Who ya mad at? On May 12, 1:52 pm, MJ <[email protected]> wrote: > The USA PATRIOT Act: Dispelling the Mythsby Bruce Fein, May 142, 2011 > On Behalf of Campaign for Liberty > Re: The USA PATRIOT Act: Dispelling the Myths > Before the House Judiciary Committee > May 11, 2011 > Bruce Fein & Associates, Inc. > 1025 Connecticut Avenue, N.W., Suite 1000 > Washington, D.C. 20036 > Phone: 703-963-4968 > [email protected] > Mr. Chairman and Members of the Subcommittee: > I am grateful for the opportunity to speak on behalf of the Campaign for > Liberty about the USA Patriot Act. Provoked largely by the gruesome > abominations of 9/11, the legislation was born of fear and uncertainty from > abroad. Fear, however, is the fount of tyranny. James Madison, father of the > Constitution, warned centuries ago in opposing the tyrannical Alien and > Sedition Acts of 1798: “Perhaps it is a universal truth that the loss of > liberty at home is to be charged to provisions against danger real or > pretended from abroad.” At the constitutional convention of 1787, Madison > similarly recognized the inclination of government to wave a banner of > foreign danger to excuse the destruction of domestic liberties: “The means of > defence agst. foreign danger, have been always the instruments of tyranny at > home. Among the Romans it was a standing maxim to excite a war, whenever a > revolt was apprehended. Throughout all Europe, the armies kept up under the > pretext of defending, have enslaved the people.” > The 342-page USA Patriot Act passed without inquiry into whether arming the > government with muscular investigatory tools justified the corresponding > intrusions on the right to be left alone the right most valued by civilized > people. The Patriot Act was portrayed as a necessary defense against foreign > agents and international terrorists. Citizen liberties were relegated to > extras in a Cecil B. De Mille cinematic extravaganza > Despite the good intentions of its architects, the Patriot Act betrays > bedrock constitutional principles. The individual is the center of the > Constitution’s universe. Aggrandizing government is the center of the Patriot > Act. The Constitution salutes freedom and citizen sovereignty over absolute > safety and citizen vassalage. The Patriot Act turns that hierarchy on its > head. Where experience and facts are inconclusive as regards the need for > government authority, the Constitution’s default position is liberty. Under > the Patriot Act, if a threat passes a microscopic threshold of danger, a Big > Brother government is exalted, a descendant of the 1% doctrine. The > authorization of “lone wolf” surveillance under the Foreign Intelligence > Surveillance Act (FISA) is exemplary. It has never been employed, yet it is > defended as a cornerstone of the nation’s defense against a second edition of > 9/11. > The Alien Act of 1798 was similar. It answered political or popular fears of > French immigrants. The President was empowered to deport unilaterally any > immigrant thought “dangerous to the peace and safety of the United States.” > During its two-year life, the President never once invoked the Act’s > deportation authority. Congress sensibly declined to renew it. > The makers of the Constitution venerated man’s spiritual nature, his moods, > and his intellect, to borrow from Justice Louis D. Brandeis. They sought to > protect Americans in their beliefs, their attitudes, their seclusions, and > their challenges to conventional wisdom. They crowned citizens with the right > to be left free from government encroachments, the hallmark of every > civilized society. To protect that right, Justice Brandeis sermonized, > “[E]very unjustifiable intrusion by the Government upon the privacy of the > individual, whatever the means employed, must be deemed a violation of the > Fourth Amendment.” The Patriot Act, nevertheless, shrivels the right to be > left alone from Government snooping and surveillance. It sneers at Benjamin > Franklin’s admonition: “Those who would give up essential Liberty, to > purchase a little temporary Safety, deserve neither Liberty nor Safety.” > Patriot Act champions boast that only a handful of judicial rulings have cast > a cloud over its provisions, for instance, gag orders on National Security > Letter recipients. But even the U.S. Supreme Court stumbles. InOlmstead v. > United States(1928), the Court held conversations were outside the ambit of > the Fourth Amendment because its text protected only “persons, houses, > papers, and effects.” InKatz v. United States(1967), thirty-nine years later, > the Court overruledOlmsteadand held the Amendment protected “reasonable > expectations of privacy.” As Saint Paul preached, “the letter killeth, but > the spirit giveth life.” 2 Corinthians 3: 6. The Supreme Court sustained the > constitutionality of race-based concentration camps for Japanese Americans > during World War II. Congress repudiated the Court’s odious decisions in the > Civil Liberties Act of 1988. > No federal court voided the Sedition Act of 1798, despite its flagrant > trespass on free speech. Over 150 years later inNew York Times v. > Sullivan(1964), the Supreme Court denounced the Act as unconstitutional. Many > Patriot Act provisions hinge on the decision of the High Court inU.S. v. > Miller(1976), that bank records or other information “voluntarily” shared > with third parties are outside a suspect’s zone of privacy protected by the > Fourth Amendment. TheMillerprecedent seems increasingly anachronistic in the > Age of the Internet in which a virtual diary of individual activities is in > the hands of third party Internet Service Providers. > Moreover, extra-constitutional reasons explain the dearth of court > challenges. The lion’s share of information sought under the Patriot Act is > aimed at third parties, not the target of surveillance or investigation. The > former have little or no incentive to incur the legal costs and public > opprobrium inherent in fighting the government. In addition, many recipients > of Patriot Act demands, like telecommunications companies or banks, are > motivated to cultivate government goodwill to preserve contracts or friendly > regulatory relations. The government has also sought to stigmatize any > opponent of the USA Patriot Act as semi-traitorous or un-American through its > title or otherwise. Then Attorney General John Ashcroft decried its critics > as “aiding and abetting terrorists.” But in the true Republic created by our > Founding Fathers, the people censure the government; the government does not > censure the people. Finally, the vast majority of victims of illegal or > unconstitutional surveillance under FISA are never informed of the spying. > They do not know the government has compiled a dossier against them. > In light of the hostility toward Patriot Act dissenters generated by the > Government and general concealment of violations, the diminutive number of > federal court cases is readily understandable. Why bring a lawsuit and risk > losing your neighbor, your friends, your job, and your public standing? It > might equally be said in defense of Jim Crow that “separate but equal” must > have been benign because so few blacks initiated lawsuits seeking its > reversal (at the risk of their homes, families, ostracisms, and lives). > At least one Member of Congress has insinuated that a constitutional > violation is harmless as long as the Government conceals the violation from > the victim, for example, an unconstitutionally seized and retained email or > phone call. That assertion seems first cousin to the nonsense that government > assassinations are innocuous if the victims are never acknowledged and their > bodies are never found. > Every Founding Father every Member of the Constitutional Convention of 1787 > would have been appalled at the Patriot Act. They were electrified by patriot > James Otis’ denunciation in 1761 of villainous Writs of Assistance general > search warrants which empowered petty officers to invade privacy and liberty > on bare suspicion without oath. Otis elaborated: “It appears to me the worst > instrument of arbitrary power, the most destructive of English liberty and > the fundamental principles of law that ever was found in an English law > book…Every one with this writ may be a tyrant; if this commission be legal, a > tyrant in a legal manner, also, may control, imprison, and murder any one > within the realm.” Patriot John Adams was awed, and remarked, “[T]hen and > there was the first scene of the first act of opposition to the arbitrary > claims of Great Britain. Then and there the child Independence was born.” > The spirit of the Fourth Amendment was similarly captured in William Pitt’s > forceful address to the British Parliament which reverberated throughout the > American colonies: “The poorest man in his cottage may bid defiance to all > the force of the crown. It may be frail its roof may shake the wind may blow > through it the storm may enter but the King of England cannot enter. All his > force dares not cross the threshold of the ruined tenement.” > The Patriot Act was misnamed. Thomas Paine lectured: "It is the duty of the > patriot to protect his country from its government." Accordingly, the true > patriots of the Constitution and the Republic are the “band of brothers” who > stood or are standing in opposition. They understand that the secret of > happiness is freedom. And the secret of freedom is the courage to accept risk > as inherent to an enlightened and civilized existence. Proponents of the > Patriot Act acted from weakness, not strength. I do not, however, question > their motives. They are all honorable men and women. But as Justice Brandeis > presciently observed: “Experience should teach us to be most on our guard to > protect liberty when the Government’s purposes are beneficent…The greatest > dangers to liberty lurk in insidious encroachment by men of zeal, well > meaning but without understanding.” > President John F. Kennedy taught, “Two thousand years ago, the proudest boast > was “civis Romanus sum.” Today, among the disciples of liberty, the proudest > boast should be, “I am an American.” On Gettysburg battlefield, seven score > and eight years ago, President Lincoln noted that our forefathers “brought > forth upon this continent a new nation, conceived in Liberty….” Repealing the > Patriot Act would honor what they so nobly begot. > Persons are born with unalienable rights to liberty. Liberty for its own sake > is the definition of America. Lectures that only citizens with something to > hide would balk at invasions of liberty are counter-constitutional and > un-American. The whole purpose of the Fourth Amendment is to saddle > government with a heavy burden of demonstrating by indisputable evidence a > compelling need to disturb the domain of any citizen before crossing his > threshold. Non-particularized roving wiretaps justified to prevent > surveillance targets from outfoxing the government miss the point. Making the > convenience of law enforcement or intelligence collection subservient to > liberty is the Amendment’s whole purpose. > The Government has been endowed with Patriot Act authorities for a decade > ample time to prove their indispensability to national security. Every > provision should be repealed forthwith absent proof by the executive that but > for the authority conferred an act of international terrorism would have > succeeded. If the evidence is vague or inconclusive, the Constitution’s > default position favoring liberty dictates repeal. > Authorizing government to collect intelligence on citizens for non-law > enforcement purposes offends the spirit if not the letter of the Fourth > Amendment. Spying for domestic security predictably mushroomed during World > War I and its aftermath fueled by the “Red Scare.” President Calvin Coolidge > appointed Harlan Fiske Stone as Attorney General in 1924. Stone was later > appointed Chief Justice of the United States. His signature achievement was > to terminate investigations or intelligence collection by the Bureau of > Investigation, except for law enforcement. Stone observed, "The organization > was lawless, maintaining many activities which were without any authority in > federal statutes and engaging in many practices which were brutal and > tyrannical in the extreme." He asked for the resignation of the Bureau > Director William J. Burns, former head of the Burns Detective Agency, and > directed that the activities of the Bureau "be limited strictly to > investigations of violations of law, under my direction or under the > direction of an Assistant Attorney General regularly conducting the work of > the Department of Justice." > Citizen loyalty and love for the United States is the mainstay of national > security. It is fostered by the Government’s scrupulous adherence to > constitutional limitations and restraints, not by coercion or suspicion that > every citizen could be a Benedict Arnold. As World War II raged, Justice > Robert Jackson observed: “Government of limited power need not be anemic > government. Assurance that rights are secure tends to diminish fear and > jealousy of strong government, and by making us feel safe to live under it > makes for its better support. Without promise of a limiting Bill of Rights it > is doubtful if our Constitution could have mustered enough strength to enable > its ratification. To enforce those rights today is not to choose weak > government over strong government. It is only to adhere as a means of > strength to individual freedom of mind in preference to officially > disciplined uniformity for which history indicates a disappointing and > disastrous end.” > Patriot Act defenders argue that the absence of “bodies on the sidewalk” > proves its respect for the Constitution and civil liberties. The argument > misconceives the fundamental premises of America. Every citizen is born with > the unalienable right to be left alone. Government is instituted to secure > that right, not to cripple it. Government in the United States, as opposed to > the People’s Republic of China, has no business collecting or retaining > information about citizens without “probable cause” to believe that a crime > has been or will be committed by a target who is identified with > “particularity; or, that a particularized search will unearth evidence of > crime. Each and every Patriot Act investigation involving citizens triggered > by less than probable cause or involving non-particularized targets or > searches is an abuse of government power. At present, the number of victims > probably exceeds one million, including recipients of National Security > Letters or targets of section 215 surveillances. > Section 206 of the Patriot Act authorizing roving wiretaps to collect foreign > intelligence; section 215 authorizing orders to seize any “tangible thing” > like books or computer hard drives to protect against international terrorism > or clandestine intelligence activities; section 505 authorizing National > Security Letters to seize customer records of financial institutions, credit > bureaus, and telecommunications providers by the government’s assertion of > relevance to preventing international terrorism or clandestine intelligence > activities; and, section 6001 of the Intelligence Reform and Terrorism > Prevention Act of 2004 authorizing surveillance against hypothetical “lone > wolf” international terrorists are all abusive of citizen liberty because > they encroach on the right to be left alone without probable cause to believe > the target is implicated in crime. > Since 9/11, the nation has witnessed approximately 170,000 murders. But that > ghastliness has not provoked the suspension of habeas corpus or civil > liberties in a quest for absolute safety. The Supreme Court lectured inUnited > States v. United States District Court,407 U.S. 297, 314 (1972): “The price > of lawful public dissent must not be a dread of subjection to an unchecked > surveillance power. Nor must the fear of unauthorized official eavesdropping > deter vigorous citizen dissent and discussion of Government action in private > conversation. For private dissent, no less than open public discourse, is > essential to our free society.” > The Patriot Act, in isolation, is no mortal blow to the Constitution. But > James Madison instructed: “It is proper to take alarm at the first experiment > upon our liberties. We hold this prudent jealousy to be the first duty of > citizens and one of the noblest characteristics of the late Revolution. The > freemen of America did not wait till usurped power had strengthened itself by > exercise and entangled the question in precedents. They saw all the > consequences in the principle, and they avoided the consequences by denying > the principle. We revere this lesson too much … to forget it.” > Many argue that the Constitution is an unaffordable luxury in confronting the > danger of Al Qaeda. The Supreme Court’s answer inEx Parte Milligan(1866) is > unanswerable: “The Constitution of the United States is a law for rulers and > people, equally in war and in peace, and covers with the shield of its > protection all classes of men, at all times, and under all circumstances. No > doctrine, involving more pernicious consequences, was ever invented by the > wit of man than that any of its provisions can be suspended during any of the > great exigencies of government. Such a doctrine leads directly to anarchy or > despotism, but the theory of necessity on which it is based is false; for the > government, within the Constitution, has all the powers granted to it, which > are necessary to preserve its existence….”* > * Violations of the Patriot Act compound the abuse inherent in investigations > without probable cause to suspect crime. Estimating their frequency is > problematic. Implementation of the Act is shrouded in secrecy; and, the > involved parties have little incentive to disclose compounded abuses. The > absence of public documentation of a single sanction against a government > official despite thousands of violations publicly reported by the Inspector > General of the Department of Justice is worrisome. > The climate of antagonism towards liberty fostered by the Patriot Act has > facilitated abusive application, as chronicled below.A. Brandon > Mayfield.Brandon Mayfield is an attorney, a decorated veteran of the United > States Army, a Muslim, and a United States citizen. The government > aggressively investigated him under the Patriot Act for alleged complicity in > the March 11, 2004 bombings of several commuter trains in Madrid, Spain, > despite definitive exculpatory evidence supplied by the Spanish National > Police. He was detained for two weeks. He was subject to electronic > surveillance with no showing of probable cause to believe he was complicit in > crime. His home was repeatedly invaded and scoured. He was consistently > followed, and his “shared and intimate” rooms were “bugged.” Personal > information obtained as a result of the investigation was shared among > several intelligence agencies and stored in government databases.B. Sami > Al-Hussayen.Sami Al-Hussayen was known to his Moscow, Idaho community as a > family-oriented father of three who, shortly after the Sept. 11 attacks, > organized a blood drive and a candlelight vigil that condemned the attacks as > an affront to Islam. The government investigated and detained him for > providing “expert advice or assistance” to international terrorists outlawed > by a Patriot Act amendment to 18 U.S.C. 2339. His alleged crime was > volunteering to use his computer skills to run Websites for a Muslim charity. > While the charity generally promoted peaceful religious teachings, > prosecutors alleged that buried deep within the Web sites were a handful of > violent messages written by others encouraging attacks on the United States > and donations to terrorist organizations. Al-Hussayen was eventually > acquitted of all terrorism-related charges.C. Tariq Ramadan.Tariq Ramadan is > an Oxford University professor and a leading Muslim scholar who advocates the > peaceful integration of Muslim values and western culture. His lectures > include a discussion on “Why Islam Needs a Feminist Movement” and “Muslim > Democrats in the West and Democratization in the Muslim World: Prospects for > Engagement.” In August 2005, at the invitation of Prime Minister Tony Blair, > Professor Ramadan accepted an invitation to join a U.K. government taskforce > to examine the roots of extremism in Britain. > Professor Ramadan has been a consistent critic of terrorism and those who use > it. In October 2001, Professor Ramadan publicly deplored the September 11 > attacks, saying to fellow Muslims, “Now more than ever we need to criticize > some of our brothers.... You are unjustified if you use the Koran to justify > murder.” Professor Ramadan publicly condemned the kidnapping of two French > journalists in Iraq in August 2004; the attacks on Jewish synagogues in > Istanbul in November 2003; and the terrorist bombing in London in July 2005. > In January 2004, Professor Ramadan was offered a tenured position as the > Henry R. Luce Professor of Religion, Conflict and Peacebuilding at the > University of Notre Dame’s Joan B. Kroc Institute for International Peace > Studies. Professor Ramadan was granted a specialized nonimmigrant visa on May > 5, 2004, but on July 28, just nine days before Professor Ramadan and his > family were to move to Indiana, he was informed that his visa had been > revoked. Professor Ramadan was not directly provided an explanation for the > revocation and neither Professor Ramadan nor the University of Notre Dame has > ever received a written explanation. At a press conference on August 25, > 2004, however, Russ Knocke, a spokesman for the Immigration and Customs > Enforcement division of the Department of Homeland Security, cited the > ideological exclusion provision of the Patriot Act as the basis for the > revocation.D. Wiretapping of Children.After FOIA requests and a review of FBI > responses, the Electronic Frontier Foundation discovered that, in 2005, FBI > Agents devoted five consecutive days to monitoring the telephone > conversations of two “young children” under a roving wiretap mandate.Bruce > Fein is a constitutional scholar and served as the associate deputy attorney > general under President Ronald Reagan from 1981 to 1982 and as general > counsel to the Federal Communications Commission. He is cofounder of the > American Freedom Agenda and writes weekly columns for The Washington Times > and Politico.com. His forthcoming book American Empire, Before the Fall will > be published by Campaign for Liberty.http://www.fff.org/comment/com1105h.asp
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