Our Liberty Under Siege
Congress’ rush to meet the artificial deadline of the end of th[e] year for reorganizing the U.S. intelligence community has produced a 600-page, impossible-to-read statute that has clauses that significantly interfere with constitutionally guaranteed rights and were never the subject of any debate by members of Congress.
Sadly, there is precedent for Congress enacting bad legislation its members have not debated or even read.
The Patriot Act was cobbled together in secret after 9/11, and the final version contained language offensive to the Constitution that was not in the version distributed to members of the House and Senate. But Congress voted for it anyway.
For example, sections of the Patriot Act authorizing federal agents to write their own search warrants and making it a crime for their recipients to speak to anyone about them were never shown to Congress before it voted on them.
Members of Congress who objected to voting on legislation without first reading it amended the Patriot Act to include a “trigger” which provided that, upon the request of any member of Congress, the debate that never took place before voting would commence sometime afterward.
When Congress adopted the Intelligence Reform Act, it secretly squeezed in what I refer to as an addendum to the Patriot Act, also without debate, by making changes to elements of the Patriot Act itself.
Here’s what the Intelligence Reform Act provides: At present, if the government wants a defendant held without bail, it must demonstrate to a judge that the defendant is a flight risk. Under this Patriot Act addendum, if the government declares a defendant a terrorist and a flight risk, the defendant must prove that he is not a flight risk, rather than the government proving that he is. This turns the presumption of innocence on its head, since in criminal cases, the Constitution requires that defendants don’t have to prove anything in order to enjoy their freedom.
Even though Patriot Act-authorized self-written search warrants have been held unconstitutional by the only federal court asked to review them, in New York City, the new addenda broaden the category of permissible recipients of self-written search warrants. They now include automobile, plane, and boat dealers, telegraph companies, travel agencies, and jewelry stores. Lawyers’ offices and the U.S. Postal Service were added last year. Congress merely ignored the unconstitutionality of the original law dealing with the warrants.
Until this addendum to the Patriot Act, it was unlawful to leak federal grand jury testimony, regardless of how noble the leaker’s purpose. The secrecy of grand jury proceedings has been enshrined in Anglo-American law for over 600 years. Now, federal prosecutors — and no one else — may lawfully leak. This gives the government a tool permitting enormous harm since grand jury leaks can destroy a public figure’s reputation. Just ask Jason Giambi or Barry Bonds.
And that trigger provision in the original Patriot Act? It is repealed in the Intelligence Reform Act. The 9/11 Commission wanted more spies, not less freedom. What’s going on here?
The Patriot Act and its progeny are the most abominable, unconstitutional congressional assaults on personal freedom since the Alien and Sedition Acts of 1798 made it a crime to libel the government. With them, Congress and the president have attempted to legitimize the exchange of liberty for security. In effect, the government says, “Give us your freedoms, and we will protect you.” Such a satanic bargain misunderstands the nature of freedom and historically never has worked.
No rational person has ever voluntarily given up his own freedoms. Sacrificing freedom has never made us safer, just less free.
If we allow the president and Congress to treat our constitutional guarantees as if they were arbitrary gifts from the government, we will be doing the terrorists’ work for them. The government doesn’t give us our freedoms. We give the government its power. Our freedoms come from our humanity. Shouldn’t the government be defending our freedoms rather than curtailing them? Didn’t the president and members of Congress swear to uphold the Constitution rather than evade it?
After then-Attorney General A. Mitchell Palmer arrested without charge over 1,000 Eastern European intellectuals during World War I and after the United States military interned more than 110,000 Japanese-Americans during World War II, we looked back in horror at what was done.
Those useless, lawless, fruitless assaults on “their” freedoms so as to enhance “our” safety were condemned in 1988 when Congress passed, and President Ronald Reagan signed, the Civil Liberties Act of 1988, which compensated those still living who had been detained, and declared: “Never again.”
But we haven’t learned. Since 9/11, hundreds of Arab-Americans have disappeared from our streets.
The wartime arrests condemned in 1988 were the unilateral acts of misguided elements of the government. But in the Patriot acts, President Bush and this Congress have written these nefarious powers into federal law, without debate. Congress may not read our laws; but it should read our history.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News and the author of Constitutional Chaos: What Happens When the Government Breaks Its Own Laws (Nelson Current, 2004).