January 17, 2006


Patriot [F]Acts

...For the last few weeks, we’ve been besieged by the ongoing warrantless wiretap issue that has been brought upon us by the Bush Administration’s “war on terror.” Spin-doctors and apologists from both sides of the aisle have leveled claims at each other, with the two most prominent arguments being that of illegalities and Fourth Amendment violations by the National Security Agency as directed by the White House, and the counter-argument that Bill Clinton got the ball rolling in the 1990s when his deputy attorney general, Jamie Gorelick, testified before a House of Representatives committee to suggest that warrantless searches were all right.
...A recent speech—one of his most energized and passionate—by former Vice President Al Gore has helped to perpetuate both arguments. Gore, whose own lawbreaking occurred when he solicited campaign contributions from the White House (in violation of §607 of the United States Code) called for an investigation of the Bush Administration for illegalities involving the warrantless wiretaps. In response, White House press secretary Scott McClellan called Gore a hypocrite, citing an authorized warrantless home search of spy Aldrich Ames and the Gorelick testimony.
...Having grown disgusted by the lies and half-truths from both conservatives and liberals alike, I decided to analyze as much data on the topics as possible.
...The biggest issue is the potentially illegal and unconstitutional warrantless wiretaps and electronic surveillance by the National Security Agency (NSA) as directed by the Bush Administration. The Fourth Amendment of the United States Constitution, which covers searches and seizures, states the following:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
...Pretty clear, is it not? One might think so, but don’t forget about that controversial bill known as the Patriot Act, which was instituted as law under the guise of helping to wage the war on terror. Critics of the act were called unpatriotic muckrakers who hated America, but they feared the widespread scope of the legislation and warned of certain clauses within the bill that might suspend constitutional rights and civil liberties which we previously had.
...Those critics were apparently correct in their assertions, though, as Section 213 of the legislation is entitled “Authority for delaying notice of the execution of a warrant.” It amends §3103(a) of the United States Code by adding a “delayed” warrant clause. For a die-hard supporter of warrantless searches or wiretaps, a “delayed” warrant can do wonderful things—especially considering the indefiniteness of the word “delayed.” Does it mean tomorrow? Does it mean 100 years from now? No one can be sure. The legislation says:
(b) Delay--With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if--
(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);
(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
(3) the warrant provides for the giving of such notice within a reasonable period of its execution, where period may thereafter be extended by the court for good cause shown.
...I’m not an attorney, but it seems as if attacking warrantless wiretaps on legal grounds will be more difficult than many people realize, since the Patriot Act has, in essence, legalized the violation of the Fourth Amendment. A warrant only has to be “delayed,” and that means that it could be issued sometime between now and the second coming of Christ.
...Who is to blame for this? Perhaps we should begin with the voters, since the Patriot Act was passed in 2001 by the House of Representatives (357-66) and the Senate (98-1), and signed into law by President Bush. It expires on February 3, and Bush wants it to become a permanent law.
...Let’s conclude by looking at the argument that has been advanced by the opposing side of the aisle. When Democrats question the legality of the warrantless electronic wiretaps, Republicans counter by pointing out testimony of Bill Clinton’s deputy attorney general, Jamie Gorelick. In 1994, she appeared before the House Permanent Select Committee on Intelligence and made the following statement:
“[T]he Department of Justice believes—and the case law supports—that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general.”
...Gorelick’s statement mentions warrantless physical searches, and that has become the standard talking-point among Democrats who oppose the Bush Administration’s warrantless electronic surveillances. The popular liberal Website Media Matters says that “physical searches are not the same thing as electronic surveillance.” Interestingly enough, Gorelick, in the same 1994 testimony, commented upon electronic surveillance and said:
“There are fewer cases dealing with physical, as distinguished from electronic, searches, but it is important to recognize that, for the Fourth Amendment analysis purposes, courts have made no distinction between electronic surveillances and physical searches.”
...Perhaps Media Matters knows more about the law than the courts do.
...Defenders of Clinton and Gorelick quickly note that no law was actually broken in the early-1990s, since physical searches weren’t included in the Foreign Intelligence Surveillance Authorization Act (FISA) until 1995 (placing it in §1822(c)). To be fair, such an argument is valid if we’re debating the legality of the warrantless physical searches.
...What concerns me is why any liberal organization would be defending warrantless physical searches simply because they were legal at the time. Isn’t the liberal movement supposed to be at the forefront of civil liberties? If they’re going to defend warrantless physical searches because they’re “legal,” then they’re no better than the conservatives who are currently defending the warrantless electronic wiretaps, which are apparently “legal” as defined by the Patriot Act.
...Who is right in the end? Ultimately each of us will come to our own conclusions, but for me I’m openly afraid of the use of warrantless anything. I’m also afraid of both liberals and conservatives and their respective political parties because we’ve seen that both have supported similar acts so long as their man is in the White House.


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