[Since 9-11] the Constitution has gone from an objective to be satisfied to an obstacle to national defense. . . . As these changes mount, at what point do we become other than a free and democratic nation? George Washington University law professor Jonathan Turley, Los Angeles Times, January 2, 2003
Civil liberties had their origin and must find their ultimate guarantee in the faith of the people. If that faith should be lost, five or nine [votes on the Supreme Court] could not long supply its want. Supreme Court Justice Robert Jackson, Douglas v. City of Jeannette (1943)
On June 6, in a closed-door session, the Senate Intelligence Committee approved a bill that, if Congress and the president agree (and he will), would dramatically expand the FBI’s powers under the Patriot Act to issue secret administrative subpoenas for an unprecedented range of personal records—without having to go to a judge.
The FBI will write its own subpoenas—just as British customs officials in the colonies did before the American Revolution—using general search warrants (writs of assistance) to go into homes and offices at will to look for contraband. These raids so inflamed 18th-century Americans that the “general search warrant” was one of the precipitating causes of our revolution.
The ACLU’s superb Washington staff bluntly explains the impact of the proposal: “This power would let agents seize personal records [it deems relevant to an intelligence investigation] from medical facilities, libraries, hotels, gun dealers, banks and any other businesses, without having to appear before a judge, and without any evidence that the people whose records are collected are involved in any criminal activity.” (Emphasis added.)
If the FBI is targeting you in its dragnet operations for some amorphous connection to terrorism (do you go to a mosque or organize against the war?) you will not know that your personal records have been seized—and put into any number of data banks.
Since these are secret administrative subpoenas, the third-party record holders who get them can’t tell you what they’ve given up to the FBI.
While this unleashing of the FBI was being debated at a May 24 open hearing of the Senate Intelligence Committee, several Democrats asked a highly pertinent question of a witness, Valerie Caproni, general counsel for the FBI: Is there any evidence that the delay—caused by having to get a judge’s approval for a subpoena—has ever harmed national security?
This was her answer: “Can we show you, because of delays, that a bomb went off? No, but it could happen tomorrow. It could.”
The administration’s shadow Constitution, made up as Bush goes along, trashes the rule of law on the basis of what might happen.
That’s how so many thousands of Japanese Americans were herded into internment camps during the Second World War as the army gave false prospective information to President Franklin Roosevelt and the Supreme Court. If anything like 9-11 happens here again, startled speculation, fueled by fear, could bring back those internment camps—with a multicultural range of inmates.
Listening to the FBI general counsel’s testimony before the Senate Intelligence Committee was Democratic senator Dianne Feinstein of California, who, until that moment, had been a stalwart defender of the Patriot Act, much to the administration’s delight. Hearing Valerie Caproni justify awarding the FBI such overwhelming authority that this administration had previously failed to get through, Senator Feinstein was somewhat shaken.
“This is a very broad power,” she said, “with no check on that power. It’s carte blanche for a fishing expedition.” She got it!
Because that vote was taken at a closed session of the Intelligence Committee, the yeas and nays have not been officially revealed. (And George W. Bush calls this “a transparent democracy”!) But I have learned that four Democrats voted against the bill as a whole, including the FBI’s expanded administrative subpoenas. They were Dianne Feinstein, Jon Corzine of New Jersey, Carl Levin of Michigan, and Ron Wyden of Oregon.
Republican Pat Roberts of Kansas, the aggressive chairman of the Senate Intelligence Committee, moved this bill fast to steal a march on the Senate Judiciary Committee, which also has oversight authority over the Justice Department and its FBI.
Among the Democrats on the Senate Judiciary Committee, ranking minority member Patrick Leahy of Vermont, Richard Durbin of Illinois, and Russell Feingold of Wisconsin—the latter being the only senator to vote against the Patriot Act in 2001—should mount strong opposition to the administrative subpoenas and other parts of the bill.
For example, empowering the FBI to get from postal inspectors, The New York Times reports, the “names, addresses and all other material appearing on the outside of letters sent to or from people connected to foreign intelligence investigations.”
(These mail covers also fish widely, and with little meaningful judicial supervision. It’s the FBI that guesses how you may be “connected.”)
Lisa Graves, the admirably knowledgeable senior counsel for legislative strategy at the ACLU, says the Intelligence Committee, fearing this bill would lose in the Judiciary Committee, quickly moved to get it out first as a fait accompli, so those who oppose it can be charged with being “soft on terror.”
In the May 18 Counterpunch, Lisa Graves adds: “I guess now we’ll have to see whether the people on the Judiciary Committee will have the political courage to stand up on this.”
I also wonder how long before New York senators Chuck Schumer and Hillary Rodham Clinton address themselves to these secret FBI vacuum cleaners of information.
And it would be useful if the so-called Democratic leadership (Harry Reid, Nancy Pelosi, and the strutting Howard Dean) would join Bob Barr of the American Conservative Union in saying loud and clear that this bill “would essentially render the Fourth Amendment protections against unreasonable searches and seizure completely meaningless.” To be continued.
This article from the Village Voice Archive was posted on June 21, 2005