During times like these, we earn a better understanding of the wisdom behind the creation of the US Constitution and the Bill of Rights.
The founders of the US wrote the framework of the government so that the US Constitution remains above all laws and all leaders. Not even the president is above the Constitution -- to paraphrase what was once said of the king of England and the Magna Carta.
The Bill of Rights was created to ensure individual liberties could not be trampled by a panicky Congress passing repressive laws or by a runaway presidency demanding more federal police power.
In a climate of fear caused by the Sept. 11 terrorist attacks, members of Congress passed a lengthy piece of legislation most had not read and certainly had not debated publicly, the USA Patriot Act of 2001. The act has granted unprecedented policing powers to the federal government. In doing so, it has undermined the delicate balance between liberty and federal authority intended by the Bill of Rights.
However, the rights granted by the US Constitution and the Bill of Rights are not self-executing. They don't immediately trump unconstitutional government actions. The federal court system is the arena where individual liberties must contest against governmental acts.
The federal courts have the grave task of attempting to maintain a constitutional balance between freedom and authority. It is their duty to check the power of an executive branch that has extended its power beyond constitutional limits. It is their duty to overturn laws that violate fundamental rights.
Judiciary targeted
It shouldn't be a surprise, then, that the Bush administration has sought legislation to restrict the role of the judiciary.
What right is more fundamental to an American citizen than the right to an attorney when arrested and imprisoned? What is more fundamental than the right of an accused to have an impartial judge hear the government's case against him? What is more fundamental than the right of a trial by jury? The Department of Justice, under this administration, has argued that some defendants do not have these rights.
Earlier this month, President George W. Bush asked for even greater federal police power than granted by the Patriot Act. And true to form, some members of Congress leaped to introduce legislation to expand federal police powers in precisely the areas the president requested: administrative subpoenas, pretrial detention and greater range of federal death sentences.
On Sept. 9, Representative Tom Feeney, a Republican, introduced the Antiterrorism Tools Enhancement Act (HR 3037), which would give the US attorney general the authority to issue administrative subpoenas in any terrorism investigations. Such subpoenas do not need to be signed by a judge, nor do they have to be authorized by a grand jury.
The administrative subpoenas can "compel the attendance and testimony of witnesses, and require the production of any records (including books, papers, documents, electronic data, and other tangible things that constitute or contain evidence)" the attorney general finds relevant to a terrorism investigation. This subpoena power would be authorized in any state, territory or jurisdiction of the US.
keeping quiet
Under the Feeney bill, those issued a subpoena for records or testimony may be forced to remain silent about the subpoena, if the attorney general certifies that disclosure may result in a danger to national security.
This power to search and seize records does not have to meet a probable cause standard -- as constitutionally required by a valid search warrant. An impartial judge, the traditional check on police power to search and seize, is eliminated from the equation. The Fourth Amendment's protection against unreasonable searches and seizures would be lost if the Feeney bill becomes law.
Also on Sept. 9, Representative Bob Goodlatte, a Republican, introduced the Pretrial Detention and Lifetime Supervision of Terrorists Act (HR 3040), which, if passed, would deny bail to anyone accused of domestic or international terrorism. And the definition of domestic terrorism is broad enough to include legitimate demonstrations that suddenly, through no fault of the organizers, turn violent. Goodlatte's bill ignores the right of bail as granted by the Eighth Amendment.
On Sept. 10, Senator Arlen Specter, also a Republican, introduced the Terrorist Penalties Enhancement Act (S 1604). This bill authorizes the death penalty for any act of domestic or international terrorism that results in the death of a person. Specter's bill reeks of bad timing. Many states are currently re-evaluating their death penalty statutes. A significant number of death row inmates around the country have been released because their convictions relied on faulty or manufactured evidence. No one knows how many innocent prison inmates have been executed.
`hystericals'
Meanwhile, US Attorney General John Ashcroft attacked librarians, calling them "hysterics" for being critical of Section 215 of the Patriot Act. This provision of the Patriot Act allows the federal government to obtain the borrowing or purchase records of libraries, bookstores and their patrons.
On Sept. 19, Ashcroft told an audience of police officers and prosecutors in Memphis, Tennessee, that Section 215 has never been used to seek library or bookstore records.
However, in March, Justice Department spokesman Mark Corallo said libraries had become a logical target of surveillance.
And a previous Freedom of Information Act request concerning the number of times the records of libraries and bookstores have been obtained by the Justice Department was denied as classified.
Then in May, Assistant Attorney General Viet Dinh said an informal survey of FBI field offices found that agents had contacted libraries about 50 times, but usually the inquiries were related to criminal investigations.
In October last year, the Library Research Center at the University of Illinois conducted its own survey, asking how many libraries had received visits from the FBI. Nearly 180 libraries claimed they had received visits from the FBI but did not disclose whether the visits were authorized by the Patriot Act.
Section 215 of the Patriot Act wrongly allows the Justice Department to search the reading records of American citizens.
If Section 215 hasn't been used yet, as Ashcroft alleges, perhaps it isn't necessary. Seeking a warrant for those records via the Fourth Amendment instead of through a secret court would be a better way to protect the public from an overzealous government -- and from terrorists.
Charles Levendosky is the editor of the Casper, Wyoming Star-Tribune and has a national reputation for Bill of Rights commentary.
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