As chair of the Senate Judiciary Committee, Senator Patrick Leahy has a special responsibility to critically examine the Executive Branch’s law enforcement activities, and to limit those activities so that they are in accordance with the demands of the Constitution of the United States of America. It’s the job of the chair of the Judiciary Committee to be a voice in defense of liberty when the Executive seeks to expand its power in inappropriate ways. In the last few weeks, Senator Leahy has failed in that duty, and has become a voice of fear instead of freedom.
The issue at stake is the second renewal of the Patriot Act, a law that was supposed to expire four years ago, given that its powers were only intended to be used during a period of what was perceived as a grave national emergency. The Patriot Act enabled the creation of an unprecedented set of surveillance tools that the federal government could use to conduct surveillance not just against terrorists, but against nearly the entire society of the USA.
The passage of the Patriot Act triggered the development of massive data mining operations in which government spy agencies grabbed huge databases containing private information about all sorts of personal details from Americans’ lives – information telling where we shop, who we talk to on the telephone, when and where we go online, our medical conditions, our financial transactions, even about our physical movements within the United States. The Patriot Act was the first in a series of new laws that attacked the Constitution, and created a surveillance state that even George Orwell’s Big Brother could not rival.
These new government searches have seized the personal information, the “papers” in legal terminology, of millions of Americans who were never ever suspected of any crime, much less any connection to terrorism. In fact, almost all of the government’s use of the Patriot Act has nothing at all to do with suspected terrorist plots. Last year, for example, the Patriot Act’s sneak-and-peek powers were used in connection with investigations of alleged terrorist conspiracies only 0.39 percent of the time. You read that right – not 39 percent of the time, but less than four tenths of one percent of the time.
These activities are clearly in violation of the Fourth Amendment to the Constitution, in the Bill of Rights, which states that searches and seizures can only be conducted against specific targets at specific times against people whom the government has probable cause to believe are involved in particular criminal activity. The Patriot Act data mining seizures thoroughly fail the test of the Fourth Amendment, given that they’re not against specific targets, they’re done over long periods of time, and there’s no probable cause to believe that most, if any, of the people whose private papers are seized are connected in any way to any crime.
Yet, Senator Patrick Leahy has authored a bill, S. 1692, to renew the Patriot Act once again, and without bringing the law into compliance with the strict requirements of the Fourth Amendment. Leahy has even voted against an attempt to amend S. 1692 in order to provide the basic guarantee that seizures of private papers under the Patriot Act Section 215 could only take place in order to protect Americans from foreign spies, in direct connection to a terrorist investigation, or as part of an investigation that targets people living outside the borders of the United States.
Why would Leahy vote against such reasonable protections of Americans’ constitutional rights? His justification: Americans are afraid, and their fears override the Constitution. He warns that “threats against American safety are real”, without actually identifying any specific threats, and saying that he believes there must be “balances” between the security interests of the state and the constitutional rights of the American people.
That’s not how the Constitution of the United States is structured. Yes, the federal government has the responsibility to provide security, but that security must be provided within the restrictions established by the Fourth Amendment. The Constitution does not include provisions for “balances” to limit the rights created by the Fourth Amendment. It clearly provides the Fourth Amendment as a certain guarantee to the people of the United States.
There’s a reason the Constitution was written in that way. The first generation of US citizens had plenty of experience with the way that unscrupulous leaders could exploit fears about security to impose tyrannical abuses against the people. Those sorts of abuses, given the power of today’s surveillance technologies, are more important to protect against, absolutely, than ever before.