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Commentary

The PATRIOT Act’s Assault on the Bill of Rights



To the layperson looking at John Ashcroft’s now-infamous road show in defense of the USA PATRIOT Act, the whole ruckus—complete with organized protestors and opportunistic reporters—must look rather comical. In fact, with 91 percent of registered voters unaware of the Act’s encroachment on civil liberties, the entire dispute might even appear unnecessary. Unnecessary, that is, until you take a look at the Act in all of its 342 pages of verbose details and constitutional infractions. And then, somewhere between the elimination of privacy rights and abolition of checks and balances, it becomes startlingly apparent that over the furor of “preventive justice”, the White House has silently squandered our constitutional protections of due process and civil liberties.

The PATRIOT Act’s baleful abrogation of our right to due process under the law cannot be overstated. As defined in legal jargon, our constitutional right to due process endows every person with appropriate safeguards to protect against arbitrary or unreasonable treatment under the law. It is noteworthy to all, including the Department of Justice, that the framer’s used the term ‘person’ instead of ‘citizen’ in reference to due process. This makes the worst provisions of the PATRIOT Act all the more deplorable for their targeted discrimination of non-citizens. In essence, these provisions institute ideological censorship, authorize deportation for lawful group activities, and allow the Attorney General to detain foreigners with a piece of paper.

Such blatant constitutional violations by the PATRIOT Act, however, are not restricted to foreigners alone. The legislation expands terrorism laws to include “domestic terrorism”, which could subject common political organizations to surveillance, wiretapping, and harassment for political advocacy. Consequently, the mere threat of criminal action is employed to suppress peaceful dissent.

Intelligence agents are similarly granted increased powers to detain citizens for investigative purposes and conduct surveillance—even when there is no basis for suspecting criminal activity. One particularly Orwellian provision involves the notorious “sneak and peek” warrant. Not to be confused with the Fourth Amendment’s protection against unreasonable search and seizures, this new and improved PATRIOT warrant permits agents to search homes and confiscate property under a low evidentiary standard, without first notifying the owner. The warrant also betrays long-held “knock and announce” requirements—allowing subjects of a search to challenge errors in the warrant, such as a wrong address or mistaken name. This particularly odious due process violation finally found it’s way back on the House floor, where it was overwhelmingly repealed in a show of bipartisan support.

The House also voted to repeal Section 215 of the Act, extending government surveillance powers into the very bastions of access to the free press: bookstores and public libraries. Under this provision, the FBI can force librarians and booksellers to turn over the records of their customers without showing probable cause before an ordinary court. The Act also carries a gag order, criminalizing any discussion of FBI searches with the threat of prosecution. Contrary to Ashcroft’s dismissal of librarian concerns as “baseless hysteria”, one survey by the University of Illinois in October 2002 found that federal and local law enforcement officials contacted over 10 percent of their universities for investigation. After checking this university survey for it’s authenticity, it would seem that Ashcroft would be well advised to collaborate with law enforcement officials before he starts a war of words with our nation’s librarians.

Such outrageous violations of due process and equal protection have not gone unnoticed in America’s town halls. More than 160 local governments and three states have passed resolutions opposing the PATRIOT Act, and numerous civil liberty groups have filed lawsuits against the Act’s constitutional violations. At the same time the Inspector General of the Justice Department has submitted two scathing critiques of the Department’s treatment of immigrants swept up under the Act’s broad provisions. The report details dozens of blatant civil rights abuses, many alleging inhumane treatment of prisoners at the hands of Department employees.

What makes these shocking disclosures all the more repugnant is the latest attempt by the Bush Administration to expand state powers even further with a new PATRIOT II. As outlined in his politically motivated speech the eve of 9-11, President Bush proposed to drop current subpoena protections, expand the federal death penalty statutes, and bar purported “terror suspects” from being released on bail. With civil liberties already overrun by patriotic fervor and state abuse, how can the American people possibly afford to squander more constitutional protections?

The Administration’s current policy seems hazardously duplicitous when it asserts its commitment to freedom and democracy, particularly when both principles seem to be the first casualties of war. As Senator Russell Feingold, the lone Senate opposition vote to the PATRIOT Act, forebodingly said, “Preserving our freedom is one of the main reasons that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people.”


Brigid O’Neil is a former researcher at the Center on Peace & Liberty at The Independent Institute in Oakland, California.






  • MyGovCost.org
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