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Renewing the Patriot Act While America Sleeps PDF Print E-mail
Commentary/Politics - Guest Commentaries
Written by John Whitehead   
Friday, 28 January 2011 07:10

"Of course, there is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America." – Senator Russ Feingold (D-WI), voicing his concerns over Congress' passage of the USA Patriot Act (October 25, 2001)

Russ Feingold, a staunch defender of the rule of law and the only senator to vote against the ominous USA Patriot Act, recently lost his bid for re-election to the U.S. Senate to a Tea Party-backed Republican. From the start, Feingold warned that the massive 342-page piece of legislation would open the door to graver dangers than terrorism – namely, America becoming a police state. He was right.

The Patriot Act drove a stake through the heart of the Bill of Rights, violating at least six of the ten original amendments – the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments – and possibly the Thirteenth and Fourteenth Amendments, as well. The Patriot Act also redefined terrorism so broadly that many non-terrorist political activities such as protest marches, demonstrations and civil disobedience were considered potential terrorist acts, thereby rendering anyone desiring to engage in protected First Amendment expressive activities as suspects of the surveillance state.

The Patriot Act justified broader domestic surveillance, the logic being that if government agents knew more about each American, they could distinguish the terrorists from law-abiding citizens – no doubt an earnest impulse shared by small-town police and federal agents alike. According to Washington Post reporter Robert O'Harrow, Jr., this was a fantasy that had "been brewing in the law enforcement world for a long time." And 9/11 provided the government with the perfect excuse for conducting far-reaching surveillance and collecting mountains of information on even the most law-abiding citizen.

Suddenly, for the first time in American history, federal agents and police officers were authorized to conduct black bag "sneak-and-peak" searches of homes and offices and confiscate your personal property without first notifying you of their intent or their presence. The law also granted the FBI the right to come to your place of employment, demand your personal records and question your supervisors and fellow employees, all without notifying you; allowed the government access to your medical records, school records and practically every personal record about you; and allowed the government to secretly demand to see records of books or magazines you've checked out in any public library and Internet sites you've visited (at least 545 libraries received such demands in the first year following passage of the Patriot Act).

In the name of fighting terrorism, government officials were permitted to monitor religious and political institutions with no suspicion of criminal wrongdoing; prosecute librarians or keepers of any other records if they told anyone that the government had subpoenaed information related to a terror investigation; monitor conversations between attorneys and clients; search and seize Americans' papers and effects without showing probable cause; and jail Americans indefinitely without a trial, among other things. The federal government also made liberal use of its new powers, especially through the use (and abuse) of the nefarious national security letters, which allow the FBI to demand personal customer records from Internet Service Providers, financial institutions and credit companies at the mere say-so of the government agent in charge of a local FBI office and without prior court approval.

To their credit, some Americans began to protest the fact that the Patriot Act had given government agents carte blanche to investigate average Americans for what we used to call the right to free speech. Take the case of 60-year-old Barry Reingold. While at the gym one afternoon shortly after 9/11, this Oakland, California resident expressed a negative view of the U.S. government's handling of the war in Afghanistan. Other gym members, overhearing Reingold's remarks, notified the FBI. A few days later, FBI agents visited Reingold at home, wanting to know more about his locker room chat. Although the FBI insists that it does not investigate people for their political views, Reingold recalls the agents stating, "Someone's reported to us that you've been talking about what happened on 9/11 and terrorism and oil and Afghanistan."

Reingold was far from the only American to be subjected to a cross-examination over his personal views about the government. Even so, despite the fact that more than 400 local, county and state resolutions were passed in opposition to the Patriot Act, that spirit of resistance proved to be fleeting. Once again, Americans lapsed into a somnambulant trance and turned a blind eye as Congress, at the urging of the Bush Administration, renewed several of the Patriot Act's more controversial provisions, which were set to expire, or sunset, on December 31, 2005. The Patriot Reauthorization Act (PAREA) took government intrusion into the lives of average Americans to a whole new level. For example, one "administrative authority" provision within PAREA, which allows the FBI to write and approve its own search orders, represents a direct assault on the Fourth Amendment's prohibitions against unreasonable search and seizure. By approving what critics termed "carte blanche for a fishing expedition," Congress empowered the FBI to conduct warrantless searches on people without having to show any evidence that they may be involved in criminal activities. This provision also lifted one of the last restrictions on special warrants for the FBI – namely, that the information be related to international terrorism or foreign intelligence.

Despite campaign promises to the contrary, Barack Obama has proven to be little better than George Bush in terms of civil liberties. For example, on February 27, 2010, just a little over a year after taking office, Obama quietly signed into law three controversial provisions of the Patriot Act that were set to expire. The "roving wiretaps" provision allows the FBI to wiretap phones in multiple homes without having to provide the target's name or even phone number – merely the possibility that a suspect "might" use the phone is enough to justify the wiretap. The "lone wolf" provision allows intelligence gathering of people not suspected of being part of a foreign government or known terrorist organization. And Section 215 allows court-approved seizure of records and property in antiterrorism operations. Now, thanks to legislation recently introduced by Rep. Mike Rogers (R-MI), those Patriot Act provisions are again up for renewal, and it's highly likely that Obama and Congress will once again give them the green light.

The American government, never a staunch advocate of civil liberties, has been writing its own orders for some time now. Indeed, as the McCarthy era and the wiretapping of Martin Luther King Jr. illustrated, the government's amassing of power, especially in relation to its ability to spy on Americans, predates the passage of the Patriot Act in 2001.