Our Liberties Under Siege
By Nat Hentoff
My respect continues to increase for the conservative defenders of our most fundamental liberties. A founder of the conservative movement, Paul Weyrich -- chairman and CEO of the Free Congress Foundation -- exemplifies this force when he writes: "Because of the War on Terrorism, America may be on the verge of becoming a national security state." Mr. Weyrich continues: "That means citizens will allow the state to do almost anything it wants so long as it justifies its actions in terms of 'national security.' In effect, the Constitution and the rule of law itself go out the window, along with our liberties."
There is also Bob Barr, with whom I once joined at a conference of the American Conservative Union to criticize sections of the Patriot Act. With customary clarity, he now states: "We believe in traditional conservative values, like accountability... To date, for example, the Justice Department has failed to disclose how many U.S. citizens' homes, businesses or records have been secretly searched under the Patriot Act provisions, such as Section 213 ('the sneak and peek' provision), or even how many National Security Letter searches (without any judicial supervision) have been executed."
And Rep. Roscoe Bartlett, Maryland Republican, a descendant of a signer of the Declaration of Independence, says resoundingly: "Under this so-called Patriot Act, each of us faces the prospect that the government could treat us as guilty with very little evidence... Supporters argue Americans should have no 'sanctuaries' of privacy. The government should be allowed to investigate us and search for evidence against us anywhere with as few limitations as possible. With this permanent expansion of government powers, we will no longer have areas, such as our homes, that deserve greater privacy protections. That is not the America that I know and love."
These and other such conservatives are in a direct line back to an early American lawyer James Otis, who helped precipitate the American Revolution. Appearing before a George III court in Boston in 1761, he argued against the Writs of Assistance, by which British customs officers could, in effect, write their own search warrants to explore the colonists' homes and offices. Similarly, today, with "sneak and peek" powers, government agents going before a rubberstamp, secret Foreign Intelligence Surveillance Court can go into your home or office when you're away.
Said James Otis to the king's judges: "One of the most essential branches of English liberty is the freedom of one's house. This writ if it should be declared legal, would totally annihilate this privilege." In the colonies, however, the Writs of Assistance remained legal. But a young lawyer, John Adams, listening to James Otis in that courtroom, wrote in his diary that evening: "Then and there the child, Independence, was born." Also currently nurturing the spirit of our heritage of independence and privacy is Steven Lilienthal, director of the Center for Privacy and Technology Policy at the Free Congress Foundation. He regularly sends me valuable news of present and prospective violations of privacy by government and other entities.
Writing in support of "constant review" of Patriot Act powers, Mr. Lilienthal emphasizes: "Many conservatives understand full well how future policymakers can take laws intended for an important reason -- combating terrorism -- and try applying those powers to other areas. Not only should the existing sunsets (clauses in the Patriot Act) be retained, they should be added to such far-reaching powers as the Section 213 delayed notification searches ('sneak and peek') that short-circuit the Fourth Amendment because (those powers) extend well beyond fighting terrorism." The Justice Department recently conceded that 88 percent of Section 213 search warrants have been executed in non-terrorism cases.
These James Otises of our time are in sharp contrast to such critics of the administration as bumptious show-boaters Al Franken, Michael Moore and the exclamatory, one-dimensional TV commercials of MoveOn.org. Meanwhile, the most visible leaders of the opposition Democratic Party -- Harry Reid, Nancy Pelosi and Howard Dean -- do not seriously and persistently address the erosion of our civil liberties with the penetrating insistence of conservative libertarians.
Calling for a strengthening of constitutional checks and balances, Mr. Bartlett, criticizing the Patriot Act, says: "[The government] could investigate us in secret based upon unproven complaints against us. That puts all of us as individuals at risk and at the mercy of any disgruntled neighbor or coworker who alleges we are involved in terrorist activity. It could be me today, or a neighbor or member of a labor union or church group tomorrow. No one can say where it would end." The president is a compassionate conservative, but not nearly enough of a constitutional conservative in the spirit of James Otis, whose actions led to the constitution. President Bush often speaks of the Constitution, but he should read why it was not ratified until the Bill of Rights was added.