This morning, a visitor to the website franken.senate.gov will encounter a canned message: “Sorry, the web page you have requested is experiencing technical difficulties.” Senator Al Franken is upgrading his web page from a canned, stand-in version (the one all new senators get) to a new, fully-formed and customized web page. As he warms to his new office, Senator Franken’s web page won’t be the only feature of his term to emerge in customized fashion. Al Franken is building a record of policy performance that will put to the test all the declarations he’s made and opinions he’s offered.

Franken went declaration-first, reading the 4th Amendment to Assistant Attorney General David Kris and asking him in a public hearing how the authorization of wiretaps that name neither the name nor the location of a target can possibly be squared with the constitutional requirement that both the name and the location of a target be specified in order for search and seizure to begin. Senator Franken’s rhetorical position in the September 23, 2009 hearing won him public accolades. But rhetoric does not make policy.

On October 1, 2009 Al Franken had two opportunities to actively, not just verbally, defend the 4th Amendment to the U.S. Constitution. Senator Franken is a member of the Senate Judiciary Committee, which is currently marking up legislation to renew the government’s warrantless surveillance authority for another four years. When Senator Patrick Leahy introduced a new, especially weak version of the reauthorization bill and attempted to declare it adopted by the committee by unanimous consent, Senators Russell Feingold and Richard Durbin interjected and objected to the new language, making committee adoption of the bill non-unanimous. Dick Durbin and Russ Feingold tried to bring the language up for a formal roll-call vote in committee, but they weren’t backed by their fellow Democrats. Al Franken sat quietly during this period. He did not interject. He did not object. He did not back the effort by Senators Feingold and Durbin to reject the weaker language. Thanks to Al Franken’s passive silence at that critical moment, the 4th Amendment took a hit.

Later in the day, Dick Durbin introduced an amendment to restrain Patriot Act powers back to their original intent. The Patriot Act was passed back in 2001 in order to fight the “War On Terror.” We were told the invasions of privacy were necessary to stop the terrorists. But Dick Durbin revealed that 90% of the warrantless Patriot Act searches are in cases having NOTHING to do with terrorism. Durbin’s amendment would have restricted the warrantless use of the Patriot Act to targets who were suspected of either terrorism or spying on America for another country. Here was another chance for Al Franken to defend Americans’ Fourth Amendment rights against unreasonable search and seizure… while leaving the War On Terror untouched! All Franken had to do was vote for the Durbin Amendment.

But do you know what Al Franken did? He voted AGAINST the Durbin Amendment. Think about what that means: Al Franken voted to maintain warrantless surveillance, search and seizure of Americans, their communications and their property… even in cases having nothing whatsoever to do with terrorism!

Twice over on October 1, 2009, Al Franken had the chance to defend Americans’ 4th Amendment rights in deed. But when it came down to it, Al Franken let the 4th Amendment down. Al Franken let Americans’ rights hang in the wind.

Technical difficulties? Those pass. Senator Al Franken is experiencing constitutional difficulties, and those leave a mark.

Call Senator Franken’s DC Office at (202) 224-5641 or his Minnesota Office at (651) 221-1016. Tell him this sort of behavior won’t do. There’s another Judiciary Committee meeting this upcoming Thursday, October 8, and the good provisions of S. 1686 (the JUSTICE Act) will be ignored by the Judiciary majority unless Democrats like Al Franken cosponsor that Act and promote the inclusion of its provisions. Tell Al Franken to get off his duff and defend the 4th Amendment. Tell Al Franken it’s time for him to follow up his pretty words with action.