Congressmen Say 'Anti-Terrorism' Provisions Unconstitutional

Four representatives and one senator voted against the "anti-terrorism bill" signed into law by President Bush Oct. 26, but what is potentially more noteworthy than the fact that only five members of Congress voted against the bill, is which five members cast those votes and why.

Rep. Ron Paul (R-Texas) has a lifetime rating of 87 (out of 100) from the American Conservative Union (ACU), and identifies himself as a "strict constructionist" when it comes to debates over the Constitution. He says he voted against the bill for one simple reason.

"I am convinced that it was unconstitutional," said Paul. "There was no doubt in my mind it was a violation of civil liberties and constitutional protections of privacy, and I strongly opposed it."

Conversely, Rep. Bernard Sanders (I-Vt.) is a member of the Congressional Progressive Caucus, a group affiliated with the ultra-liberal Democratic Socialists of America. He also believes the bill violates the Constitution. "I took an oath to support and defend the Constitution of the United States and I am concerned that voting for this legislation would fundamentally violate that oath," Sanders said in a written statement Monday.

"There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be legitimate threats to our national security including McCarthyism, the Alien and Sedition Act and the imprisonment of Japanese-Americans during World War II," he said.

Other members of the House voting against H.R. 3162, the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" or USA PATRIOT Act, included Rep. Bob Ney (R-Ohio), who has an ACU rating of 81.

Rep. C.L. "Butch" Otter (R-Idaho) also voted against both the original bill and the compromise version passed by the Senate. "This is too broad a distribution of authority and power," Otter told CNSNews.com. "Unfortunately, the ones who are going to get hurt the worst in this are the law-abiding citizens."

In the Senate, the lone opponent of the proposal was Russ Feingold (D-Wis.) whose record sharply contrasts those of the three conservative Republicans who voted against the bill with Independent Bernard Sanders in the House.

Feingold's ACU lifetime rating is 10, having only voted with the ACU four times in his ten years in the Senate. He serves as chairman of the Constitution Subcommittee of the Senate Judiciary Committee.

"The Founders ... wrote a Constitution of limited powers and an explicit Bill of Rights to protect liberty in times of war, as well as in times of peace," Feingold said on the Senate floor the day the bill passed. "Preserving our freedom is one of the main reasons that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people," he said. Each of the men has their particular apprehensions about the law, but they share these areas of concern:

Section 203, "Authority to Share Criminal Investigative Information" adds five new exceptions to the secrecy of grand jury testimony, including release, "when the matters involve foreign intelligence or counterintelligence ... or foreign intelligence information ... to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official..."

The men stress that this provision puts foreign intelligence-gathering agencies in a law enforcement role. They also warn that there are no restrictions on who intelligence agencies may share information with, and no limitations on what methods they may use, on behalf of law enforcement, to gather information outside U.S. borders.

Section 213, "Authority for Delaying Notice of the Execution of a Warrant" allows law enforcement officials to search property without the owner present, and without notification that the search has taken place; the so-called "sneak-and-peek" search warrants.

Law enforcement officials need only convince the court that notifying an occupant might have an "adverse result." The law requires that "the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown."

Notice of a search, opponents say, is the only opportunity a property owner or occupant has to challenge the validity of a warrant. Once the search has been conducted, proving that authorities searched at the wrong address, or looked in areas they were not authorized to search is irrelevant do to rules concerning illegal evidence obtained in "good faith."

Section 206, "Roving Surveillance Authority Under the Foreign Intelligence Surveillance Act of 1978" would allow the government to use roving wiretaps of suspected criminals and to continue surveillance of individuals other than the suspect over any communications devices used by the suspect.

The Fourth Amendment requires that a warrant contain information "particularly describing the place to be searched and the person or things to be seized." That requirement cannot be fulfilled, critics say, if authorities are given "blanket authority" to conduct roving surveillance without judicial scrutiny.

Section 215, "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations" give law enforcement entities, including the Central Intelligence and National Security Agencies, the authority to "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."

This provision allows law enforcement and intelligence officials to access virtually any personal or private record kept by any business entity regarding the target of an investigation, including medical, educational, and financial records. Opponents say this is a resurrection of the "Know Your Customer" proposal rejected by Congress last year, with even broader applications.

Section 219, "Single Jurisdiction Search Warrants for Terrorism" and Section 220, "Nationwide Service of Search Warrants" allow search warrants to be issued "in an investigation of domestic terrorism or international terrorism ... by a Federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside the district ... without geographic limitation."

Critics say the intervention of local judges is necessary to prevent local habits and customs from being wrongly used as probable cause for a warrant. As an example, they cite the fact that carrying certain explosive chemicals through Washington, D.C., might immediately arouse the suspicion of a judge and justify the issuance of a warrant.

But an application for a search warrant based on someone carrying those same chemicals through a rural farm community, where they are regularly used as fertilizers, would be immediately dismissed by a judge from the area who should be aware of such uses.

Paul says the legislation, "sacrifices too many of our constitutional liberties and will not even effectively address the terrorist menace." "Congress will fulfill its duty only when it protects both the American people and the freedoms at the foundation of American society," said Feingold.

"When we give the government the right to limit our civil liberties it must be carefully and narrowly defined because once given, those powers are nearly impossible to take back," Otter said. "We must not allow the first non-human casualty in the war against terrorism to be our civil rights."

This is an interesting mix of people; I'm going to file this until the next vote on gun control comes up in Congress and stick it right in Feingold's and Sander's faces. I know how Ron Paul votes on 2A issues.

It seems whenever I see the Patriot Act appear on FR, the overwhelming response to contradicting it is "negative". I am confused... I've read a considerable portion of the Patriot Act -- it's a long bugger -- and the potential I see for abuse in it is staggering. I would have thought the conservative nature of the average FReeper would make for a pretty one-sided argument against the Patriot Act in this forum. It appears I am mistaken. Could someone please explain this to me? Why does the average FReeper support the Patriot Act?

Also included in this unconstitutional disaster is a section that calls for all businesses to report to the fed.gov any transaction over $10,000 where the customer paid cash. This reporting requirement was formerly limited to financial institutions (also unconstitutional).

Amazing.

Not only is this irrelevant to the "WOT" (the 9/11 folks used credit cards), it serves to further 'criminalize' an individuals right to use cash.

"Patriot" Act my ass.

For those that haven’t seen them:

H.R.3162 PATRIOT ACT{ YOUR NEW- POLICESTATE- LOOK FOR YOUR SELF}

THE “PATRIOT” ACT???

THE DEFINITION OF “DOMESTIC TERRORISM”

Although I consider myself a staunch conservative, I often wonder if liberals differ from conservatives only in what human behaviors they want to control/outlaw.

That is exactly what I see, 45Auto.

That is why I no longer consider myself a "staunch conservative."

I find myself labeled a "liberal" by conservatives and a "conservative" by liberals -- because I hold the viewpoint that we shouldn't regulate any behaviors that do not involve the initiation of force or fraud against another.

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