Repeal the Patriot Act
by NJ Superior Court Judge Andrew P. Napolitano (Ret.)
March 5, 2004
Earlier this week when President Bush asked Congress to re-enact the portions of the Patriot Act that are due to expire at the end of next year, he provoked a critical review of this controversial law. Those who believe that our freedoms are guaranteed and cannot be legislated away by Congress remain committed to the repeal -- not the renewal -- of this overreaching legislation.
The Constitution prohibits invasions of privacy by the government by denying it the power to engage in unreasonable searches and seizures absent a warrant issued upon probable cause. Prior to Sept. 11, 2001, we could actually enjoy that right. But in October 2001, the Patriot Act changed all this. In addition to other violations of the Constitution which it purports to sanction, the Act authorizes intelligence agencies to give what they obtain without probable cause to prosecutors; and it authorizes prosecutors to use the information thus received in ordinary criminal prosecutions. Even worse, the custodians of the records are now prohibited from telling you that your records were sought or surrendered.
This is more than just academic. If the government can get evidence against you from your financial institution under the guise of national security -- i.e., without a showing of probable cause -- but use it in a criminal case against you, then the Constitution's guarantees have been shredded. But you know that already.
What most Americans don't know is that on Dec. 13, 2003, the right to privacy suffered another serious blow. On that day, after the capture of Saddam Hussein, President Bush signed into law the Intelligence Authorization Act for Fiscal Year 2004. This statute expands the term "financial institution" so as to include travel agencies and car dealers, casinos and hotels, real estate and insurance agents and lawyers, news stands and pawn brokers, and even the Post Office.
Now, without you knowing it, the Justice Department can learn where you traveled, what you spent, what you ate, what you paid to finance your car and your house, what you confided to your lawyer and insurance and real estate agents, and what periodicals you read without having to demonstrate any evidence or even suspicion of criminal activity on your part. And the government can now, for the first time in American history, without obtaining the approval of a court, read your mail before you do, and prosecute you on the basis of what it reads. (Of course, if the government doesn't prosecute you, you'll likely never even know that it has invaded your privacy.)
None of this was supposed to have happened. The tools Congress gave to intelligence agencies are only constitutional when used just for intelligence purposes -- like watching or deporting foreign spies -- and only against genuine foreign threats. When criminal prosecution is implicated, the Constitution's protections are triggered.
Most Americans don't want the government to know of their personal behavior, not because we have anything to hide, but because without probable cause, without some demonstrable evidence of some personal criminal behavior, the Constitution declares that our personal lives are none of the federal government's business.
Government is not reason or eloquence, George Washington once said, it is force. That's why we have a Constitution: to restrain the government's exercise of force so we can be a free people. Government surveillance undermines freedom because it is natural to hesitate to exercise freedom when the government is watching and recording. Numerous Supreme Court decisions have underscored this by holding that freedom needs breathing room. With the government's eyes in our hotel rooms, lawyers' offices and mailboxes, freedom will suffocate.
In his famous dissent in Olmstead, Justice Brandeis called privacy -- which he defined as "the right to be let alone" -- "the most comprehensive of rights and the right most valued by civilized men." Brandeis argued that the framers knew that Americans wanted protection from governmental intrusion not only for their property but also for their thoughts, ideas and emotions. Many current members of Congress and the Justice Department, it would appear, disagree, since they have continued their inexorable erosion of this most basic right.
Mr. Napolitano, a judge of the Superior Court of New Jersey from 1987 to 1995, is the senior judicial analyst with the Fox News Channel.
|How the System Works
||Truth in Justice