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Deconstructing the Bill of Rights
by Alan Caruba
21 January 2004Constitution

The Patriot Act is so broadly written that nothing protects a citizen with the provisions and intent of the Fourth Amendment.


I do not think our government is evil, but I do think evil men could be elected to lead our government. It happened in Germany in the 1930s.

During the last century, governments given totalitarian powers killed an estimated 169,000,000 people. If you don’t think it can’t happen here, I would remind you of the flames that destroyed the Waco, Texas compound of a religious cult that, by most accounts, didn’t represent a threat to anyone, wasn’t engaged in any illegal acts, and, in which, more than 90 men, women and children were gassed and incinerated.

This would suggest that no one is safe from a government intent on serving a subpoena, even if it has to kill you to do it. It was our introduction to the Clinton administration, but no one would have guessed that a conservative, Republican-controlled government would serve up The Patriot Act that became law on October 25, 2001.

Most members of Congress, all of whom take an oath to protect and defend the Constitution, voted blindly on two pieces of legislation that remain a cause for concern. One was The Patriot Act and the other was the establishment of the Department of Homeland Security. The Patriot Act, more than 300 pages in length, was either written at lightning speed or, perhaps, some version of the bill, by some prescient anticipation of 9-11, was sitting on the shelf in the Department of Justice, waiting for implementation.

I am not a lawyer and I am not trained in the interpretation of law. However, I know the Fourth Amendment of the Constitution says, “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 probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or thing to be seized.”

The Patriot Act, however, permits the government to delay notice of the execution of a warrant to parties under suspicion of “domestic terrorism.” Specifically, in Section 213 it says, “With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result…”

Question? If the government can conduct such an investigation of a suspected terrorist, what protects any citizen from being identified as a terrorist and thus subject to “sneak and peak” surveillance? The Act is so broadly written that nothing protects a citizen with the provisions and intent of the Fourth Amendment. It renders anyone subject to a “sneak and peak” investigation in which all actions, communications, and personal records become fodder for prosecution.

Moving along, we come to SEC. 501: Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations.

“The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.”

The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Since, under the Patriot Act, “an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities” is entirely permissible, it is essential to know exactly how the government defines domestic terrorism. That is found in Section 802 of the Patriot Act.

Domestic Terrorism Defined: Section 2331 of title 18, United States Code, is amended in paragraph (1)(B)(iii), by striking `by assassination or kidnapping' and inserting `by mass destruction, assassination, or kidnapping'; by adding at the end the following: the term `domestic terrorism' means activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.”

Question? If the government, under The Patriot Act, determines what “domestic terrorism” is and is not, what protection is afforded the ordinary citizen when, in fact, any violation of state or federal criminal law deemed dangerous to human life, can be identified as an act of terrorism? The Act allows the federal government to seize the assets of the alleged domestic terrorist without prior notice or a hearing and without filing criminal charges.

Waiting on the shelf is the draft of another “anti-terrorism” legislation called the Domestic Security Enhancement Act of 2003. If enacted, it would, in effect, nullify the Bill of Rights. As it is, The Patriot Act already does a pretty good job of that.

Depending on interpretation, anything dangerous to human life that violates the criminal laws of the United States or any State can be interpreted as terrorism. That, to most people, would seem to be a very broad interpretation, particularly since such acts are already deemed criminal under existing laws.

Under the Constitution, such crimes require that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” with some exceptions involving land or naval forces, militia, or in time of war.  Such people cannot “be compelled” to be a witness against themselves, “nor be deprived of life, liberty, or property, without due process of law…”

If, however, you are arrested and detained, held without bail and unable to contact your family, let alone an attorney, you have no Constitutional protection whatever.

Does the Patriot Act actually provide more protection against terrorism or less in terms of the First, Fourth and Fifth Amendments of the Constitution? If less, doesn’t the Patriot Act actually harm the rights of citizens with its broad definition of terrorism? If this commentary is interpreted to be an act of coercion or intimidation, will the First Amendment protect me?

There are other troublesome aspects of The Patriot Act. Take, for example, Title III, aimed at money laundering. This became part of the Act at the insistence of Democrats that include Senators Daschle and Kerry. The Justice Department has used it to investigate corruption allegations against a Las Vegas strip club owner! This is totally unrelated to any threat of terrorism. In this and other ways, the Act has a vast potential to deprive citizens of constitutional protections that, in effect, no longer exist.

Today, our Department of Homeland Security, combining the Federal Bureau of Investigation, the Central Intelligence Agency, the Immigration and Naturalization Service, and other agencies of law enforcement and intelligence gathering, makes it the single most powerful instrument capable of depriving Americans of the protections afforded by the Constitution’s Bill of Rights.

If the Act is challenged in our courts, the case would surely make its way to the Supreme Court. This is the same Court that recently ruled money donated by citizens to political parties to finance campaigns is a form of speech and that such speech can be restricted. This is an appalling assault on the First Amendment. There is no guarantee the current Supreme Court would safeguard the Bill of Rights.

These are things Americans must think about and which only their elected representatives, having voted blindly for the Act, should amend or repeal. As written, The Patriot Act takes away precious elements of our liberty and privacy. I have yet to see proof it provides any enhanced security. And that’s what we are told it was enacted to do. A piece of legislation, S-1709, the SAFE Act,  by a bipartisan group of US Senators, and a companion bill in the House (HR 3352) has been introduced to insure The Patriot Act does not continue to trample on civil liberties has been introduced. Tell your Senators and Representative to vote for this!

I am not and never will be in favor of depriving Americans of the rights granted to them by the Constitution. That would be the death of freedom in America. History is filled with examples of what happens when citizens are deprived of their freedom. Freedom is not negotiable. You either have it or you don’t.

Alan Caruba is the author of Warning Signs, published by Merril Press. His weekly commentaries are posted on the Internet site of The National Anxiety Center.

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