EDITED PATRIOT ACT ESSAY

Daniel Contreras
English 101A
Professor Robert Vasquez
20 July 2011
The Illusion of Security
It would be difficult to understand the total magnitude of something if one was never affected by it. Army veteran and attorney Brandon Mayfield was an innocent victim of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism [PATRIOT] Act of 2001. At first glance, Mayfield seemed to be a normal American citizen: He joined the Army and received a college degree. He also lived in a modest home with his wife and children. There was nothing out of the ordinary or remotely suspicious about Mayfield, except for one thing: his religion. It is no secret that Mayfield is a Muslim convert who enjoyed eating delicacies at the local Middle Eastern restaurant; however, that would later become a factor in determining his guilt. Few allegations spawned after the Madrid bombings of March 11, 2004 that Mayfield was the responsible man. The major determinant was the fingerprints on a bag similar to that of Mayfield's. Several Federal Bureau of Investigation [FBI] agents stormed Mayfield's office on May 6, 2004 in search of any evidence, later arresting him with a "material witness" warrant (Epps par.5). After over two weeks of wrongful imprisonment, Mayfield was released due to an error made by a federal agent. Mayfield, held without any rights, responded to the PATRIOT Act by saying that it "waters down the standard of the Fourth Amendment." Furthermore, he adds that "it is not the guilty who suffer, but the innocent" (Eddlem par.5).
Unfortunately, there are other cases similar to Mayfield's that reveal the secret abuses of the PATRIOT Act. According to the Department of Justice, "prosecutors have asked for 155 such [said]...warrants since 2001" (The Patriot Act: Justice Department"). On June 15, 2007, United States District Judge John D. Bates ordered FBI agents to begin turning over thousands of pages of documents related to the agency's national security letters program, since an internal audit revealed that the USA PATRIOT Act's power was abused more than 1,000 times ("Controversial Invocations"). In a different case, 30 year old Jared Bjarnason was arrested after authorities discovered a suspicious email vaguely "threatening "'death and destruction'" to an El Paso mosque" (Zajac par.2). Believing that an "al-Qaida-trained killer" had been found, agents came to a hasty conclusion and arrested Bjarnason, when in fact he was a nonthreatening and unemployed adult (Zajac par.1). The PATRIOT Act allows this to occur under Section 212, which grants law enforcement the power to act swiftly without a search warrant on cases that may result in "immediate danger of physical injury" ("The Patriot Act: Justice Department"). Bill Maynard, Bjarnason's representative and supervisor of the public defenders office, stated that "authorities could have quickly achieved the same results using traditional search warrants" (Zajac). Maynard is not the only one facing differences with the PATRIOT Act. Libraries across the nation fell into government scrutiny under the act. According to a study conducted by the University of Illinois, authorities have "visited at least 545 libraries" (Finnegan 56). Among those libraries, 209 cooperated without hesitation. (Finnegan 56). Numerous libraries felt that the privacy of its visitors was in jeopardy; consequently, many began to alter their policies to better protect their clients' privacy. Unfortunately, various other amendments are subject to violation, not just the First and Fourth Amendment of the U.S. Constitution.
Indeed, one question remains: should the PATRIOT Act supersede the United States Constitution? Let’s delve deeper to get a better outlook on this issue.
People of the United States debate whether or not the PATRIOT Act is a necessary tool or a dangerous threat. For example, in the article titled "The Patriot Act and You," by investigative reporter Michael Webster, the author asserts the fact that the PATRIOT Act was a large piece of legislation too quickly passed without much discussion. Webster points out that several of the bill's provisions grant dangerous powers to the federal government: the power to view citizens' private information, imprison citizens by labeling them suspected terrorists, and leave the accused with absolutely no rights. He goes into detail about the financial aspect of the law; additionally, Webster explains that international money laundering, by the PATRIOT Act, is considered an act of financing terrorism. Since a person transferring a large amount of money overseas will be flagged as a suspicious terrorist, Webster stresses that the PATRIOT Act is critical of many cash transactions. The author adds that not only will the suspected terrorist be flagged, but he or she may also be denied from flying on board via a special list filled with the names of suspicious persons.
In contrast, the first U.S. Secretary of Homeland Security Tom Ridge addresses the importance and need for the PATRIOT Act originally in a speech given at the Allegheny County Emergency Operations Center on July 15, 2004. In his address titled "The Patriot Act Enhances National Security" he explains how terrorism was handled pre-September 11th. Ridge claims that terrorism was often handled ineffectively due to the constrictions within the bureaus which manage and work to correct such cases; in addition, he believes that the PATRIOT Act was a successful remedy to this problem resolving the restrains within the entities. Ridge argues that a new mindset is necessary and that the people must unite and support the nation equally. He believes that every U.S. citizen should support this act since it is helps the great cause: to prevent terrorism.
Unlike Ridge, writer Thomas R. Eddlem argues against the PATRIOT Act's provisions and legislation in his article titled "Anti-Fourth Amendment Patriot Act." While Ridges seems to prefer security over liberty, Eddlem argues that the liberties given to the people by the United States Constitution should be defended and preserved. Eddlem notes several innocent victims, such as Mayfield, that were targeted by the PATRIOT Act for suspicious activity resulting in scrutiny by the government. The author argues particularly on the behalf of the Fourth Amendment to the United States Constitution which has been shunned and perverted by court justices to allow unconstitutional search warrants on citizens. He later mentions that the PATRIOT Act violates various constitutional rights: the right to a speedy trial, the right to free speech, guarantee of probable clause, and of involuntary servitude. Eddlem notes that three of the PATRIOT Act's provisions were recently extended, allowing the government to further search and seize its citizens.
All authors presented strong arguments. For instance, Eddlem and Webster both briefly explain the sections and provisions from the PATRIOT Act that are vastly opposed by conservatives and libertarians alike; in addition, Eddlem uses effective anecdotal stories which lure the reader closer to the issue at hand. Similarly, Ridge tells of cases in which the PATRIOT Act has allowed police to successfully find a foreign terrorist. However, Ridge does not acknowledge that the Patriot Act supersedes the U.S. Constitution in many ways. His arguments are, in a way, very distant. He is talking in the voice of the government for the people instead of the voice of the people for the people. Although, it must have been crucial for him to leave out all the negative aspects out of his speech. While Webster's article is informative, Eddlem's article is the most versatile and compelling article of the three. Nonetheless, the PATRIOT Act still to this day creates complex debates.
The major catalyst of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism [USA PATRIOT] Act were the September 11, 2001 World Trade Center terrorist attacks. Former President of the United States George W. Bush, in the East Room at the White House just prior to signing the USA PATRIOT ACT on October 26,2001, declared, "'These terrorists must be pursued; they must be defeated; and they must be brought to justice. And that is the purpose of this legislation'" (qtd in Bush, "Remarks on Signing the USA PATRIOT ACT of 2001"). Approximately 2,740 American lives were lost on that day according to Joe Vajgrt author of the article titled "Column: Weighing in on the value of life" published by The UWIRE Student Media Affiliate Program (Vajgrt par.1). Since this was such a devastating attack to the United States, a call for action was necessary. Amid the aftermath, a shook up Congress joined together to swiftly pass the PATRIOT Act. The overwhelming support for the PATRIOT Act was no secret; however, very few representatives and senators received a copy of the bill, let alone read it, so many had to vote on something they did not have much knowledge on.
Wendy Kaminer feared that giving the “'FBI unchecked domestic spying powers...instead of focusing on preventing terrorism...will revert to doing what it does best-monitoring, harassing, and intimidating political dissidents and thousands of harmless immigrants'" (qtd in Etzioni 9). Shortly after the PATRIOT Act was signed into law, approximately 1,200 people were detained. Most were not given charges and information about them was considered classified. Even though organizations such as the American Civil Liberties Union protested, the majority of detainees were not allowed to speak to anybody including their own families ("History of the Patriot Act") This is a blatant violation of the 6th Amendment to the United States Constitution which specifically states,
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." ("The Sixth Amendment")
In addition, the PATRIOT Act weakens the Fourth Amendment to the U.S. Constitution. This amendment explicitly requires proof, or a “probable cause,” in order for the government to investigate someone. The fourth amendment reads, “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” (Eddlem).
Proponents argue that the Patriot Act does what it was intended to do: catch terrorists. They believe that the government is not misusing its power and, in a rare case that it is, the truly innocent people should have nothing to fear. In an interview, a supporter strongly asserts that the PATRIOT Act "protects the interest of Americans;" additionally, he affirms that "the PATRIOT Act has our best interests in mind because it's not the everyday American that is being traced...even if we were, what do we have to hide?" (Rodriguez). Furthermore, PATRIOT Act advocates assert that this legislation is necessary to catch terrorists in their tracks.
However, evidence reveals that the PATRIOT Act has very little to do with terrorism. Former New Jersey Superior Court Judge Andrew Napolitano exclaims in an interview, "They've gotten no terrorist convictions [or]...evidence...out of the Patriot Act...They've gotten a series of guilty pleas [and] they've gotten convictions on these other crimes...but not on terror" (Kidd par. 17). Journalist Jennifer Abel points out in an article published by The Guardian magazine titled "A patriotic duty: repeal the Patriot Act" that "a department of justice official testifying before Congress in 2009 admitted that Patriot Act provisions were overwhelmingly used to go after drug dealers rather than terrorists" (Abel par.4). In regards to the surveillance of everyday American citizens, Senator Rand Paul warns that citizens should not to give in to fear and to simply not allow this invasion of privacy to proceed much farther. Paul says, "What happens when someone takes over who believes your religion is to be combated? Who believes your political beliefs and your literature should be combated. What happens when that day comes?" (SenatorRandPaul).
In continuation, supporters say that there are instances, such as the arrest of the Portland Seven and Lackawanna Six, which were made possible by the PATRIOT ACT. They acknowledge that the "sharing of information has directly led to...numerous arrests, prosecutions, and convictions in terrorism cases" (Ridge 2). Since the passing of the bill, Advocates argue that there has not been a second September 11 terrorist attack on American soil. Proponents remind one of the restrictions that existed within federal agencies before the 9/11 by saying, "[The] ability to fight terrorism was inhibited by the inability to coordinate within our own government," thus allowing such an event like 9/11 to occur (Ridge 2).
However, if terrorists really wanted to kill a group of citizens, they would not pass through airline security at this point; the United States is too reactive; the U.S. takes preventative measures to things that have already occurred. There are plenty of areas where terrorists could bomb or gun down a bunch of people, if they really wanted to, and there is nothing anyone can do about it. The PATRIOT Act tricks people into feeling like they are safe. In regards to the Lackawanna Six case, many critics were skeptical whether or not the members posed as an impending threat. These men were regarded well by members of their community: “They are just like us. We watch them play soccer. We pray with them. We know their parents and their brothers and sisters and wives. If these six are suspects, then so is everyone else” (Temple-Raston). Before the PATRIOT Act, authorities would have had to treat this as two separate cases: a drug related investigation and a terrorist intelligence investigation; however, this act broke down the “’wall’ between these two types of investigations, allowing case-sensitive information to be shared between the two” (“The Patriot Act: Justice Department”). Interestingly, “defense attorneys claim the federal government coerced their clients into pleading guilty by implicitly threatening them with indefinite detention” (“The Patriot Act: Justice Department”). Certainly, the issue at hand is security and the Patriot Act is a part of the current solution; although, it should accompanied by stronger checks and balances to even things out.
Overall, the PATRIOT Act needs to be reevaluated and carefully reformed so that it does not continue abridging the rights granted to citizens by the U.S. Constitution.
Maximum security and personal freedom cannot coexist; therefore, in order to restore civil liberties, the people should take a step back and repeal the PATRIOT Act in its entirety. This legislation not only violates many civil liberties, but it also deforms this country’s constitutional republic. The Founding Fathers of this country would be appalled by this "unpatriotic act" since it opposes everything they fought for. By removing this act, both the scope of executive branch power would be reduced and civil liberties would be restored. "[Over] 200 cities, towns [and states]...[such] as Hawaii and Vermont" have successfully established anti-PATRIOT Act laws; some local governments simply ignore the entire legislation (Vlahos par.15). Representative Ron Paul summed it up well when he said, "[People] must not accept that government authorities should hector us...as we go about our private lives like we are living in Orwell’s 1984" (Paul par.4) In other words, a police state is imminent without our civil liberties intact. Others, like the Constitution Project, suggest that the PATRIOT Act should be at least reformed to an extent so that it secures citizens' protections while at the same time efficiently prosecuting the real criminals. They note that segments of the act, such as the "Lone Wolf" provision, should restore safeguards or be all-together eradicated ("Statement on Reforming").
If one chooses to ignore this issue, dire consequences are bound to arise. A decade has passed since the signing of the PATRIOT Act and the United States government has still not alleviated all of our constitutional rights; in fact, the government has become more secretive with its usage of the PATRIOT Act. Because of this act, the government has the legal right to know what one is doing, but one does not have the right to know what the government is doing. In an episode of Uncommon Sense TV that originally aired on April 25th, 2004, show hosts Andy Valen and Ed Lacy compared the 2001 USA PATRIOT Act to the Enabling Act of 1933. Both acts were legislative responses to national tragedies in a time of fear; hence, the establishment of those laws was much easier (Kennedy1op). Additionally, both acts have caused the trade of people's civil liberties for the illusion of security. Likewise, Naomi Wolf informs, in the Ricki Stern and Anne Sundberg film The End of America, that measures used in pre-Nazi Germany are currently being used today: External/internal threats (e.g. Reichstag Fire & 9/11), secret prisons (e.g. Camp Watten & Guantanamo), and paramilitaries (e.g. Sturmabteilung & Blackwater) just to name a few. The PATRIOT Act is not only a threat to our civil liberties, but it is also a threat to our society. Founding Father Benjamin Franklin summed it perfectly when he stated, “Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one" ("Benjamin Franklin").


Works Cited
"The 6th Amendment." SCORE History/Social Science. Web. 20 July 2011. .
Abel, Jennifer. "A Patriotic Duty: Repeal the Patriot Act." Guardian.co.uk. Guardian News and Media Limited, 23 May 2011. Web. 11 July 2011. .
"Benjamin Franklin." Wikiquote.org. Wikimedia. Web. 19 July 2011. .
Bush, George W. "Remarks on Signing the USA PATRIOT ACT of 2001." Presidency.ucsb.edu. The American Presidency Project, 26 Oct. 2001. Web. 6 July 2011. .
"Controversial Invocations of the USA PATRIOT Act." Wikipedia.org. Wikimedia Foundation, Inc. Web. 19 July 2011. .
Eddlem, Thomas R. "Anti-Fourth Amendment Patriot Act: Congress Is considering Extending Three Provisions of the USA Patriot Act, but They Would Do Better to Repeal the Whole Unconstitutional Law." The New American. Gale, 18 Apr. 2011. Web. 26 June 2011. .
The End of America. Dir. Ricki Stern, Anne Sundberg. Perf. Naomi Wolf. Indiepix , 2008. DVD.
Epps, Garrett. "Vengeance Is Brandon Mayfield's." Salon.com. Salon Media Group, Inc, 3 Oct. 2007. Web. 18 July 2011. .
Etzioni, Amitai. How Patriotic Is the Patriot Act ?: Freedom versus Security in the Age of Terrorism. New York [etc.: Routledge, 2005. Print.
Finnegan, Lisa. No Questions Asked: News Coverage since 9/11. Westport, CT: Praeger, 2007. Print.
"History of the Patriot Act." Graypantherssf.igc.org. Gray Panthers San Fransisco. Web. 29 June 2011. .
Kennedy1op. "The Patriot Act part 1." Youtube. 10 Nov 2008. Web. 26 June 2011. http://www.youtube.com/watch?v=Td1mOAF1S8Q.
Kidd, Devvy. "Tell Your Sheriff: No Enforcement Of So-called "PATRIOT" Act." NewsWithViews.com. News With Views, 22 Mar. 2006. Web. 11 July 2011. .
"The Patriot Act...Good or Bad?" Askville.amazon.com. Askville. Web. 16 July 2011. .
"The Patriot Act: Justice Department Claims Success." NPR.org. NPR, 20 July 2005. Web. 19 July 2011. .
Paul, Ron. "Stop the Police State, Repeal the PATRIOT Act (Rep. Ron Paul)." TheHill.com. Capitol Hill Publishing Corp, 4 Jan. 2011. Web. 17 July 2011.
Ridge, Tom. "The Patriot Act Enhances National Security." GaleGroup.com. Gale, 2005. Web. 26 June 2011. .
Rodriguez, Samuel. Personal interview. 14 June 2011.
SenatorRandPaul. "Sen. Rand Paul Speaks on PATRIOT ACT." Youtube. 23 May 2011. Web. 16 July 2011. http://www.youtube.com/watch?v=Gmjhk2-ynLo.
"Statement On Reforming The PATRIOT Act." ConstitutionProject.org. The Constitution Project, 22 Sept. 2009. Web. 13 July 2011. .
Stout, David. "Bush Urges Congress to Keep Patriot Act Intact." Nytimes.com. The New York Times, 9 June 2005. Web. 11 July 2011. ."
Temple-Raston, Dina. "How Great a Threat Were the Lackawanna Six?" NPR.org. National Public Radio, 10 Sept. 2007. Web. 20 July 2011. .
Vajgrt, Joe. "Column: Weighing in on the Value of Life." UWIRE | Campus Media Network. UWIRE Student Media Affiliate Program, 24 Feb. 2011. Web. 12 July 2011. .
Vlahos, Kelley B. "Critics: Patriot Act Warnings Come to Fruition." FoxNews.com. FOX News Network, LLC, 22 Nov. 2003. Web. 19 July 2011. .
Webster, Michael. "The Patriot Act and You!" ArticlesBase.com. Articles Base, 21 Apr. 2008. Web. 27 June 2011. .
Zajac, Andrew. "Patriot Act up for Renewal, but Law's Effectiveness Unclear." Chicago Tribune (Chicago, IL). 04 Apr 2005: n.p. SIRS Researcher. Web. 19 Jul 2011.


Source #1

Patriot Act up for Renewal, but Law's Effectiveness Unclear


By Andrew Zajac
Chicago Tribune (KRT)
Cartoon: Patriot Act Expansion

Cartoon: Patriot Act Expansion



WASHINGTON--The public face of Attorney General Alberto Gonzales' campaign to renew the Patriot Act does not belong to an al-Qaida-trained killer captured using the law.

Instead, it belongs to Jared Bjarnason, an unemployed 30-year-old serving 18 months in a low-security West Texas prison for sending an e-mail threatening "death and destruction" to an El Paso mosque.

Gonzales said last month that Bjarnason's arrest was an example of how "the Patriot Act was used to protect the lives and liberties of members of the El Paso Islamic Center," because it let investigators track down Bjarnason before he could carry out his threat.

But closer scrutiny suggests investigators did not see Bjarnason as much of a threat, the mosque almost didn't report his e-mail, and the government could have obtained the e-mail records almost as fast without the Patriot Act.

"It's absurd," said Bill Maynard, a supervisor in the public defender's office that represented Bjarnason. "The prosecution in no way demonstrates the effectiveness of the Patriot Act."

A portion of the Patriot Act--the significant increase in police powers enacted in the jittery days after the Sept. 11 attacks--is due to expire at the end of the year, and congressional hearings begin Tuesday with Gonzales and FBI Director Robert Mueller slated to testify before the Senate Judiciary Committee.

The renewal opens up a debate over the law's effectiveness as the White House mounts an energetic campaign to persuade Congress to re-enact it.

But Congress is aggressively reviewing the law's performance.

Critics question whether the cases the Bush administration is citing to prove the act's effectiveness show anything of the sort. In some cases, they say, police could have achieved much the same results without the law. In others, they add, the defendants are run-of-the-mill criminals, not the terrorists who were supposedly the act's chief targets.

"These were extraordinary powers, meant for extraordinary acts," said Lisa Graves, senior legislative counsel of the American Civil Liberties Union. "They didn't say we needed these vast additional powers to deal with all sorts of ordinary crime. They said we need them to deal with terrorism."

Justice Department spokesman Kevin Madden said the Bjarnason case shows "the Patriot Act as a common-sense law enforcement tool...outside the terrorist arena."

The 342-page law was cobbled together in 45 days, in response to the Sept. 11 attacks. The act gave law enforcement and intelligence officials more leeway to share information, monitor Internet traffic, tap phones and obtain personal and business records.

But critics say the fevered atmosphere surrounding the law's passage left too few checks on police and prosecutors.

Skeptics aren't limited to civil libertarians. On March 22, a half-dozen conservative groups, from the American Conservative Union to Gun Owners of America, joined the ACLU in forming Patriots to Restore Checks and Balances to lobby Congress to modify the Patriot Act. "We agree that much of the Patriot Act is necessary...to defeat terrorism," the coalition's members wrote President Bush. "But we remain very concerned that some of its provisions...infringe on the rights of law-abiding Americans."

Mirroring unease at both ends of the political spectrum, new legislation to correct the perceived excesses of the Patriot Act was crafted by Sens. Larry Craig, a conservative Republican from Idaho, and a Dick Durbin, liberal Democrat of Illinois. The bill is to be introduced Tuesday.

Meanwhile, five states and more than 375 local governments have passed anti-Patriot Act resolutions, according to the Bill of Rights Defense Committee, a nonprofit civil liberties group.

While just 16 sections of the Patriot Act--out of more than 100--are to expire, their looming sunset could open the door for several changes in the law.

Critics cite three parts of the law as especially objectionable. One, dubbed "sneak-and-peek," gives law enforcement far more power to search property without notifying the subject until after the search.

The Justice Department said prosecutors have asked for 155 such delayed notification search warrants since 2001.

Another section, sometimes called the "library records" provision, allows investigators to seize business and personal records--including medical data and lists of library withdrawals--without showing probable cause or even linking the subject to terrorism.

And a third section redefines domestic terrorism in a way that conservatives worry will include anti-abortion protesters.

Gonzales has told audiences that he welcomes debate on the Patriot Act, but he also has made it clear he thinks fears of Big Brother-type encroachments are overblown.

Beyond specific legal issues, the administration cites one argument it hopes will trump all others: It insists that the Patriot Act works. "It's one of the reasons we haven't had a terrorist attack in three years," Gonzales told CNN's Wolf Blitzer recently.

But Gonzales offers few specifics, focusing instead on the act's capacity to solve crimes by letting police quickly collect private e-mail information--a less controversial facet of the law.

It's a strategy aimed at avoiding a discussion of the touchier aspects of the Patriot Act, said Bob Barr, a former Republican congressman from Georgia who heads Patriots to Restore Checks and Balances. "It's intended to shift the focus to cases ordinary citizens can understand and tug at their heartstrings," Barr said.

But even in the cases cited by Gonzales, it's not clear how much help the Patriot Act provided. In addition to the Bjarnason case, the other case Gonzales has been emphasizing is the safe recovery of a baby cut from her murdered mother in December in Missouri.

The baby, Victoria Jo Stinnett, was found unharmed, according to Gonzales, because of a Patriot Act provision that allowed government officials to contact an Internet service provider and collect information on e-mail traffic between the victim and the accused murderer without getting a judge's approval. In this case, FBI spokesman Jeff Lanza estimated it would have taken "at least an hour or more" to get a search warrant from a judge. "We had the ability to get the records immediately and we did," he said.

The Patriot Act's opponents dismiss this.

"They may be able to move marginally faster, but I don't think that warrants tossing aside the Fourth Amendment," which prohibits improper searches and seizures, said Kevin Bankston, an attorney with the San Francisco-based Electronic Frontier Foundation, a group that addresses civil rights issues raised by new technologies.

In the Bjarnason case, court records show that on April 20, 2004, Bjarnason e-mailed the El Paso Islamic Center that it "will become the center of death and destruction" within three days unless the mosque arranged for the release of all hostages held in Iraq. Gonzales said that under pre-Patriot Act rules, authorities would need "a string of search warrants" that "could have taken 30 days, far beyond his threatened deadline."

Instead of getting warrants, investigators made two emergency requests--one to Microsoft Corp., for information about Bjarnason's e-mail account and another to an Internet service provider, Time Warner Inc., to locate the computer from which the threats were sent.

Maynard, of the public defender's office in El Paso, said authorities could have quickly achieved the same results using traditional search warrants.

Two days after sending the e-mail, Bjarnason confessed before investigators had a chance to ask any questions, according to court records. Bjarnason was not arrested until April 22--suggesting he wasn't seen as an immediate threat--and four days later he was released on $5,000 bond. Eventually he was sentenced to 18 months in prison.

Omar Hernandez, president of the 300-member mosque, said he wrestled with whether even to notify authorities after receiving the threatening e-mail from "freedomlover_2." "If it was just a joke, I would hate to affect their life over a dumb mistake," Hernandez said.

Ironically, the mosque was attacked six months later with two makeshift firebombs, which failed to detonate and caused no injuries or damage. On March 22, a man arrested in the incident pleaded guilty to attempting to damage religious property and other charges.

There is no evidence the Patriot Act was used to capture the culprit.





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Summary:

"The public face of Attorney General Alberto Gonzales' campaign to renew the Patriot Act does not belong to an al-Qaida-trained killer captured using the law. Instead, it belongs to Jared Bjarnason, an unemployed 30-year-old serving 18 months in a low-security West Texas prison for sending an e-mail threatening 'death and destruction' to an El Paso mosque. Gonzales said last month [March 2005] that Bjarnsason's arrest was an example of how 'the Patriot Act was used to protect the lives and liberties of members of the El Paso Islamic Center,' because it let investigators track down Bjarnason before he could carry out his threat. But closer scrutiny suggests investigators did not see Bjarnason as much of a threat, the mosque almost didn't report his e-mail, and the government could have obtained the e-mail records almost as fast without the Patriot Act." (Chicago Tribune) This article debates the effectiveness of the Patriot Act "as the White House mounts an energetic campaign to persuade Congress to re-enact it."
Citation:

You can copy and paste this information into your own documents.

Zajac, Andrew. "Patriot Act up for Renewal, but Law's Effectiveness Unclear." Chicago Tribune (Chicago, IL). 04 Apr 2005: n.p. SIRS Researcher. Web. 19 Jul 2011.

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Complete PATRIOT Act Essay

Daniel Contreras
English 101A
Professor Robert Vasquez
20 July 2011
It would be difficult to understand the total magnitude of something if one was never affected by it. Army veteran and attorney Brandon Mayfield was an innocent victim of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism [PATRIOT] Act of 2001. At first glance, Mayfield seemed to be a normal American citizen: He joined the Army, received a college degree, was married, had children, and lived in a modest home. There was nothing out of the ordinary or remotely suspicious about Mayfield, except for one thing: his religion. It is no secret that Mayfield is a Muslim convert who enjoyed eating delicacies at the local Middle Eastern restaurant; however, that would later become a factor in determining his guilt. Few allegations spawned after the Madrid bombings of March 11, 2004 that Mayfield was the responsible man. The major determinant were the fingerprints on a bag similar to that of Mayfield's. Several Federal Bureau of Investigation [FBI] agents stormed Mayfield's office on May 6, 2004 in search of any evidence, later arresting him with a "material witness" warrant (Epps par.5). After over two weeks of wrongful imprisonment, Mayfield was released due to an error made by a federal agent. Mayfield, held without any rights, responded to the PATRIOT Act by saying that it "waters down the standard of the Fourth Amendment." Furthermore, he adds that "it is not the guilty who suffer, but the innocent" (Eddlem par.5).
Unfortunately, there are other cases similar to Mayfield's that reveal the abuses of the PATRIOT Act.
One question remains: should the PATRIOT Act supersede the United States Constitution? Let’s delve deeper to get a better outlook on this issue.
However, people of the United States debate whether or not the PATRIOT Act is a necessary tool or a dangerous threat. For example, in the article titled "The Patriot Act and You," by investigative reporter Michael Webster, the author asserts the fact that the PATRIOT Act was a large piece of legislation too quickly passed without much discussion. Webster points out that several of the bill's provisions grant dangerous powers to the federal government: the power to view citizens' private information, imprison citizens by labeling them suspected terrorists, and leave the accused with absolutely no rights. He goes into detail about the financial aspect of the law; additionally, Webster explains that international money laundering, by the PATRIOT Act, is considered an act of financing terrorism. Since a person transferring a large amount of money overseas will be flagged as a suspicious terrorist, Webster stresses that the PATRIOT Act is critical of many cash transactions. The author adds that not only will the suspected terrorist be flagged, but he or she may also be denied from flying on board via a special list filled with the names of suspicious persons.
In contrast, the first U.S. Secretary of Homeland Security Tom Ridge addresses the importance and need for the PATRIOT Act originally in a speech given at the Allegheny County Emergency Operations Center on July 15, 2004. In his address titled "The Patriot Act Enhances National Security" he explains how terrorism was handled pre-September 11th. Ridge claims that terrorism was often handled ineffectively due to the constrictions within the bureaus which manage and work to correct such cases; in addition, he believes that the PATRIOT Act was a successful remedy to this problem resolving the restrains within the entities. Ridge argues that a new mindset is necessary and that the people must unite and support the nation equally. He believes that every U.S. citizen should support this act since it is helps the great cause: to prevent terrorism.
Unlike Ridge, writer Thomas R. Eddlem argues against the PATRIOT Act's provisions and legislation in his article titled "Anti-Fourth Amendment Patriot Act." While Ridges seems to prefer security over liberty, Eddlem argues that the liberties given to the people by the United States Constitution should be defended and preserved. Eddlem notes several innocent victims that were targeted by the PATRIOT Act for suspicious activity which resulted in scrutiny by the government.The author argues particularly on the behalf of the Fourth Amendment to the United States Constitution which has been shunned and perverted by court justices to allow unconstitutional search warrants on citizens. He later mentions that the PATRIOT Act violates various constitutional rights: the right to a speedy trial, the right to free speech, guarantee of probable clause, and of involuntary servitude. Eddlem finds that three parts set to expire were recently extended which allows the government to further search and seize its citizens.
All authors presented strong arguments. For instance, Eddlem and Webster both briefly explain the sections and provisions from the PATRIOT Act that are vastly opposed by citizens and libertarians alike; in addition, Eddlem uses effective anecdotal stories which lulls the reader closer to the issue at hand. Similarly, Ridge tells of cases in which the PATRIOT Act has allowed police to successfully find a foreign terrorist. However, Ridge does not acknowledge that the Patriot Act, in many ways, supersedes the U.S. Constitution. His arguments are in a way very distant. Distant in a way that he talking in the voice of the government for the people instead of the voice of the people for the people. Although, it must have been crucial for him to leave out all the negative aspects out of his speech. While Webster's article is informative, Eddlem's article is the most versatile and compelling article of the three. Nonetheless, the PATRIOT Act still to this day creates complex debates.
The major catalyst of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism [USA PATRIOT] Act were the September 11, 2001 World Trade Center terrorist attacks. Former President of the United States George W. Bush’s remarks, in the East Room at the White House just prior to signing the USA PATRIOT ACT on October 26,2001, declared, "'These terrorists must be pursued; they must be defeated; and they must be brought to justice. And that is the purpose of this legislation'" (Bush). Approximately 2,740 American lives were lost on that day according to Joe Vajgrt author of the article titled "Column: Weighing in on the value of life" published by The UWIRE Student Media Affiliate Program (Vajgrt par.1). Since this was such a devastating attack to the United States, a call for action was necessary. Amid the aftermath, a shook up Congress joined together to swiftly pass the PATRIOT Act. The overwhelming support for the PATRIOT Act was no secret, crushing any and all who showed dissent.
Wendy Kaminer feared that giving the “'FBI unchecked domestic spying powers...instead of focusing on preventing terrorism...will revert to doing what it does best-monitoring, harassing, and intimidating political dissidents and thousands of harmless immigrants'" (Etzioni 9). ======================CONTINUE CAUSE & EFFECT PARAGRAPH==========================
Proponents argue that the Patriot Act does what it was intended to do: catch terrorists. They say that the government is not misusing its power and, in a rare case that it is, the truly innocent people should have nothing to fear. In an interview, a supporter strongly believes that the PATRIOT Act "protects the interest of Americans;" additionally, he affirms that "the PATRIOT Act has our best interests in mind because it's not the everyday American that is being traced...even if we were, what do we have to hide?" (Rodriguez). Furthermore, PATRIOT Act advocates assert that this legislation is necessary to catch terrorists in their tracks.
However, evidence reveals that the PATRIOT Act has very little to do with terrorism. Former New Jersey Superior Court Judge Andrew Napolitano exclaims in an interview, "They've gotten no terrorist convictions [or]...evidence...out of the Patriot Act...They've gotten a series of guilty pleas [and] they've gotten convictions on these other crimes...but not on terror" (Kidd par. 17). Journalist Jennifer Abel points out in an article published by The Guardian magazine titled "A patriotic duty: repeal the Patriot Act" that "a department of justice official testifying before Congress in 2009 admitted that Patriot Act provisions were overwhelmingly used to go after drug dealers rather than terrorists" (Abel par.4). In regards to the surveillance of everyday American citizens, Senator Rand Paul warns that citizens should not to give in to fear and to simply not allow this invasion of privacy to proceed much farther. Paul says, "What happens when someone takes over who beliefs your religion is to be combated? Who believes your political beliefs and your literature should be combated. What happens when that day comes?" (SenatorRandPaul).
In continuation, supporters say that there are instances, such as the arrest of the Portland Seven and Lackawanna Six, that were made possible by the PATRIOT ACT. They acknowledge that the "sharing of information has directly led to...numerous arrests, prosecutions, and convictions in terrorism cases" (Ridge 2). Since the passing of the bill, Advocates argue that there has not been a second September 11 terrorist attack on American soil. Proponents remind one of the restrictions that existed within federal agencies before the 9/11 by saying, "[The] ability to fight terrorism was inhibited by the inability to coordinate within our own government," thus allowing such an event like 9/11 to occur (Ridge 2).
However, such cases would still be preventable without the intrusive provisions of the PATRIOT Act. Many suggest that the PATRIOT Act had potential, but it revealed the misuses it brought. Reformers suggest that the following are essential and beneficial portions of the bill: Efforts in stopping money laundering and improving communication between our law enforcement and intelligence activities are definitely necessary against fighting criminals. Certainly, the issue at hand is security and the Patriot Act is a part of the current solution; although, it should be stopped as soon as accomplished. The act must be reinforced with sealing of the borders, cutting treatments to opposing countries, and so on. The CIA for years has been tangled by regulations which restrains where it can get intelligence ("What's An Alternative").
Overall, the PATRIOT Act needs to be reevaluated and carefully reformed so that it does not continue abridging the rights granted to citizens by the U.S. Constitution.
Maximum security and personal freedom cannot coexist; therefore, in order to restore civil liberties, the people should take a step back and repeal the PATRIOT Act in its entirety. This legislation not only violates many civil liberties, but it also deforms our constitutional republic. The Founding Fathers of this country would be appalled by this "unpatriotic act" since it opposes everything they fought for. By removing this act, both the scope of executive branch power would be significantly reduced and our civil liberties would be restored. Representative Ron Paul sums it best when he says, "[people] must not accept that government authorities should hector us via television screens as we go about our private lives like we are living in Orwell’s 1984" (Paul par.4) In other words, a police state is imminent without civil liberties. Others, like the Constitution Project, suggest that the PATRIOT Act be at least reformed to an extent so that it secures citizens' protections while at the same time efficiently prosecuting the real criminals. They note that segments, such as the "Lone Wolf" provision, should restore safeguards or be eradicated ("Statement on Reforming").
If one chooses to ignore these issues, there will be dire consequences. A decade has passed since the passing of the PATRIOT Act and government has still not alleviated our constitutional rights; in fact, the government has gotten even more secretive with its uses of the PATRIOT Act. Because of this act, the government has the right to know what one is doing, but one does not have the right to know what the government is doing. In an episode of Uncommon Sense TV that aired on April 25th, 2004, Andy Valen and Ed Lacy compare the PATRIOT Act to the 1933 Enabling Act. Both acts were legislative responses to national tragedies in a time of fear; hence, the establishment of those laws was much easier (Kennedy1op). Likewise, Naomi Wolf informs, in the Ricki Stern and Anne Sundberg film The End of America, that measures used in pre-Nazi Germany are currently being used today: External/internal threats, secret prisons, and paramilitaries just to name a few. The PATRIOT Act is not only a threat to our civil liberties, but it is also a threat to our society. Benjamin Franklin put it best when he said, “Those who desire to give up freedom in order to gain security will not have, nor do they deserve, either one."


Works Cited

Abel, Jennifer. "A Patriotic Duty: Repeal the Patriot Act." Guardian.co.uk. Guardian News and Media Limited, 23 May 2011. Web. 11 July 2011. .

"Benjamin Franklin." Wikiquote.org. Wikimedia. Web. 19 July 2011. .

Bush, George W. "Remarks on Signing the USA PATRIOT ACT of 2001." Presidency.ucsb.edu. The American Presidency Project, 26 Oct. 2001. Web. 6 July 2011. .

"Controversial Invocations of the USA PATRIOT Act." Wikipedia.org. Wikimedia Foundation, Inc. Web. 19 July 2011. .

Eddlem, Thomas R. "Anti-Fourth Amendment Patriot Act: Congress Is considering Extending Three Provisions of the USA Patriot Act, but They Would Do Better to Repeal the Whole Unconstitutional Law." The New American. Gale, 18 Apr. 2011. Web. 26 June 2011. .

The End of America. Dir. Ricki Stern, Anne Sundberg. Perf. Naomi Wolf. Indiepix , 2008. DVD.

Epps, Garrett. "Vengeance Is Brandon Mayfield's." Salon.com. Salon Media Group, Inc, 3 Oct. 2007. Web. 18 July 2011. .

Etzioni, Amitai. How Patriotic Is the Patriot Act ?: Freedom versus Security in the Age of Terrorism. New York [etc.: Routledge, 2005. Print.

Finnegan, Lisa. No Questions Asked: News Coverage since 9/11. Westport, CT: Praeger, 2007. Print.

Kennedy1op. "The Patriot Act part 1." Youtube. 10 Nov 2008. Web. 26 June 2011. http://www.youtube.com/watch?v=Td1mOAF1S8Q.

Kidd, Devvy. "Tell Your Sheriff: No Enforcement Of So-called "PATRIOT" Act." NewsWithViews.com. News With Views, 22 Mar. 2006. Web. 11 July 2011. .

"The Patriot Act...Good or Bad?" Askville.amazon.com. Askville. Web. 16 July 2011. .

Paul, Ron. "Stop the Police State, Repeal the PATRIOT Act (Rep. Ron Paul)." TheHill.com. Capitol Hill Publishing Corp, 4 Jan. 2011. Web. 17 July 2011.

Ridge, Tom. "The Patriot Act Enhances National Security." GaleGroup.com. Gale, 2005. Web. 26 June 2011. .

Rodriguez, Samuel. Personal interview. 14 June 2011.

SenatorRandPaul. "Sen. Rand Paul Speaks on PATRIOT ACT." Youtube. 23 May 2011. Web. 16 July 2011. http://www.youtube.com/watch?v=Gmjhk2-ynLo.

"Statement On Reforming The PATRIOT Act." ConstitutionProject.org. The Constitution Project, 22 Sept. 2009. Web. 13 July 2011. .

Stout, David. "Bush Urges Congress to Keep Patriot Act Intact." Nytimes.com. The New York Times, 9 June 2005. Web. 11 July 2011. ."

Vajgrt, Joe. "Column: Weighing in on the Value of Life." UWIRE | Campus Media Network. UWIRE Student Media Affiliate Program, 24 Feb. 2011. Web. 12 July 2011. .

Vlahos, Kelley B. "Critics: Patriot Act Warnings Come to Fruition." FoxNews.com. FOX News Network, LLC, 22 Nov. 2003. Web. 19 July 2011. .

Webster, Michael. "The Patriot Act and You!" ArticlesBase.com. Articles Base, 21 Apr. 2008. Web. 27 June 2011. .

"What’s An Alternative to the USA Patriot Act without Violating the Civil Liberties of Americans?" MyCanada.WS. Canada Immigration Work, 19 May 2010. Web. 16 July 2011. .

Zajac, Andrew. "Patriot Act up for Renewal, but Law's Effectiveness Unclear." Chicago Tribune (Chicago, IL). 04 Apr 2005: n.p. SIRS Researcher. Web. 19 Jul 2011.

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Source #2

by Jacob H. Huebert



This is a written version of a talk given on March 5, 2011, at the Nullify Now convention in Cincinnati.
How can you challenge a federal law that violates the Constitution and, more importantly, violates your liberty?
Suppose, for example, you wanted to get rid of the PATRIOT Act.
I suppose you could try to elect a president who says he opposes the PATRIOT Act and its violation of civil liberties. If a candidate said he’s concerned about the government’s abuses under the PATRIOT Act, and if a candidate said the PATRIOT Act is "shoddy and dangerous," and if a candidate said things like "There is no reason we cannot fight terrorism while maintaining our civil liberties" – maybe you’d vote for him and hope that things change.
Of course, in 2008, millions of Americans voted for a candidate who did say those things.
But when that candidate, Barack Obama, became president, did he make good on his promise to create more oversight over the use of National Security Letters and sneak-and-peek searches? Of course not. Instead, he did the opposite: He strengthened the government’s power to spy on its people without a warrant or probable cause, and he took the exact same views on government power that the Bush Administration had taken.
You could also try to elect a new batch of Congressmen – people who say they’ll respect the Constitution. Millions of Americans voted for Republican candidates who made that promise in 2010.
And then what happened when the PATRIOT Act came up for renewal a few months later? Of course all of these people who had been elected who claimed to love the Constitution – who insisted on reading the Constitution aloud (once, in part) at the beginning of Congress’s term – voted to renew the PATRIOT Act. Ninety percent of the Republicans in the House of Representatives voted to renew the PATRIOT Act without so much as a committee hearing, with no markups, no Amendments, and just 40 total minutes of debate.
And of that handful of Republicans who voted against the PATRIOT Act, most weren’t even tea party members. They were people who had been in Congress for years. Only eight freshman Republicans voted against the PATRIOT Act, and some of the biggest tea party figureheads who go on and on about the Constitution voted for it. No changes, no debate.
When House Democrats moved to add language to the PATRIOT Act that would have required that intelligence probes of U.S. citizens are conducted "in a manner that complies with the Constitution of the United States" only two Republicans voted for it: Walter Jones and Ron Paul.
Meanwhile, the other Republicans – such tea party icons as Michelle Bachmann, Allen West, Kristi Noem – showed just how much they really care about the Constitution, for all their talk. They couldn’t even approve a sentence that said the law had to be applied constitutionally.

So electoral politics aren’t getting us very far.
The Rigged Game of the Federal Courts
What about the federal courts? They’re supposed to be the guardians of our constitutional rights, aren’t they? Granted, they do protect some people’s rights some of the time.
But if protecting your rights requires limiting federal power, don’t expect the federal courts to help. At all.
After all, the courts give all federal legislation what they call a presumption of constitutionality. That means that they assume that the federal government can do anything it wants to you unless you can prove that they can’t do a particular thing. And of course, no one can ever prove that because the courts read Congress’s powers so broadly.
The presumption of constitutionality actually turns the Constitution upside down. If the Constitution really is intended to constrain government and protect our rights, as we’re sometimes told, then all legislation should face a presumption of unconstitutionality unless the government can satisfy its burden to show that the law that it wants to enforce is specifically authorized in the very short list of powers given to Congress in the Constitution, to show that the law is necessary and proper for exercising that power, and to show that the law doesn’t violate any provision of the Bill of Rights.
But unfortunately, the presumption of constitutionality that the federal courts apply isn’t going to change. Ever. That’s because federal judges, including Supreme Court justices, are chosen by the President and confirmed by the Senate. And any person who a President would choose and the Senate would confirm is going to be someone they know they can count on to let them do pretty much anything they want.
It’s a rigged game.
And, by the way, if the federal courts can’t get you one way, they’ll get you another way.
When George W. Bush was president, he had the National Security Agency secretly spy on the phone calls and e-mails of American citizens with no warrant and no probable cause. A group of legal scholars tried to challenge this flagrant violation of constitutional rights, and in 2007 the case came before the U.S. Court of Appeals for the Sixth Circuit.
That Court said there was nothing that they could do about it. After all, no one could prove that they were a victim of the government’s spying because the spying was secret – and the government couldn’t say who it was spying on because it was supposedly a matter of national security. So no victim of this scheme – which everyone knew was going on and every reasonably intelligent person can see is unconstitutional – had any recourse at all in the federal courts.
Again, it’s a rigged game – rigged against you and your liberties.
Rights or Temporary Limited Privileges?
And maybe you’ve noticed that even when the federal government does acknowledge your liberties to some extent, it does so only grudgingly, and makes as clear as it possibly can that, in the end, the government reserves the right to do whatever it wants to you.
For example, take the District of Columbia v. Heller gun decision from a couple years ago, where the Supreme Court finally – for the first time in more than 200 years – acknowledged that the Second Amendment protects an individual right to own a gun for self-defense. In some ways, it seems like a great decision; I certainly congratulate the people who fought and won that case for their heroic work.

But have you actually read the decision by the Republicans’ hero, Justice Antonin Scalia? It says that even though the Second Amendment does protect an individual right, the right is "not unlimited" and subject to "reasonable" restrictions.
So what’s a reasonable restriction? Who knows? It’s whatever the Supreme Court says it is in the next gun case. If history is any guide, the right the Supreme Court ultimately recognizes will turn out to be very thin indeed.
When the lawyer arguing for Second Amendment freedom in that case argued before the Court, he had to recognize the government’s power to infringe your rights to even get the justices to take him seriously. Even while arguing the pro-freedom side, he had to admit that the government could reasonably stop you from owning guns the government deems inappropriate for civilian use, that it could force you to keep your guns locked in a safe, and that it could force you to do and not do all manner of things related to owning guns.
I’m a lawyer myself, and I don’t blame him one bit for that. When you’re arguing in a court, your job is to say what’s going to persuade the court, which won’t always match your philosophical beliefs. I get that.
But that’s the game you’re playing in federal court at best – acknowledging that the government has the power to do whatever it wants and begging it to carve out just a little area where you can have some liberty.
The Nullification Alternative
The only real alternative to the rigged game is nullification, which allows the states to declare federal laws unconstitutional, refuse to enforce them, and protect their citizens from their enforcement.
Nullification isn’t about groveling before politicians and judges to get a few scraps of liberty. Nullification is about the people standing up to the federal government and simply saying no: These are our rights, this is what the Constitution limits you to, and you may go no further.
Nullification is the only way that someone outside the federal government – which always wants as much power as it can get – can have a say as to what’s constitutional and what isn’t. It’s the only way that the people, instead of their would-be masters in Washington, can have a say as to how much liberty they’ll be able to enjoy.
Thanks to Tom Woods and his book on nullification, more and more people are waking up to the reality that presidents, Congressmen, and judges aren’t going to fix things for us. And more and more people are looking to nullification as a potential solution for the government’s ever-increasing intrusions on our lives.

Texans Against TSA Tyranny
For example, last month two bills were introduced in the Texas legislature to put an end to sexual assaults and porno-scanning by the Transportation Security Administration.
Will the federal government – the president, Janet Napolitano, the Congress, or the Courts – ever put a stop to the TSA? Of course not. The federal government never repeals anything, never strikes down anything. It only takes more and more over time.
So here’s what they’ve introduced in Texas, in House Bill 1938. It says that an "airport operator may not allow body imaging scanning equipment" – meaning any device that uses backscatter x-rays or millimeterwaves, that creates a visual image of a person’s unclothed body and is intended to detect concealed objects – "to be installed or operated in any airport in this state." It says that an airport operator who violates that provision shall be subject to a civil penalty of up to $1,000 for each day of the violation. And it authorizes the Texas attorney general to not only collect the penalty, but also to sue for injunctive relief – in other words, to get an order from a Texas court to stop the airports from using the scanners, to shut the TSA down.
And how about those TSA agents who take the opportunities they get to sexually assault whoever catches their eye?
There’s a bill now in the Texas legislature to deal with those creeps, too, that would put a new provision in the state’s sexual assault law. It says that if a person
As part of a search performed to grant access to a publicly accessible building or form of transportation, intentionally, knowingly, or recklessly:
(A) searches another person without probable cause to believe the person committed an offense; and
(B) touches the anus, sexual organ, or breasts of the other person, including touching through clothing, or touching the other person in a manner that would be offensive to a reasonable person,
then that person will be guilty of what Texas calls a "state jail felony," which means they will be put in prison for at least 180 days and up to two years.
Compare that to what the federal government does when its TSA workers when they sexually assault someone: Nothing!
There’s similar legislation in the works in New Hampshire and New Jersey, too. If you want to learn more about these efforts and get some ideas about what you might do to advance similar legislation where you live, the Texas people have some helpful websites that you might want to check out:
• www.tsatyranny.com
• www.supportdignity.com
• www.stopaustinscanners.org
The "Experts" Must Be Ignored (Especially the Ones on the Supreme Court)
As this legislation moves forward in Texas, I’m sure that legal scholars will weigh in and claim that the states can’t do it. They’ll say it’s unconstitutional for the states to do that – which is pretty funny, when you consider that many of these legal scholars are just fine with at least some amount of undeclared war, redistribution of wealth, restrictions on speech, pre-trial detention, the "presumption of constitutionality," and so on. To prove that it’s unconstitutional, they’ll point out that the constitution doesn’t actually say anything about nullification, and they’ll argue that the U.S. Supreme Court would never recognize nullification as legitimate.

But of course nullification is not unconstitutional. You can read the historical reasons why in Tom Woods’s book.
You can also see why by just using your common sense. Supposedly, the Constitution is the highest law of the land. Some people think this means that the Supreme Court’s interpretation of the Constitution is the highest law of the land, but of course that doesn’t make sense, because the Supreme Court is just as capable of distorting or disregarding the Constitution’s plain meaning as any other part of the federal government. So if people in the federal government violate the Constitution, it can’t be unconstitutional to hold them accountable under the law. They’re criminals violating the so-called highest law of the land, so it’s appropriate to treat them as criminals.
The whole point of nullification is that the federal government must not be allowed to determine the extent of its own powers because, when it does, as we can see, it will decide that there are no limits.
Other Ways to Nullify
Of course, arresting federal agents isn’t the only way to effectively nullify a tyrannical federal law. One thing states can do is simply refuse to aid the federal government in doing unconstitutional things; some state and local governments have done just that with respect to the PATRIOT Act. As Tom Woods mentions in his book, others have refused to implement the government’s REAL ID Act.
And state and local governments and ordinary people can do things to simply make it more difficult for the feds to do their evil deeds. For example, I like what many librarians did when the feds started trying to get library patrons’ records to see what books they had read. They simply deleted or shredded the data in advance so no one could ever get to it. There are many ways to peacefully resist the federal government and effectively nullify its unjust laws.
The Most Important Thing You Can Do
I strongly support nullification, but not because I’m a big fan of the Constitution. I’ve never been a big fan of the Constitution. We’ve had it for more than 200 years, and look where it’s gotten us. It’s given us the biggest, most powerful government in world history – a government that kills hundreds of thousands of innocent people around the world through war and many thousands more at home in less obvious ways.
You can say the Constitution been distorted or partially ignored, but if it can be distorted or ignored so easily, what good is it, really?
Apparently it’s not much good, unless a significant portion of the population cares about liberty and is vigilant about defending its liberties. If people become conditioned to the idea that their liberties come from government – and exist only to the extent that the U.S. Supreme Court decides to recognize them – the Constitution is useless. And that’s exactly what’s happened in America.

On the other hand, if people do decide to care about liberties and are willing to fight for them, they are likely to demand and receive them regardless of what the Constitution says. It’s the people’s consent or lack of consent to being ruled that really makes the difference, not a piece of paper.
And that’s why I like nullification.
Nullification is really about withdrawing our consent. It’s about declaring that we should be allowed to rule ourselves and not be ruled by masters in Washington. It’s about rejecting the received opinion of our elites that things must be the way they have always been and that we should simply shut up and listen to our betters. It’s about declaring that what comes first are our liberties – not whatever’s convenient for politicians and the powerful interests that finance their campaigns.
More and more people are coming around to the ideas of libertarianism: the idea that peaceful people should be left alone, the idea that government doesn’t know what’s best for everyone, the idea that stealing and killing don’t become okay when the government does them.
Nullification provides a vehicle for advancing these ideas that has a solid foundation in our history. And even if these particular campaigns to nullify this law or that law don’t work out, they will introduce more people to this concept.
This will help de-legitimize the federal government and its claims to absolute power. It will nullify the myths about our government that exist in people’s minds, that we’re taught from a very young age in our government schools.
Nullifying the government’s legitimacy in people’s minds in the most important thing we can do. It’s what leads to the withdrawal of consent from tyrannical rulers of the sort we’ve seen recently in Tunisia and Egypt. And it’s what will allow us to win in the end.
April 7, 2011
Jacob H. Huebert [send him mail] is the author of Libertarianism Today (Praeger, 2010). He is also an attorney, Adjunct Professor of Law at Ohio Northern University College of Law, and an Adjunct Scholar of the Mises Institute. Visit his website.
Copyright © 2011 Jacob H. Huebert
URL: http://www.lewrockwell.com/huebert/huebert37.1.html

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Source #3

URL: http://people-press.org/2011/02/15/public-remains-divided-over-the-patriot-act/1/
Public Remains Divided Over the Patriot Act
Overview
Public views of the Patriot Act, whose renewal is being debated by Congress, have changed little since the Bush administration. Currently, 42% say the Patriot Act is a necessary tool that helps the government find terrorists, while somewhat fewer (34%) say the Patriot Act goes too far and poses a threat to civil liberties.
In 2006, the public divided evenly over the Patriot Act, with 39% saying it is a necessary tool and 38% saying it goes too far. In 2004, a slight plurality (39%) said it goes too far and threatens civil liberties.
The survey by the Pew Research Center for the People & the Press, conducted Feb. 10-13, 2011 among 1,000 adults, finds that while overall opinions about the Patriot Act have changed modestly since 2006, Democrats express more positive views of the law than they did five years ago.
Currently, about as many Democrats say the law is a necessary tool as say it goes too far (35% vs. 40%). In January 2006, 25% said it was a necessary tool while about twice as many (53%) said it goes too far.
Over the same period, the proportion of Republicans who view the Patriot Act as a necessary tool that helps the government find terrorists has declined slightly, from 65% to 57%.
There is less public awareness of the debate over Patriot Act than there was in 2006 or 2004. Today, just 32% say they have heard a lot (12%) or some (20%) about the issue. In January 2006, 51% heard at least some about the Patriot Act; 44% heard at least some about it in December 2004.
Among those who heard a lot or some about the Patriot Act, 49% see it as a necessary tool while 41% say it goes too far. In 2006, opinion was more evenly divided among those who had heard at least some about the Patriot Act (48% necessary tool, 46% goes too far).
About the Survey
The analysis in this report is based on telephone interviews conducted February 10-13, 2011 among a national sample of 1,000 adults 18 years of age or older living in the continental United States (670 respondents were interviewed on a landline telephone, and 330were interviewed on a cell phone, including 131 who had no landline telephone). The survey was conducted by interviewers at Princeton Data Source under the direction of Princeton Survey Research Associates International. A combination of landline and cell phone random digit dial samples were used; both samples were provided by Survey Sampling International. Interviews were conducted in English. Respondents in the landline sample were selected by randomly asking for the youngest adult male or female who is now at home. Interviews in the cell sample were conducted with the person who answered the phone, if that person was an adult 18 years of age or older. For detailed information about our survey methodology, see: http://people-press.org/methodology/detailed.
The combined landline and cell phone sample are weighted using an iterative technique that matches gender, age, education, race, Hispanic origin, region, and population density to parameters from the March 2010 Census Bureau’s Current Population Survey. The sample also is weighted to match current patterns of telephone status and relative usage of landline and cell phones (for those with both), based on extrapolations from the 2010 National Health Interview Survey. The weighting procedure also accounts for the fact that respondents with both landline and cell phones have a greater probability of being included in the combined sample and adjusts for household size within the landline sample. Sampling errors and statistical tests of significance take into account the effect of weighting. The following table shows the sample sizes and the error attributable to sampling that would be expected at the 95% level of confidence for different groups in the survey:

Sample sizes and sampling errors for other subgroups are available upon request.
In addition to sampling error, one should bear in mind that question wording and practical difficulties in conducting surveys can introduce error or bias into the findings of opinion polls.

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Source #4

Civil rights, uncivil wrongs: the war on terrorism's toll on the U.S. Constitution
By Andrew Rudalevige
Much of the already voluminous commentary on the war on terrorism centers on the question of whether it is a war at all. These three books are willing to stipulate, with varying degrees of enthusiasm, that it is. They differ dramatically, however, over what tactics this war allows and, more broadly, what it means for governing within the limits of the U.S. Constitution. Richard Posner, the prolific circuit court judge and University of Chicago law professor, argues that civil liberties must "vary with the threat level" but that much of what the government is authorized to do under the Constitution "it should not do." To one side of Posner is John Yoo, the Berkeley law professor and former member of the Justice Department's Office of Legal Counsel who spearheaded the Bush administration's legal response to the September 11 attacks; Yoo holds that the strongest presidential claims to unilateral authority are correct and that the resulting policies have "crippled al Qaeda." Far to the other side is Joseph Margulies, a Northwestern University law professor and counsel for several men held at Guantanamo Bay (most prominently the British national Shafiq Rasul, who was released in 2004). Margulies condemns the Bush administration's policies and rejects the notion that war powers can be exercised without being "restrained by the rule of law." Together these books illuminate what the war on terrorism requires of both politicians and citizens--and they tally very differently the costs and the benefits of the course chosen so far.
A LITTLE PRACTICAL WISDOM
Perhaps because of potential conflicts with his day job, Posner has eschewed constitutional interpretation and focused on policy in much of his work. In Not a Suicide Pact, an erudite, if sometimes breezy, book, he does the opposite, focusing on the protections granted by the Constitution; few, he concludes, are inalienable. He borrows his title from a dissenting opinion in a 1949 Supreme Court case, in which Justice Robert Jackson opposed the majority's decision to protect hate speech, warning that "if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." For Posner, constitutional rights are "especially plastic." They are shaped mainly by the Supreme Court justices' interpretation of the Constitution, and interpretations may change with context. National emergencies, for one thing, "may alter the scope of a right." For Posner, the potential link between terrorist organizations and weapons of mass destruction creates just such an emergency today. The situation calls for a "tailored regime" that ranks terrorism somewhere between war and crime and "that gives terrorist suspects fewer constitutional rights than people suspected of ordinary crimes, though not no rights."
Determining what rights exactly--and how the tailored regime should be stitched together--must involve a clearheaded, "instrumental" assessment of costs and benefits. Rights should be determined by balancing the interests of public safety and those of personal liberty. At the heart of Posner's analysis is the econometric concept of expected value: What is an outcome worth given the likelihood of its occurrence? (For example, a $1 lottery ticket with a one-in-a-million chance of winning $1 million has an expected value of $1.) Civil liberties, too, have a payoff, yet their benefits are sometimes speculative, and "probabilistic menaces" to public safety, however far in the future they may be realized, "must be weighed along with certain ones."
Posner is, in effect, reframing Justice Oliver Wendell Holmes' famous 1919 rule for limiting free speech when it presents "a clear and present danger" in order to deal with a clear and probable danger. The Supreme Court did as much in the 1951 case Dennis v. United States, upholding the government's right to ban speech that advocated the government's forceful overthrow. Posner gives the case surprisingly little treatment, but it is noteworthy: the Court rejected the plaintiff's' free-speech claims as subordinate to "other values and considerations" relating to the threat of communism. A majority of the Dennis court strongly endorsed the lower court's view that "in each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."
For Posner, the threat of terrorism today is grave and not improbable. He argues, therefore, that a reasonable interpretation of the Constitution allows for coercive interrogation "up to and including torture," prior restraint prohibiting the publication of documents (provided they are properly classified), bans on inflammatory speech (although he does not recommend these), and surveillance, including of the kind apparently now practiced without judicial warrant by the National Security Agency (NSA). Indeed, he writes, "the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment," provided that computers winnowed the data before human agents reviewed it. Posner's qualifications are important. Still, only habeas corpus, a prisoner's right to have a neutral court review the legality of his imprisonment, survives unconditionally in Posner's regime. This is a crucial exception in light of the Bush administration's repeated claims in court that judges have no authority to review the U.S. military's detention practices. But once the habeas corpus hurdle is cleared, indefinite detention would pass muster with Posner. And with the possibility of endless imprisonment without trial, Posner's objections to using the fruits of coercive interrogation or warrantless surveillance in criminal prosecutions are largely beside the point.
By its very nature, economic analysis rests heavily on one's calculations of options and odds, costs and benefits. Posner accuses civil libertarians of "one-sidedness," but by his own admission he weights security more heavily than liberty. Moreover, his selection of choices sometimes skews the outcome: Certainly, one would prefer to be surveilled than arrested, but are these really the only policy options? Still, as Posner points out, despite the difficulties in making calculations, judgments need to be made, "and there is no good alternative to making them pragmatically."
This begs another question: Who should make these judgments? Posner puts his money on market competition among the branches of government--that is, the operation of checks and balances. Given a Congress with more institutional pride, he would be right. But Posner's claim that Congress "has not been a rubber stamp for the national security initiatives of the Bush administration" rests more on faith than on fact. His examples of congressional independence--such as the "hornet's nest stirred up in Congress" over revelations of wiretapping by the NSA and over the renewal of the Patriot Act--do not reflect actual legislative outcomes. In fact, the House of Representatives and the Senate had merely passed different versions of laws legalizing the NSA's policy, and the Patriot Act was renewed essentially unchanged. The Military Commissions Act of 2006, which authorizes the prosecution of unlawful enemy combatants before military commissions (and was passed after these books were written), paints legislators less as hornets than as mayflies.
QUINTESSENTIALLY EXECUTIVE
All of this is fine by Yoo, since "the powers of war and peace" (as he wrote in a 2005 book) are largely vested in the president. Yoo sees no middle ground between "war" and "crime." Crime automatically activates wide procedural protections. And "because the Constitution's Bill of Rights establishes these rules," he argues, "they are not very flexible"--an assertion that would presumably earn him a low grade from Professor Posner. But war, in turn, activates all sorts of executive powers, including over when and how to use force. This is a matter of historical practice: "Over time, the presidency has gained the leading role in war and national security because of its superior ability to take the initiative in response to emergencies." And it is a matter of definition: questions of national security are "quintessentially executive in nature," and so the Constitution implicitly vests authority over them in the commander in chief.
Yoo is therefore devoted to arguing that the war on terrorism is not about fighting crime; it is "a different kind of war"--a war "by other means"--which requires an adaptation of the traditional rules of war. One might not agree with Yoo that the attacks of September 11 alone activated the president's war powers. But Yoo is right to observe that Congress' September 2001 Authorization for Use of Military Force (UAMF), which was largely drafted by the White House, was a "declaration of war in purpose" with "no limitation on time and place." He also points out that the Supreme Court's 2004 decision in Hamdi v. Rumsfeld upheld the president's power under the AUMF to detain even U.S. citizens as enemy combatants, subject only to limited due process constraints.
So what might those "other means" include'? Like Posner, Yoo thinks that broad warrantless surveillance, coercive interrogation, and indefinite detention (without habeas corpus rights, at least for aliens) are well within legal bounds. Like Posner, Yoo believes that such policies have clear benefits and that these outweigh the costs. But he rejects the notion that judges can or should monitor the system, because "there is no systematic, rational way to strike a balance between [the] competing values" of liberty and security. Having also sidelined Congress, Yoo effectively implies that the balance should be struck by executive fiat.
Yoo wants to assess tactics as well as codify them. He stresses that the legal opinions of the Office of Legal Counsel were meant to give policymakers broad guidelines without predetermining their options, but he does have strong policy preferences. Indeed, the goal of his book is to explain and defend the Bush administration's choices after 9/11. He hopes to correct the "confusion, exaggeration[s], [and] misinformed attack[s] on the government's policies." In fact, he argues, the Patriot Act--the "most vilified and misunderstood piece of legislation to come out of the war on terrorism"--"reasonably responds" to the needs of law enforcement. He claims to be an eyewitness to the "humane" treatment of detainees. Allegations that overly harsh interrogation techniques migrated from Guantanamo Bay to Abu Ghraib are "an exercise in hyperbole and partisan smear," he argues (although he fails to note the contemporaneous migration of General Geoffrey Miller, the commander of the detention center at Guantanamo Bay, who was asked to review prison interrogation procedures in Iraq, from one base to the other). Military commissions have been "fair" and "due process-rich." And it should be "clearly understood that neither [his own] August 2002 memo nor the Justice Department advocated or recommended torture." Hugely peeved by the Department of Justice's seeming retraction of that memo in late 2004, Yoo points out that "the differences in the opinions were for appearances' sake" and that "in the real world of interrogation policy nothing had changed." Overall, he concludes, "there has been no monarchic seizure of power by the President."
This is true. But it is true largely because it rebuts the straw men Yoo has erected on behalf of his critics. (Another example: Yoo slams those who "deny that the Constitution grants any role to the President in conducting war, foreign affairs, and national security policy." How many of those are there?) He deserves credit for making a strong case clearly, but his position on executive authority remains extreme--or, as Posner puts it, "extravagant." In Yoo's view, not even congressional action (aside from funding cuts) may bind the president during wartime. No action seeking to curb the president's core powers can be enforced by either Congress or a court. The Foreign Intelligence Surveillance Act cannot limit presidentially ordered wiretapping in the name of gathering military intelligence. Nor can the 2005 Detainee Treatment Act's ban on torture be unqualified.
Yoo does not discuss his famous August 2002 memo in this context, but its contents are relevant. "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield," it said. Thus, laws that "seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks" themselves "would be unconstitutional."
Yoo's long-term view is sanguine: "The President and Congress usually give up their emergency powers voluntarily, and if they don't, courts step in." But he saves much ire for courts that do just this, decrying, for example, the "judicial micromanagement" of the decision in Hamdan v Rumsfeld, in which the Supreme Court, in his view, both misread the Detainee Treatment Act and misunderstood the proper scope of the president's wartime powers when it ruled that the Bush administration should not have set up military commissions to try Guantanamo detainees. Yoo even invokes the 1886 Supreme Court case Ex Parte Milliganin support of the executive's expansive rights: although the Court determined that Lambdin Milligan himself was not an enemy combatant subject to the jurisdiction of military courts, in so doing it held that such a category of combatants existed. Yet Yoo's view that judges should defer to executive judgment precludes just the kind of factual determination that the Milligan court made.
EXPECTED VALUES
Such judicial deference is precisely what Margulies tears. He strongly takes issue with any conception of presidential power that "claims all the authority that could conceivably flow to the executive branch during a time of armed conflict, but accepts none of the restrictions." For Margulies, if the war on terrorism is a new type of war, it is one that requires more checks on executive power, not fewer. After all, this conflict lacks geographic boundaries and a clear endpoint (or even a way to determine one) and rests on fuzzy definitions of "enemy" and "ally." Under such circumstances, indefinite detention can readily become perpetual, and so the executive must meet a heavy burden of proof to show that it is detaining the right people.
To argue that the Bush administration has tailed to meet this burden, Margulies interweaves the story of the first enemy-combatant cases (Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla) with examples of the U.S. government's treatment of detainees in earlier wars. Posher, and to some extent Yoo, argues in the abstract; Margulies, drawing on testimony from interrogators and prisoners, is painfully concrete. As a result, narratively and stylistically, his book is the most compelling of the three works. Margulies is right to call attention to the lack of executive accountability. Still, his main contribution is not his commentary on presidential powers, which mirrors much recent writing, nor his discussion of technical legal arguments, which may be closer calls than he concedes. But by highlighting the costs of detention and interrogation policies, he offers a starkly different calculation of their expected value.
Margulies argues that many of the men held at Guantanamo Bay--whom former Secretary of Defense Donald Rumsfeld has called "among the most dangerous, best-trained, vicious killers on the face of the earth" have nothing to do with terrorism. The Pentagon's own data show, as Margulies puts it, that "only 8 percent of the prisoners at the base are even alleged to be al-Qaeda fighters." For Margulies, policy preferences predetermined legal positions. One glaringly mistaken result was the White House's decision in early 2002 to avoid holding status-determination hearings, as urged by the State Department at the time, and to designate all the men captured in Afghanistan as enemy combatants with no rights under the Geneva Conventions. Since only a small fraction of those people (perhaps 1 in 20) were captured by U.S. forces, there was little way to know their provenance or intelligence value. Aliens they were, but enemy aliens? Both wheat and chaff were sent to Guantanamo Bay. There, the detainees underwent treatment that Margulies charges was inhumane at best (he quotes prison-camp sources to suggest that officials like Yoo were treated to a staged "dog and pony show" when they visited). Other captives were turned over to countries with less sensitivity about torture. Even now, the meaning of "enemy combatant" is hopelessly vague and fluid, still defined by unchecked executive discretion.
Some people would argue that it is worth paying the cost of such tactics if they succeed in eliciting crucial information. But their efficacy is far from clear. Yoo and Margulies both detail the interrogation of the detainee Muhammad al-Qahtani and draw opposite conclusions about the severity of the treatment and the utility of the information it produced. Yoo justifies curbing Geneva Convention protections on the grounds that the "flagrant breach by one side of a bargain"--such as al Qaeda's brutal methods--"generally releases the other side from the obligation to observe its end of the bargain." But what if holding one's end of the bargain helps more than it hurts? Does the United States gain any strategic advantage by redefining the rules of war to its temporary advantage'? What if such a redefinition hurts not just the individuals involved but also the chances for success of the wider war on terrorism?
Margulies notes the case of a U.S. officer court-martialed in the Philippines in 1900 for forcing local insurgents to ingest vast amounts of water during interrogation sessions, whose defense basically rested on Yoo's "flagrant breach" argument. The judge advocate general in that case held that "no modern State will admit for an instant" that "a belligerent who is at war with a savage or semi-civilized enemy may conduct his operations in violation of the rules of civilized war." During the Vietnam War, the U.S. government applied the Geneva Conventions to Vietcong combatants hiding among South Vietnamese civilians even though the North Vietnamese government refused to apply them to U.S. soldiers.
In a January 2002 memo to the White House, then Secretary of State Colin Powell argued that the Office of Legal Counsel had misrepresented the Bush administration's true options (as well as facts central to its legal conclusions). Not only does respecting the Geneva Conventions protect U.S. troops captured by the enemy, Powell argued, but it also "preserves U.S. credibility and moral authority by taking the high ground, and puts us in a better position to demand and receive international support." Yoo asks: "What president would put America's image in the United Nations above the protection of thousands of innocent civilian lives?" But he does not consider whether preserving America's image abroad itself might not help to protect those lives. For Margulies the answer is clear: "Guantanamo (and the claim of unlimited presidential power that it symbolizes) acted as a powerful wedge, driving the United States away from the Muslim world on whose behalf we claimed to wage this war, and from the Western democracies whose standard we claimed to bear."
Margulies sometimes mistakes editorial opinion for empirical evidence, but he nonetheless drives home the point that the expected value of a given policy must encompass expected values--the values expected of what Ronald Reagan called, echoing John Winthrop, "this shining city on a hill?' As President George W. Bush himself put it on September 20, 2001, "We are in a fight for our principles, and our first responsibility is to live by them."
For all the lip service paid to the difficult choices presented by the war on terrorism, however, President Bush's prescription may be the most difficult to follow. It is easier for legislators and voters to delegate powers to the president than to deliberate on their proper scope. It is easier to ban hateful speech than to defeat it in the marketplace of ideas. It is easier to torture evil people than to allow them to remain silent and defiant. And it is very hard to trust, as Senator John McCain (R-Ariz.) once put it, that "our greatest strength [is] that we are different and better than our enemies." Yet that is the only course that might prove, in Justice Jackson's formulation, both practical and wise.
Andrew Rudalevige is associate professor of political science at Dickinson College and the author of The New Imperial Presidency: Renewing Presidential Power After Watergate. From "Civil Rights, Uncivil Wrongs: The War on Terrorism's Toll on the U.S. Constitution" by Andrew Rudalevige, Foreign Affairs, January/February 2007, pages 148-54.
Full Text: COPYRIGHT 2007 Taylor & Francis Ltd.
http://www.tandf.co.uk/journals/

Source Citation:
Rudalevige, Andrew. "Civil rights, uncivil wrongs: the war on terrorism's toll on the U.S. Constitution." Current 493 (2007): 30+. Gale Opposing Viewpoints In Context. Web. 30 June 2011.
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Source #5

STATEMENT ON REFORMING
THE PATRIOT ACT
A REPORT BY THE CONSTITUTION PROJECT’S
LIBERTY AND SECURITY COMMITTEE
September 22, 2009
The Constitution Project
1200 18th Street, NW
Suite 1000
Washington, DC 20036
(202) 580-6920 (tel)
(202) 580-6929 (fax)
info@constitutionproject.org
www.constitutionproject.org
STATEMENT ON REFORMING THE PATRIOT ACT
In October 2001, Congress enacted the USA PATRIOT Act to expand the government’s authority
to conduct surveillance and search and monitor private records and communications. When
Congress reauthorized the Patriot Act in 2006, it made most provisions of the Act permanent,
but three provisions are scheduled to sunset on December 31, 2009. These expiring provisions
cover business record orders, surveillance of a so-called “lone wolf” terrorist, and “roving”
wiretaps.
Since the initial passage of the Patriot Act, we have learned how numerous provisions of the Act
intrude upon Americans’ privacy rights and civil liberties. Although many parts of the Act were
designed to remedy gaps in the United States’ intelligence gathering powers, the Patriot Act
authorizes overly broad executive powers to track, monitor, and search individuals without
adequate safeguards to forestall abuse. In too many instances, such surveillance unnecessarily
chills First Amendment freedoms and intrudes upon Fourth Amendment rights.
We, the undersigned members of the Constitution Project’s Liberty and Security Committee,
agree that the Patriot Act is in need of reform. Some of us would go further, and ask Congress
to allow all of the sunsetting provisions to expire, and would also seek repeal of additional
Patriot Act provisions. But we are united in urging Congress that it should only reauthorize
these three sunsetting provisions if they are amended as outlined below to include more robust
protections for constitutional rights and civil liberties. Further, Congress should take this
opportunity to revisit and reform two additional Patriot Act provisions covering national security
letters and ideological exclusion.
A. THE SUNSETTING PROVISIONS
1. Business Records Provision: Section 215 of the Patriot Act
Section 215 of the Patriot Act, also known as the “business records” or “library records”
provision, expanded the FBI’s power to obtain material from businesses in connection with
counter-terrorism or counter-espionage investigations. It eliminated the prior requirement that
the information sought must pertain to an agent of a foreign power, and it expanded the kind
of material that could be sought and the entities that could be required to provide information.
Under Section 215, the government is required to make only a minimal showing to a judge to
obtain an order requiring any person or entity to turn over any document or object. The FBI
does not even need to show that the items sought relate to a person the FBI is investigating.
The government has to prove only that the information or object sought is relevant to an
investigation to protect against international terrorism or espionage. Moreover, Section 215
includes a non-disclosure or “gag order” requirement, allowing the government to effectively
bar recipients from disclosing that they have received such orders.
While a judicial order is required before the government can seek records under Section 215,
the minimal showing that must be made combined with the broad scope of records that can be
obtained makes this power ripe for abuse. As discussed below, we are likewise concerned
about the National Security Letter Provision of the Patriot Act, which is not scheduled to sunset.
Reforming the Patriot Act
2
That provision does not even require a court order and creates similar, but even greater,
potential for abuse.
RECOMMENDATIONS:
Congress should amend Section 215 to restore safeguards. These should include all of
the following:
a) Tightening the standard for issuing an order under Section 215 to require a showing
to a judge of specific and articulable facts demonstrating that the material sought
pertains to a suspected agent of a foreign power or a person in contact with or
otherwise directly linked to such an agent;
b) Limiting to 30 days the period during which the recipient of a Section 215 order can
be required not to disclose existence of the order, unless the government can prove
to a judge that there is reason to believe that a specified and articulable harm would
result unless the “gag order” is extended; and
c) Requiring adoption of minimization procedures, to ensure that the scope of the order
is no greater than necessary to accomplish the investigative purpose.
2. “Lone Wolf” Provision: Section 6001 of the Intelligence Reform and Terrorism
Prevention Act
The “lone wolf” provision was originally created to permit surveillance of a hypothetical “lone
wolf” terrorist – one who operates without ties to any international terrorist organization. The
provision defines “agent of a foreign power” as “any person other than a United States person
who engages in international terrorism or activities in preparation therefore . . . .” This
provision eliminated the prior requirement in the Foreign Intelligence Surveillance Act (FISA)
that surveillance be carried out only against persons suspected of being agents of foreign
powers or terrorist organizations. It allows the government to use FISA for surveillance of a
non-US person who has no known ties to a group or entity. This authority was further
expanded by the amendments enacted last summer which broadened the definition of an
“agent of a foreign power” to include individuals “engaged in the proliferation of weapons of
mass destruction” even if they are acting alone and are unaware that their actions may be
contributing to a WMD effort.
Under FISA, the government can obtain a warrant without a showing of probable cause that a
crime is being committed or is about to be committed. FISA’s authorization of secret wiretaps
and secret home searches in the United States is an exception to traditional Fourth Amendment
standards, which has been justified on the basis that these extraordinary surveillance powers
are limited to investigations of foreign powers and their agents. By eliminating the requirement
to show a connection to any foreign group, the “lone wolf” provision undermines this
justification for the lower FISA standards and raises serious constitutional concerns under the
Fourth Amendment.
Reforming the Patriot Act
3
RECOMMENDATION:
Congress should let the "lone wolf" provision sunset due to the serious constitutional
issues it raises. Individuals suspected of engaging in terrorism or activities in
preparation therefore would still be subject to surveillance and search under traditional
and established criminal law standards.
If Congress reauthorizes the “lone wolf” provision it should include a new sunset period
together with a rigorous public reporting requirement that would help Members of
Congress and the public to assess whether there is any justification for this provision.
The new reporting provision should include requirements that the executive branch
report on the number of “lone wolf” surveillances authorized and on how many of these
targets were charged and prosecuted. This would enable Congress to assess whether
surveillance under Title III which is already available for traditional criminal prosecutions
is sufficient. Currently, the Attorney General is required to report to Congress
semiannually on the use of the “lone wolf” provision; however such reports are not
made public.
3. “Roving” Wiretap Provision: Section 206 of the Patriot Act
Section 206 of the Patriot Act allows the government to obtain “roving wiretap” orders that
cover multiple phones or email addresses, without citing the particular location of the target.
These wiretaps are conducted under FISA and based on orders received from the FISA Court.
This provision was designed to allow surveillance of a target who continually eludes government
agents by constantly changing phones and email addresses. However, under Section 206,
unlike in traditional criminal investigations, the government is not required to identify either the
particular communications device to be monitored or the individual who is the subject of the
surveillance. The provision does require that the target be described “with particularity,” but
not that the target be named. Because there is no particularity of location requirement, as
traditionally required by the Fourth Amendment, innocent civilians may become inadvertent
targets of surveillance.
RECOMMENDATION:
Congress should require that if the wiretap order does not specify the location of the
surveillance, then it must identify the target. Conversely, if the order does not specify
the target, then it should identify the location with particularity.
Reforming the Patriot Act
4
B. ADDITIONAL PROBLEMATIC PATRIOT ACT PROVISIONS
1. National Security Letter Provision: Section 505 of the Patriot Act
National Security Letters (NSLs) are demand letters signed by officials of the FBI and other
agencies, which require disclosure of sensitive information held by banks, credit companies,
telephone carriers and Internet Service Providers, among others. No prior judicial approval is
required to issue an NSL, and recipients of NSLs are usually prohibited from disclosing the fact
or nature of a request.
Section 505 of the Patriot Act eliminated the requirement that the information being sought
“pertain to” a foreign power or the agent of a foreign power. This requirement protected
information about Americans because few are agents of a foreign government, a foreign
terrorist organization, or another foreign power. Instead, today it is sufficient for the FBI
merely to assert that the records are “relevant to” an investigation to protect against
international terrorism or foreign espionage. Section 505 also eliminated the statutory
requirement that agents have any factual basis for seeking records. In addition, Congress has
dramatically expanded the types of “financial institutions” on which an NSL can be served to
include travel agencies, real estate agents, jewelers, the Postal Service, insurance companies,
casinos, car dealers, and other businesses not normally considered “financial institutions.”
Audits by the Justice Department Inspector General (IG) released in 2007 and 2008 have
revealed numerous abuses in the issuance of NSLs. The IG audits demonstrated that FBI
agents had used NSLs in many cases where they were not authorized, including using them
against individuals insufficiently related to any FBI investigation and issuing inappropriate
“blanket NSLs” in violation of FBI policy. The audits also revealed that the FBI had used
“exigent letters” not authorized by law to quickly obtain information without ever issuing the
NSL that it promised to issue to cover the request.
RECOMMENDATIONS:
Congress should enact reforms to limit the scope of NSLs and the potential for abuse.
These should include all of the following:
a) Requiring that NSLs be used only to obtain records that pertain to suspected
terrorists or spies, by re-establishing the prior requirement that there be specific and
articulable facts giving reason to believe that the records sought pertain to an agent
of a foreign power;
b) Establishing reasonable limits on the “gag” that attaches to an NSL, requiring it to be
narrowly tailored and limiting it to 30-days, extendable only by a court and based
upon a showing of necessity;
c) Establishing recipients’ rights to seek judicial review of NSLs; and
d) Requiring adoption of minimization procedures for information obtained with an NSL
to ensure that the scope of the order is no greater than necessary to accomplish the
investigative purpose.
Reforming the Patriot Act
5
2. Ideological Exclusion Provision: Section 411 of the Patriot Act
Section 411 of the Patriot Act expanded the grounds for excluding and deporting foreign
nationals based upon speech, raising serious First Amendment concerns. This provision permits
the United States to deport foreign nationals for wholly innocent support of a “terrorist
organization,” even where there is no connection between the foreign national’s support and
any act of violence, much less terrorism, by the recipient group. It also bars admission to the
United States of foreign nationals who “endorse or espouse terrorist activity” or who “persuade
others to support terrorist activity or a terrorist organization” in ways determined by the
Secretary of State to undermine U.S. efforts to combat terrorism. It also excludes
representatives of groups that “endorse acts of terrorist activity” in ways that undermine U.S.
efforts to combat terrorism.
These provisions make individuals excludable and removable for speech and association that is
constitutionally protected by the First Amendment, and are subject to the same sorts of
ideologically biased application that the 1952 McCarran-Walter Act permitted before it was
repealed over thirty years later. These provisions were initially cited by the State Department in
denying admission to Tariq Ramadan, a Swiss scholar of Islam who had been hired to fill an
endowed chair at Notre Dame University.
RECOMMENDATION:
Congress should amend Section 411 to eliminate deportation and exclusion based on
speech and association that would be protected by the Constitution if engaged by a
United States citizen. When it comes to core First Amendment freedoms, we should not
tolerate a double standard.
Reforming the Patriot Act
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Members of the Constitution Project’s
Liberty and Security Committee*
Endorsing the Statement on Reforming the Patriot Act
CO-CHAIRS:
David Cole, Professor, Georgetown University Law Center
David Keene, Chairman, American Conservative Union
MEMBERS:
Stephen E. Abraham, Partner, Fink & Abraham LLP; Lieutenant Colonel, Military
Intelligence, United States Army Reserve (Ret)
Azizah al-Hibri, Professor, The T.C. Williams School of Law, University of Richmond;
President, Karamah: Muslim Women Lawyers for Human Rights
Bob Barr, Former Member of Congress (R-GA); CEO, Liberty Strategies, LLC; the 21st
Century Liberties Chair for Freedom and Privacy, American Conservative Union;
Chairman, Patriots to Restore Checks and Balances; Practicing attorney; United States
Attorney for the Northern District of Georgia, 1986-1990
Christopher Bryant, Professor of Law, University of Cincinnati; Assistant to the Senate
Legal Counsel, 1997-99
Phillip J. Cooper, Professor, Mark O. Hatfield School of Government, Portland State
University
John W. Dean, White House Counsel, Nixon Administration
Mickey Edwards, Lecturer, Woodrow Wilson School of Public and International Affairs,
Princeton University; former Member of Congress (R-OK) and Chairman of the House
Republican Policy Committee
Thomas B. Evans, Jr., Former Member of Congress (R-DE) and Co-Chairman of the
Republican National Committee; Founder, Florida Coalition for Preservation
Eugene R. Fidell, Florence Rogatz Visiting Lecturer in Law, Yale Law School
Louis Fisher, Specialist in Constitutional Law, Law Library, Library of Congress
Michael German, Policy Counsel, American Civil Liberties Union; Adjunct Professor,
National Defense University School for National Security Executive Education; Special
Agent, Federal Bureau of Investigation, 1988-2004
Melvin A. Goodman, Senior Fellow, National Security Project, Center for International
Policy
Reforming the Patriot Act
7
Morton H. Halperin, Senior Advisor, Open Society Policy Center
David Lawrence, Jr., President, Early Childhood Initiative Foundation; former
Publisher, Miami Herald and Detroit Free Press
Thomas R. Pickering, Undersecretary of State for Political Affairs, 1997-2000; United
States Ambassador and Representative to the United Nations, 1989-1992
L. Michael Seidman, Professor, Georgetown University Law Center
Earl Silbert, Partner, DLA Piper; United States Attorney, District of Columbia, 1974-
1979; Former Watergate Prosecutor
Neal Sonnett, Chair, American Bar Association Task Force on Treatment of
Enemy Combatants and Task Force on Domestic Surveillance in the Fight Against
Terrorism; former President, National Association of Criminal Defense Lawyers; former
Assistant United States Attorney for the Southern District of Florida
Geoffrey Stone, Harry Kalven, Jr. Distinguished Service Professor of Law, the
University of Chicago Law School
James A. Thurber, Director and Distinguished Professor, Center for Congressional and
Presidential Studies, American University
Charles Tiefer, General Counsel (Acting), 1993-94, Solicitor and Deputy General
Counsel, 1984-95, U.S. House of Representatives
Don Wallace, Jr., Professor, Georgetown University Law Center; Chairman,
International Law Institute, Washington, DC
John W. Whitehead, President, the Rutherford Institute
Roger Wilkins, Clarence J. Robinson Professor Emeritus, George Mason University;
Director of U. S. Community Relations Service, Johnson Administration
CONSTITUTION PROJECT STAFF:
Sharon Bradford Franklin, Senior Counsel
* Affiliations listed for identification purposes only

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