Two days ago, I testified before a subcommittee of the House of Representatives Judiciary Committee. The topic was the USA PATRIOT Act; and specifically, provisions of the law set to expire at the end of this month. The most problematic of these provisions allows the government to gain access to a person’s private records and other “things,” in the hands of a third party, if sought for an investigation involving terrorism or foreign intelligence. This would include, for example, a person’s medical records, financial records, school records, business records, travel records, etc.
Currently, under the PATRIOT Act, the government can access this private information or other items, without any showing whatsoever that there is a suspicion (much less, “probable cause”) that the person whose privacy the government seeks to violate, has committed any offense or is associated in any way with a suspected terrorist or even an associate of a known or suspected terrorist.
Among the other powers that will be sun-setted unless Congress re-authorizes them, is the ability currently enjoyed by the government to secure so-called “roving” wiretaps on phones without even having to provide either the name of the person to be electronically surveilled or the precise location of the phone(s) to be tapped. Such “John Doe” roving wiretaps could subject entirely innocent third parties to having their phone(s) surveilled.
My testimony was essentially to either: (1) permit the three sun-setted provisions to expire because they are not essential to the government’s ability to investigate, uncover and prosecute allegations of terrorist activity; or (2) at least limit them to bring them into accord with the Constitution. This would mean simply requiring the government to show minimal evidence that there is at least some suspected link between the person against whom the government is seeking to access private information, and suspected unlawful activity or association with a terrorist or terrorist organization (or a suspected such person or organization).
Predictably, the Republican members on the subcommittee present at the hearing indicated no willingness whatsoever to place any limitations at all on these expansive and, I believe, unconstitutional provisions of the PATRIOT Act, that permit the government to violate a citizen’s privacy and gain access to possibly their most private of records, by doing nothing more than telling a judge that the government needs the information because it is “relevant” to some investigation.
Many Members of Congress talk a good game of supporting civil liberties, our right to privacy, and the Constitution itself; but they are more than willing to allow those liberties to be trumped in the name of “fighting terrorism.” To them, there is a footnote to the Constitution and the Bill of Rights that says those limitations on government power do not apply if the government says it is “fighting terrorism.”
It is funny though – no copy of the Constitution I have been able to find includes such a footnote.
By Bob Barr – The Barr Code