laurence Tribe recently delayed the latest volume of his seminal constitutional law treatise. His reason? Constitutional law is in such flux that "profound fault lines have become evident in the very foundations of the enterprise, going to issues as fundamental as whose truths are to count and, sadly, whose truths must be denied."

Idaho Republican Rep. Butch Otter similarly lamented the declining fidelity to truth during the House Patriot Act debate. Saying he was "embarrassed to be on this side of the aisle," he emotionally referenced John Stuart Mill and criticized the distortions and lack of full and fair debate in terms that captured the essential bond between liberty and truth: "The very thing that the Patriot Act is supposed to give to this country, that the proponents of it say gives to this country, is being denied on this floor today, and it is being denied because I think people are afraid to be exposed to the truth."

Sadly, the Patriot Act's renewal is about raw power--and maintaining power even at the cost of American values and what are, after all, deeply conservative but widely shared principles. How else can one explain the distortions and deceptions described above and the massive betrayal of the core conservative tenets of respect for the Constitution and Bill of Rights, limited government, individual liberty, federalism and the rule of law? How else can one explain the most democratic arm of government, the House of Representatives, ignoring the broad nonpartisan concern expressed about the Patriot Act in the resolutions independently passed by Bill of Rights Defense Committees in nearly 400 communities (and seven states) nationally, not to mention the 18,000 cities covered by the National League of Cities resolution, and similar resolutions and concerns raised by myriad other organizations? Legislators representing the 400 districts that specifically passed resolutions were more inclined to be critical, but those from other districts were overwhelmingly passive on the issues or complicit in undermining liberty.

Thomas Jefferson believed that "an informed democracy will behave in a responsible fashion." But the converse is also true: Systematic deception blocks responsible democracy. We would do well to recall the oft-repeated words relating truth and liberty: "Know the truth, the truth shall set you free."