Posted on 12/28/2003 9:02:32 PM PST by Marianne
On December 13, when U.S. forces captured Saddam Hussein, President George W. Bush not only celebrated with his national security team, but also pulled out his pen and signed into law a bill that grants the FBI sweeping new powers. A White House spokesperson explained the curious timing of the signing - on a Saturday - as "the President signs bills seven days a week." But the last time Bush signed a bill into law on a Saturday happened more than a year ago - on a spending bill that the President needed to sign, to prevent shuttng down the federal government the following Monday.
By signing the bill on the day of Hussein's capture, Bush effectively consigned a dramatic expansion of the USA Patriot Act to a mere footnote. Consequently, while most Americans watched as Hussein was probed for head lice, few were aware that the FBI had just obtained the power to probe their financial records, even if the feds don't suspect their involvement in crime or terrorism.
By signing the bill on the day of Hussein's capture, Bush effectively consigned a dramatic expansion of the USA Patriot Act to a mere footnote. |
Congress passed the legislation around Thanksgiving. Except for U.S. Representative Charlie Gonzalez, all San Antonio's House members voted for the act. The Senate passed it with a voice vote to avoid individual accountability. While broadening the definition of "financial institution," the Bush administration is ramping up provisions within the 2001 USA Patriot Act, which granted the FBI the authority to obtain client records from banks by merely requesting the records in a "National Security Letter." To get the records, the FBI doesn't have to appear before a judge, nor demonstrate "probable cause" - reason to believe that the targeted client is involved in criminal or terrorist activity. Moreover, the National Security Letters are attached with a gag order, preventing any financial institution from informing its clients that their records have been surrendered to the FBI. If a financial institution breaches the gag order, it faces criminal penalties. And finally, the FBI will no longer be required to report to Congress how often they have used the National Security Letters.
Supporters of expanding the Patriot Act claim that the new law is necessary to prevent future terrorist attacks on the U.S. The FBI needs these new powers to be "expeditious and efficient" in its response to these new threats. Robert Summers, professor of international law and director of the new Center for Terrorism Law at St. Mary's University, explains, "We don't go to war with the terrorists as we went to war with the Germans or the North Vietnamese. If we apply old methods of following the money, we will not be successful. We need to meet them on an even playing field to avoid another disaster."
"It's a problem that some of these riders that are added on may not receive the scrutiny that we would like to see." -- Robert Summers |
Opponents claim the FBI already has all the tools to stop crime and terrorism. Moreover, explains Patrick Filyk, an attorney and vice president of the local chapter of the ACLU, "The only thing the act accomplishes is the removal of judicial oversight and the transfer of more power to law enforcements agents."
This broadening of the Patriot Act represents a political victory for the Bush Administration's stealth legislative strategy to increase executive power. Last February, shortly before Bush launched the war on Iraq, the Center for Public Integrity obtained a draft of a comprehensive expansion of the Patriot Act, nicknamed Patriot Act II, written by Attorney General John Ashcroft's staff. Again, the timing was suspicious; it appeared that the Bush Administration was waiting for the start of the Iraq war to introduce Patriot Act II, and then exploit the crisis to ram it through Congress with little public debate.
The leak and ensuing public backlash frustrated the Bush administration's strategy, so Ashcroft and Co. disassembled Patriot Act II, then reassembled its parts into other legislation. By attaching the redefinition of "financial institution" to an Intelligence Authorization Act, the Bush Administration and its Congressional allies avoided public hearings and floor debates for the expansion of the Patriot Act.
Even proponents of this expansion have expressed concern about these legislative tactics. "It's a problem that some of these riders that are added on may not receive the scrutiny that we would like to see," says St. Mary's Professor Robert Summers.
The Bush Administration has yet to answer pivotal questions about its latest constitutional coup: If these new executive powers are necessary to protect United States citizens, then why would the legislation not withstand the test of public debate? If the new act's provisions are in the public interest, why use stealth in ramming them through the legislative process?
In fact, one would have to wonder if it's even consistent with earlier rulings for states to even recognize these cards. These are the same federal courts that would tell a state that it may not deny (generally available) medical benefits to illegals, because to do so would be "regulating immigration" (something allegedly off-limits to them). Yet for a state to set any kind of guidelines for the acceptance of these cards would also, by the same standard, be "regulating immigration".
A warrant is not required for a policeman to search the person of a detainee, or in some other dire circumstances which are not "unreasonable".
You can't just leave "unreasonable" out of the 4th (without Amending the Constitution again) and it is basically on that basis that national security investigations are differentiated from criminal ones by the courts.
I am no lawyer, that's my understanding from "In re: Sealed Case No. 02-001"; haven't seen a ruling on National Security Letters.
There's an obvious conflict here between the president's Article II war powers and the 4th Amendment.
I prefer the FISA method of dealing with the conflict to this National Security Letter method- judicial review is maintained despite the "dire" circumstances.
That the Secret Service needs this power to protect the president from non-foreign threats is not at all clear to me.
What you're talking about is something completely different. All someone in government has to do is claim that there's a "national security" justification, and presto!, everything he does is legal. There is nothing in the Constitution, or the legal framework in which it was written, that allows this legal concept. In fact, it was written with a view to combat that notion.
Now, the 4th amendment wasn't written so that the people conducting the searches would be the ones to decide whether the searches are reasonable. That was the job of judges. How did they communicate this determination to the people doing the searches? By issuing warrants. That's the system that was prescribed, and anything else is a clear departure from it.
But then you repeat that searches without a warrant are unconstitutional.
Courts use the "national security" standard just as it is courts who use the "hot pursuit" and "officer safety" standards for searches. Subsequent judicial reviews are available in all cases, though counterintelligence investigations often don't end up in court.
"National security", being such a vaguely defined term, is not an extenuating circumstance for doing something illegal, unless someone's about to blow something up or something. Government's whole purpose is national security. If that became a reason to disobey the law, then law simply doesn't apply to government. I don't know what the specific logician's term for it is, but you're employing a logical device that essentially destroys the foundations on which it is based.
One would have to be charged by the Executive branch that is supposed to uphold the laws.
Source:
Statement by the President
For Immediate Release
Office of the Press Secretary
The White House
December 13, 2003
Section 106 enacts by reference certain requirements set forth in the joint explanatory statement of the House-Senate committee of conference or in a classified annex. The executive branch continues to discourage this practice of enacting secret laws and encourages instead appropriate non-binding uses of classified schedules of authorizations, classified annexes to committee reports, and joint statements of managers that accompany the final legislation.
It appears that there was much about this bill that the President didn't care for, but, he signed it anyway.
It will be interesting to see how the Supremeos rule when his objections are contested.
I'll guess that he hopes the Executive branch does better than We the People did with the 30/60 day provisions of CFR.
Probably..... Just like the 1994 Brady Bill/Law re firearms.
This is why it would be MUCH MUCH better to declare a state of emergency and explicitly suspend Constitutional rights for a limited time.
We have been operating under a permanent state of emergency since WWII. The government has literally given itself the power to ignore the Constitution whenever it pleases on an ongoing, periodically renewed basis. As a result, the Patriot Act is just the most recent horror is a series of horrors that has eroded Consitutional protections.
Conservative like me are not "hysterical" about the Patriot Act. We are well aware it is only an "incremental change." But it is an incremental change in the wrong direction on top of a pile of previous assaults on the Constitution.
"So what?" the jackboot lickers will no doubt ask. Well, this is what: You can count me and my children OUT of any effort to fight for a nation that has abandoned its Consitution. Call me when it is restored. Until then, Ashcroft, Ridge and the rest can go to hell. It is not the "act" of a "Patriot" to support the further destruction of our Constitution.
Is mine an isolated case of disillusionment? Ask a recruiter. The armed foreces are in DEEP recruiting trouble.
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