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The real nuclear option
“The deal of a lifetime.” “The Compromise of the Century.” “Statesmanship of the highest order.” Whatever the pundits call it, the nation’s attention was riveted recently on the drama playing itself out in the U.S. Senate on the “nuclear option.” It appeared as if a majority of inhabitants of the world’s most powerful nation actually had convinced themselves mankind’s future hung in the balance on a procedural rule concerning voting on judicial nominees.
Nothing, it seemed, was more important than avoiding this “nuclear option.”
In fact, this stage play was a tragic distraction. The real nuclear option, one that truly threatens the foundations of our republic, has been hardly noticed in the hubbub over judicial filibusters. This real-life drama began playing out not in the glare of self-congratulatory news conferences by primping senators, but behind closed doors in that august body. It is the fast-track campaign to expand the Patriot Act; a drive orchestrated quietly but firmly by the White House.
If it succeeds, the Fourth Amendment to the Constitution, on which the fundamental notion of privacy is based, will have been obliterated as surely as if targeted by a nuclear bomb.
Specifically, the Intelligence Committee recently voted 11-4 to expand the Patriot Act, to permit the FBI to dispense with grand jury or judicial approval for orders to obtain sensitive, private information on a law-abiding citizen. As envisaged by this group of constitutionally challenged senators, and for “more efficient” evidence-gathering, the FBI could write its own search orders for whatever evidence it wanted to peruse — be it medical records, gun purchase records, tax records, library records or any other personal information — without ever needing to go before a federal judge to ensure minimal constitutional standards are met. This wrongheaded step is spearheaded by Sen. Pat Roberts, Kansas Republican, and of course, enjoys the FBI’s support.
Making every part of the Patriot Act permanent is bad enough. When we voted for the bill in 2001, we did so with little time and with the understanding some of its broad expansions of secret search and surveillance would expire at the end of this year. Many of us on both sides of the aisle insisted on sunset measures, as a way to force Congress to re-examine whether these powers actually enhanced our security or at least some protections should be added for our fundamental liberties.
Now, however, those who oppose any repair of the Patriot Act are looking to take an inch and a mile at the same time. The Roberts proposal just reported out by the Intelligence Committee provides a huge exception to the longstanding Fourth Amendment’s requirement, that before the government can access a person’s private information, it must have at least a reasonable suspicion of wrongdoing. If this proposal becomes law, the government on its own could gain access to virtually any private information it wants, without ever establishing before a judge there is any link between that person and suspected criminal or terrorist activity; what Sen. Dianne Feinstein, California Democrat, rightly recognized as creation of “fishing expedition” subpoenas.
Unfortunately, many in Congress buy the supporters’ argument these “administrative subpoenas” are no different than subpoenas that allow investigators to bypass prior court approval in health-care investigations. A quick look at the law, however, reveals any records seized in health-care investigations may only be used in investigations of those specific offenses. The fishing expedition subpoenas proposed by Mr. Roberts, on the other hand, would apply in any investigation, at any time, if the FBI simply claims terrorism in general is somehow implicated.
Aside from the Medicare argument, the FBI asserts this new power is particularly needed for emergency situations. On closer scrutiny, this justification, too, fails. Whether the FBI proceeds in a super-secret Foreign Intelligence Surveillance Act court under the current Patriot Act, or in a normal district court, there is always a federal judge available, 24 hours a day, seven days a week, to consider emergency requests for search warrants or foreign intelligence court orders.
There are many ways federal investigators can obtain immediate authorization for records searches, not to mention any other type of investigative activity like wiretapping or physical searches. Expanding “administrative subpoena” power to any investigation the government claims has some vague connection to “terrorism,” serves no purpose other than to remove a dispassionate judicial check on the FBI’s investigative decisions; decisions that can be ill-considered at times.
The expansion of a newly permanent Patriot Act would be an extraordinarily dangerous step for our democracy. I appreciate the need to be ultracautious when dealing with our enemies in the war on terrorism. But, the Roberts Patriot Act Expansion bill, with its fishing-expedition subpoenas, is beyond the pale.
The Fourth Amendment — which heretofore has checked the power of the government to obtain private information on citizens without a good reason — is about to be obliterated by this Patriot Act expansion, while we bicker and squabble over three or four federal judgeships. If its proponents have their way, there won’t be much need left for federal judges at all.
Bob Barr, a former Republican member of the House of Representatives from Georgia, is a columnist for United Press International.
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