The jury convicted the Congressman and the judge sentenced Lyon to a $1,000 fine and four months in jail. It can be said that Lyon got the last laugh, however, as he was reelected while in prison! The Sedition Act proved to be a disaster for the Federalists politically, as the nation elected a Democratic-Republican by the name of Thomas Jefferson as our third president.
The United States also suppressed the freedom of speech during both the Civil War and World War I. During the Civil War, the Union as well as the Confederacy suppressed opposition newspapers and jailed critics.3 During World War I, the government passed laws, such as the Espionage Act of 1917, and the Sedition Act of 1918, which criminalized public criticism of the war. German-Americans, labor leaders, and socialists were also subject to government persecution. Moreover, during the Red Scare that followed the Great War, thousands of radicals were arrested, and many aliens were deported.
The Oxymoron of the “Secret” Court of Justice
Following the uproar surrounding the Alien and Sedition Acts, Presidents tended to avoid any public scrutiny of their unconstitutional actions. Rather than attempting to pass unconstitutional laws so that their actions would appear to be legal, some were reckless enough to impair the civil liberties of the people without their knowledge and without the need of Congressional approval and therefore criticisms. Presidents Kennedy and Lyndon B. Johnson routinely wiretapped the telephone calls of those they feared, without search warrants. The most famous example of such action was in the form of President Richard Nixon and the wiretapping of almost anyone of import in Washington, DC. Then he got caught, and his Presidency came to a crashing halt. The permanently upsetting result of JFK’s, LBJ’s, and Nixon’s chicanery is that these illegal actions led to the passage of one of the most intrusive laws in America, the Foreign Intelligence Surveillance Act of 1978, better known as FISA.
The stated purpose of the Act was to protect the citizens of the United States from wiretapping, and it attempted to do this by requiring warrants for any wiretaps. But the warrants were no ordinary warrants from the courts established under the Constitution. Instead, FISA created a new court authorized to approve these wiretap warrants, both the applications for which and orders from would be “maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of Central Intelligence.”4 So, the secret court was created to review secret applications and issue secret decisions. And this was supposed to protect the liberties of the citizens of the United States.
Also, the Act was supposed to be limited to foreign powers and agents of foreign powers, and the primary purpose was to gather foreign intelligence. Well, at least that is how the government sold it, claiming it would protect American citizens from JFK/LBJ/Nixon-like warrantless wiretapping, which would now only be used against foreigners. And it was supposed to provide judicial oversight of the federal government’s surveillance activities while maintaining the confidential nature needed to ensure national security.
The emphasis on oversight and protection of liberties was somewhat tenuous considering that the Act permitted surveillance in the United States without a court order for one year unless the “surveillance will acquire the contents of any communication to which a United States person is a party.”5 When an American citizen was to be involved, then the government was required to obtain judicial authorization within seventy-two hours after the start of surveillance.
So, not only does the Act purport to give the government permission to initiate surveillance against an American citizen without a court order for three days, but once they start surveillance, government agents are not required to provide any federal district court with probable cause of a crime, as the Fourth Amendment requires. Rather, all that is required is that the government go to this secret court and explain that it suspected the American citizen of being involved with a foreigner in potential espionage. The court, which was not required to disclose its records and which would never be open to public scrutiny, was a rubber stamp; a rubber stamp that, between the years of 1979 to 2007, rejected only nine of the 25,361 warrant applications submitted to it.6
Aside from the secrecy granted these FISA courts, the ease with which warrants were granted also stemmed from the much lower threshold for proof that FISA required. Rather than, as in a typical warrant, containing a requirement of probable cause to believe that the target possesses evidence of a crime, FISA only requires that there be probable cause to believe that the target is an agent of a foreign power and that the place where the surveillance will be taking place is being used by the foreign power. This means that the only thing the government needs to show is probable cause that the target of the surveillance is foreign, not that there is evidence to induce a judicial conclusion that the target is involved in any activity which could be a threat to national security.
The Act also provided the same requirements for physical as well as electronic surveillance. If the requirements for a criminal case were based on FISA, this would mean that if the police wanted to search your house because they suspected you of criminal conduct, all that the officers would have to establish is that there was probable cause to believe that you were you and your house was your house. It would not even have to be certain, just probable, that they were right. Yet somehow, the federal government in the administration of President Jimmy Carter successfully sold the idea to the country that the Act would protect liberties and ensure privacy. And we believed it because of the Cold War, because of the fear of the Soviet Union, because we wanted to be safe, and because we wanted to believe that the government could protect us. We forgot about the right to be left alone.
Good-bye Liberty, Hello Tyranny
While the Sedition Acts and FISA claimed to protect Americans and provide us with both liberty and security, they were just the prologue to our current debacle. And it all began, as do most roads to tyranny, with a terrible disaster, a horrible action that spawned the government-hoped-for reaction. On September 11th 2001, New York City, Washington, D.C., and Shankville, Pennsylvania, were the scenes of one of the most horrific tragedies of our history. We were attacked by those who resented our presence in their countries and while our country stood still, sadness and shock emanating throughout, the federal government chose to help terrorists cause more American suffering by diminishing the liberty that makes America so great. The Bush Administration, within only weeks of the tragedy, had drafted the Patriot Act of 2001.
The Patriot Act sailed through Congress with little opposition. It was a well-contrived acronym that inspired visions of the Founding Fathers fighting for freedom. And so nobody seemed to notice or care that it actually takes from the people each of the cherished freedoms for which so many fought and died. The Act tramples the constitutional rights of law-abiding American citizens by snooping into their private communications and personal records. It also expands the power of federal agencies, allowing searches and seizures without a warrant and without any probable cause. It allows for the detainment of people without lawyers for indefinite periods, often solely on the baseless suspicions of one or another federal agent. And it can do all this in secret, without public or judicial scrutiny.
Sadly, considering the constitutional impact of the Patriot Act, one would think that Congress would have spent a little more time debating its various provisions. And maybe it would have, if any congressperson had bothered to read it and consider the implications. But while claiming to be working for the people and asserting that it protects us from unconstitutional laws, Congress did not fight it even a little.
The Patriot Act was introduced on October 23rd and in two days passed both the House and the Senate and was signed into law on October 26th. Considering that the Act was 342 pages in very small print, it was amazing that it took less than two days for most to read it. The more amazing thing was that later most of Congress admitted never having read the Act. Our representatives passed a law that they failed to read, a law that was draf
ted by the top law enforcement agency, the Department of Justice. Apparently, Congress would like us to believe that it did not need to read the law it was approving, because it assumed that the top law enforcement agency would never attempt to increase its influence or power.
Probable Farce
Most of the Patriot Act amended preexisting laws, one of them being FISA. With its amendments, the Act quickly and easily rid FISA of the few protections it contained against total government interference in our personal liberties. Prior to the amendment, the FISA secret courts could only grant a warrant when the “primary purpose” of the search was to gather intelligence from foreign powers. Now, the secret courts can grant warrants when the purpose of foreign intelligence gathering is a “significant purpose”7 of the surveillance. And “foreign power” was amended to “foreign person.” Never mind that the Constitution protects the liberties of all persons, citizens and aliens, domestic and foreign, residents and strangers, saints and thugs; the Patriot Act purports to change that.
So anyone who the government decides might at some point yield information that will link the government to foreign intelligence can be snooped on, without their knowledge, and without even a shred of evidence to link them to criminal activity. The best part is that if any evidence of criminal activity not linked to foreign intelligence is discovered during these fishing expeditions, the government must pass that information on to another agency permitted to use it in criminal prosecution.8
Basically, if the federal government is wrong, and you have absolutely no connection to any foreign power, at least the resources are not wasted if they can find some other criminal activity to pin on you; too bad for your constitutional rights. Even if we believe that it is only the so-called War on Terror that is keeping us safe, we cannot keep letting the government tell us that it is okay for us to give up the Constitution in exchange for the promise of security.
The Supreme Court held in the case of Texas v. Stanford (1965) that the government may not constitutionally issue general warrants that do not describe with particularity the place to be searched or the things to be seized.9 This requirement of specificity is an inherent part of the Fourth Amendment and protects against fishing expeditions by the local or state police or federal agents. Or at least it did, until a section of the Patriot Act amended FISA to authorize roving wiretaps. Roving wiretaps are in essence warrants that are not required to specify each common carrier or third party involved in the court order. The roving wiretaps allow for taps on a multitude of computers or telephones, rather than requiring that the secret court “warrant” specify the computer or telephone.10 So, the government can request that all of the computers at the New York Public Library be put under surveillance, and that would be more than specific enough for the FISA “court.”
Another tragic aspect of the Patriot Act is that it grants federal judges powers outside their geographic jurisdictions and permits them to authorize wiretaps on a national level.11 How can judges have power in geographic areas where they do not sit and thus do not have lawful jurisdiction? The whole purpose of geographic jurisdiction (a federal judge in Newark generally lacks jurisdiction over persons in Los Angeles) is to facilitate access to courts. If the judge in Newark authorizes a wiretap in Los Angeles, should the targets of the wiretap need to travel three thousand miles to challenge it? No; before the Patriot Act. Yes; since it became law.
Sneaking Away from Liberty
As if the almost complete reduction of a probable cause requirement were not enough, the new secret court FISA warrants also breach another constitutional requirement, that of notice. Fourth Amendment jurisprudence has had a long-standing practice of serving the warrant before a search could begin. The notice requirement ensured that an innocent person could look over the warrant and point out any mistakes so that wrong houses were not searched as well as assuring that only those things that were permitted to be searched were searched and the police did not expand their boundaries. The Patriot Act changes that, permitting the government to avoid notifying the owner for a month after the search, through showing only that there is “reasonable cause to believe” that notice could potentially “seriously jeopardize an investigation.”12
These are called sneak-and-peak warrants, and the Patriot Act is the first “express statutory authorization” for this type of warrant.13 The Patriot Act requirement in essence then dismisses notice without a second thought, as any four-year-old could come up with a reason that giving notice to a criminal suspect could maybe put the investigation in jeopardy.
A federal district court judge once warned that sneak-and-peek warrants “constitute . . . a dangerous and radical threat to civil rights and to the security of all our homes and persons.”14 This was in 1986, when sneak-and-peek warrants were only permitted by the courts in limited and distinct situations where the danger was extreme, palpable, and imminent. With the changes made by the Patriot Act, sneak-and-peak warrants will soon become standard issue. And because the records for these FISA court warrants are confidential, the public cannot scrutinize them. Even when the ACLU sued under the Freedom of Information Act to compel the federal government to reveal statistical information with regard to various Patriot Act provisions, including sneak-and peek-warrants, the court held that such information could be withheld on the grounds of national security.15
And it was on grounds of that ever-comforting phrase, national security, that an American attorney was detained for over two weeks by the federal government by mistake. Brandon Mayfield was an attorney who performed pro bono work with the Modest Means Program, which provided attorneys at reduced-rates for low-income clients. Brandon had had the misfortune to fall in love and marry an Egyptian woman, and, thereafter, he converted to Islam. Life was going well, and the happy couple had three children.
Then disaster struck when the federal government made a giant mistake and thought it matched the fingerprints found on a backpack in the rubble of the 2004 Madrid train bombing to Brandon. After the FBI authorized itself to enter his house and wiretap his phones, he was arrested on a material witness warrant, all based on a faulty fingerprint match whose accuracy the FBI lied about.
Brandon was held for two weeks, without access to his family and only limited access to an attorney. Only when multiple efforts by Spanish authorities to alert the FBI that they did not think the fingerprints were Brandon’s did he get his day in court, where the case against him was dismissed. The FBI apologized for its mistake but never admitted to any misuse of the Patriot Act. Brandon filed a lawsuit, and U.S. District Judge Ann Aiken in Eugene, Oregon, held that certain provisions of the Act were unconstitutional. The federal government has of course appealed and continues to enforce the provisions found unconstitutional.
National Security Letters:
The New Judge-Proof Warrant
How did the FBI bypass the Fourth Amendment to the Constitution its agents swore to uphold and authorize itself to break into Brandon Mayfield’s home and wiretap his telephones and eventually arrest him based on a lie? Well, another aspect of the Patriot Act that has been horrific in application is the National Security Letter or NSL. Though it may not sound threatening, the NSL is in essence a search warrant, but one that requires no probable cause or judicial oversight and that allows for any federal agent to request any and all of your personal records.16 Prior to the enactment of the Patriot Act, NSLs were only authorized to be used to investigate those suspected of being spies and had to be issued by very senior officials. Now almost every federal agent can use them against aliens and citizens alike without showing probable cause of crime to a federal district judge and without showing probable cause to believe that the target is suspicious and a foreigner to the secret FISA court.
It does not matter whether the target of the NSL has ever even been suspected of terrorist or simply criminal activity. So think about the people you have lived next door to, attended school with, worked with or in any other way met for any period of time. If any one
of those people have since then been—whether wrongfully or rightfully—considered a suspicious foreigner by a single federal agent, which might even be a question of donating money to a foreign charity, then you can be the next target of an NSL.
Now originally, National Security Letters were only to be used to obtain information from financial institutions, like banks and credit unions. Those institutions were required to provide financial data in order to aid federal agencies in gathering information to prevent terrorism. And, of course, originally these records would be provided without a warrant, only for those who were the target of a terrorism investigation. Then the Patriot Act amended this and allowed these to be the financial records of someone “sought for” a terrorism investigation, meaning that anyone who the government decides is worth investigating can be investigated, and the government can get records without a constitutional search warrant. And, of course, the Bush administration stressed that there was nothing to worry about, that this involved only financial institutions and would not affect the average American citizen.
But Republicans who ran the Congress in 2003 were not finished and decided to enact the Intelligence Authorization Act for the Fiscal Year 2004. This type of Act is passed every year and typically involves budgeting decisions for the coming year. President Bush signed this version of the Act into law on December 13th 2003, with no public notice, as it was “coincidentally” signed the same day that news of Saddam Hussein’s capture was made public.17 Unfortunately for the American people, one section of this Act amended the definition of “financial institution” in the Right to Financial Privacy Act of 1978. The definition of “financial institution” as amended includes pawnbrokers, jewelry stores, car dealers, casinos, travel agents, physicians, health care officials, lawyers, and finally “any business . . . which engages in any activity which the Secretary of Treasury determines . . . to be an activity which is similar to . . . any business described in this paragraph is authorized to engage,”18 and that great financial institution to which we would all “eagerly” repose our savings, the U.S. Post Office.
Lies the government told you Page 29
