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Patriots Should Worry More about Freedom at Home

True Patriots Should Worry More about Freedom at Home

By Ivan Eland*
May 9, 2005

President George W. Bush claims that he is spreading freedom throughout the world. However, for him “freedom” appears to be more a slogan, devoid of content and used to harness U.S. nationalism for his own purposes. Freedom meant much more to the Founders of the American republic. They would be appalled at the president’s crusade to impose democracy abroad and its resulting, but unnecessary, erosion of liberties at home. Bush’s attempts to renew expiring USA PATRIOT Act provisions, which were supposed to be a temporary enhancement of government police powers in the wake of 9/11, show his shallow commitment to freedom where it is needed most—here at home.

President Bush’s State Department is now suppressing statistics that support the conclusion that his reckless invasion of Muslim Iraq has dramatically increased the number of significant terrorist attacks in the world. Any future retaliatory terrorist attacks in the United States could make renewal of the PATRIOT Act, or an even more severe crackdown on civil liberties, a slam dunk.

During passage of the Act, the Executive Branch’s law enforcement bureaucracies used the 9/11 attacks to broadly enhance their powers of search and surveillance for investigations unrelated to terrorism. Also, the Act eroded the checks and balances enshrined in the Constitution by limiting traditional judicial review of Executive Branch search warrants.

In the wake of the post-9/11 hysteria that pressured Congress to show progress in “doing something” to prevent a future attack, the legislature got cold feet and required especially draconian provisions of the Act to sunset at the end of 2005. Yet the “freedom loving” Bush administration is busily lobbying Congress to make those provisions permanent.

The most pernicious PATRIOT Act provision up for renewal is section 215. Originally, the Foreign Intelligence Surveillance Act (FISA) of 1978 set up a secret court to approve Executive Branch search warrants in espionage and terrorism cases. The clandestine court, unlike other courts, never notifies people that the government was spying on them, hears only the government’s arguments, and publishes no information about its activities or the warrants approved or denied. Apparently, the FISA court has rejected only a few government requests for such warrants. The reasoning behind creation of the clandestine court was that a lower standard of evidence should apply in intelligence cases. (No matter that secret courts in a free republic are questionable at best and that the Constitution’s Fourth Amendment requires that government search warrants, without exception, be issued only on the high legal standard of probable cause that a crime has been committed.)

Before the PATRIOT Act, the FBI had to provide “specific and articulable facts giving reason to believe that the person to whom the records pertained” was a spy or terrorist and convince the FISA court to issue the clandestine warrant. Unless allowed to sunset, the PATRIOT Act allows the FBI to obtain a secret search warrant without demonstrating such facts and instead merely requires the agency to certify that the records are sought for a terrorism or espionage investigation. Upon FBI certification, the court must then issue the order, even if no facts are provided. In short, this provision of the PATRIOT Act eliminates the check of judicial review on the FBI.

Thus, the FBI can investigate anybody without “probable cause”—that is, citizens not suspected of crimes—and without having to show that the subject’s records are relevant to an investigation. In other words, the lower legal standards for intelligence collection of the secret court can now be applied to criminal investigations other than those for terrorism or espionage, further undermining the Constitution’s guarantee of a “probable cause” standard for search warrants.

The Executive Branch is using its expanded investigative authority zealously. According to the Electronic Frontier Foundation, government records show that the FISA court is secretly authorizing more surveillance than all other federal courts put together.

Section 215 is only one of many severe restrictions on civil liberties contained in the PATRIOT Act. For example, other provisions of the law—such as roving wiretaps and national, instead of local, jurisdiction for warrants for electronic evidence—appear to erode Fourth Amendment requirements that warrants specifically describe persons, places, and things to be searched. Not only should the sunset provisions of the Act be put to rest, Congress should repeal the entire law.

The purported tradeoff between civil liberties and national security is a false one. No need for dubious usurpations of freedom like the PATIOT Act would exist if the United States would avoid unnecessarily creating and inflaming anti-American groups overseas with its overly interventionist foreign policy. A more restrained policy abroad would better preserve both liberty and security at home.


Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute in Oakland, California, and author of the books The Empire Has No Clothes, and Putting “Defense” Back into U.S. Defense Policy.

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