True Patriots Should Worry More about Freedom at Home

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Tue, 10 May 2005 09:58:20 -0700 (PDT)

True Patriots Should Worry More about Freedom at Home

 

 

True Patriots Should Worry More about Freedom at Home

http://www.mensnewsdaily.com/archive/c-e/eland/2005/eland051005.htm

May 10, 2005

by Ivan Eland

 

President George W. Bush claims that he is spreading freedom

throughout the world. However, for him " freedom " appears to be more a

slogan, devoid of content and used to harness U.S. nationalism for his

own purposes. Freedom meant much more to the Founders of the American

republic. They would be appalled at the president's crusade to impose

democracy abroad and its resulting, but unnecessary, erosion of

liberties at home. Bush's attempts to renew expiring USA PATRIOT Act

provisions, which were supposed to be a temporary enhancement of

government police powers in the wake of 9/11, show his shallow

commitment to freedom where it is needed most—here at home.

 

 

 

President Bush's State Department is now suppressing statistics that

support the conclusion that his reckless invasion of Muslim Iraq has

dramatically increased the number of significant terrorist attacks in

the world. Any future retaliatory terrorist attacks in the United

States could make renewal of the PATRIOT Act, or an even more severe

crackdown on civil liberties, a slam dunk.

 

During passage of the Act, the Executive Branch's law enforcement

bureaucracies used the 9/11 attacks to broadly enhance their powers of

search and surveillance for investigations unrelated to terrorism.

Also, the Act eroded the checks and balances enshrined in the

Constitution by limiting traditional judicial review of Executive

Branch search warrants.

 

 

 

In the wake of the post-9/11 hysteria that pressured Congress to show

progress in " doing something " to prevent a future attack, the

legislature got cold feet and required especially draconian provisions

of the Act to sunset at the end of 2005. Yet the " freedom loving " Bush

administration is busily lobbying Congress to make those provisions

permanent.

 

 

 

The most pernicious PATRIOT Act provision up for renewal is section

215. Originally, the Foreign Intelligence Surveillance Act (FISA) of

1978 set up a secret court to approve Executive Branch search warrants

in espionage and terrorism cases. The clandestine court, unlike other

courts, never notifies people that the government was spying on them,

hears only the government's arguments, and publishes no information

about its activities or the warrants approved or denied. Apparently,

the FISA court has rejected only a few government requests for such

warrants. The reasoning behind creation of the clandestine court was

that a lower standard of evidence should apply in intelligence cases.

(No matter that secret courts in a free republic are questionable at

best and that the Constitution's Fourth Amendment requires that

government search warrants, without exception, be issued only on the

high legal standard of probable cause that a crime has been committed.)

 

 

 

Before the PATRIOT Act, the FBI had to provide " specific and

articulable facts giving reason to believe that the person to whom the

records pertained " was a spy or terrorist and convince the FISA court

to issue the clandestine warrant. Unless allowed to sunset, the

PATRIOT Act allows the FBI to obtain a secret search warrant without

demonstrating such facts and instead merely requires the agency to

certify that the records are sought for a terrorism or espionage

investigation. Upon FBI certification, the court must then issue the

order, even if no facts are provided. In short, this provision of the

PATRIOT Act eliminates the check of judicial review on the FBI.

 

 

 

Thus, the FBI can investigate anybody without " probable cause " —that

is, citizens not suspected of crimes—and without having to show that

the subject's records are relevant to an investigation. In other

words, the lower legal standards for intelligence collection of the

secret court can now be applied to criminal investigations other than

those for terrorism or espionage, further undermining the

Constitution's guarantee of a " probable cause " standard for search

warrants.

 

The Executive Branch is using its expanded investigative authority

zealously. According to the Electronic Frontier Foundation, government

records show that the FISA court is secretly authorizing more

surveillance than all other federal courts put together.

 

 

 

Section 215 is only one of many severe restrictions on civil liberties

contained in the PATRIOT Act. For example, other provisions of the

law—such as roving wiretaps and national, instead of local,

jurisdiction for warrants for electronic evidence—appear to erode

Fourth Amendment requirements that warrants specifically describe

persons, places, and things to be searched. Not only should the sunset

provisions of the Act be put to rest, Congress should repeal the

entire law.

 

 

 

The purported tradeoff between civil liberties and national security

is a false one. No need for dubious usurpations of freedom like the

PATIOT Act would exist if the United States would avoid unnecessarily

creating and inflaming anti-American groups overseas with its overly

interventionist foreign policy. A more restrained policy abroad would

better preserve both liberty and security at home.

 

Ivan Eland

Ivan Eland is Senior Fellow and Director of the Center on Peace &

Liberty at The Independent Institute in Oakland, California, and

author of the books The Empire Has No Clothes, and Putting " Defense "

Back into U.S. Defense Policy.