- The Washington Times - Sunday, August 3, 2003

By a stunning 309-118 vote, the House of Representatives on July 22, reflecting a growing apprehension about the USA Patriot act around the country, voted to deny funding for a key section of that act. Before that move, at least 142 cities and towns and three state legislatures, have passedstrongresolutions against the Patriot Act.

The action by the House is the first time either chamber of Congress has voted to revoke any part of the act. The size of the overwhelming bipartisan vote reflects the concern many members are hearing from their constituents across the country about diminishing individual liberties under the act — with the attorney general working on an even more invasive Patriot Act II.

The House — in the amendment to the appropriations bill for the Commerce, State and Justice departments — focused on Section 213 of the Patriot Act, which is actually called the “sneak-and-peek” provision in the legislation. The section gives federal law enforcement agencies the power to enter a home or office while the occupant is elsewhere. A warrant is still required, but under a lower evidentiary standard than before the act was passed.

During the covert search, agents can take photographs,seize physical property, examine a computer’s hard drive and insert the digital “magic lantern,” also known as the “sniffer keystroke logger.” Once installed, the program creates a record of every stroke you make, whether you transmit it over the Internet or not. On another unannounced “sneak-and-peak” search, the agents can download that information — which constitutes an additional government invasion of what’s left of your privacy.

The House amendment ending funding (not yet addressed by the Senate) is aimed at Section 213’s delay in notifying the occupants that their premises have been searched. With few exceptions, the Federal Rules of Criminal Procedure have required that agents leave a copy of the warrant and a receipt of confiscated items where the property was taken.

That way, you and your lawyer can immediately challenge the search. The agents may have had the wrong address, wrong name or exceeded the limits of the warrant in what they took.

Limited notification delays have been allowed in the past if, for example, there is danger that the occupant will flee prosecution. But Section 213 expands these delays to 90 days or, if a judge agrees, longer. These secret searches apply not only to alleged national security probes, but also to any criminal investigation.

This amendment — a historic reminder that the British “general search warrant” was a precipitating cause of the AmericanRevolution—is co-sponsored by Republican libertarian Rep. Ron Paul (Texas); Democrat and presidential candidate Rep. Dennis Kucinich (Ohio); and Republican Rep. C.L. “Butch” Otter (Idaho). Of the 309 votes favoring the measure, 113 were Republicans.

Mr.Otter, a rancher and strong advocate of gun and property rights, was the driving force in this amendment that Sam Adams would have called patriotism. “Congress is joining the American people and coming to its senses,” Mr. Otter says. “This is just the beginning of a crusade to which more and more of my colleagues are rallying.

“I completely understand the passion that gripped us all as the smoke was still rising from the ruins in New York and here in Washington,” Mr. Otter says. “Who would not feel compelled to act, with the cries of victims and their families still ringing in our ears? But this law (the USA Patriot Act) goes too far, and in doing so, it gives our enemies the kind of victory they could never win on their own.”

The Justice Department will, of course, use all of its political resources to kill a similar measure in the Senate. Already, Justice officials have attempted to malign this significant measure by calling it the “terrorist tipoff amendment.” If the House rebellion against the overreaching of the Patriot Act survives a joint conference meeting between the House and Senate, President Bush will decide whether to sign or veto the vigorous bipartisan House defense of this crucial American liberty.

When James Otis of Boston spoke in the King’s court in Massachusetts in 1761 against the sweeping British searches of colonial homes and businesses, he lost the case. But John Adams, who was in the courtroom, noted: “Then and there the child Independence was Born.”

Now, more than two centuries later, it is Mr. Otter’s hope that “with this amendment we begin the process of regaining the title of a nation of people who are fit for liberty” — and, under the Constitution, will be safe and free.

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