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Post-Mortem on the 4th Amendment

by MIKE WHITNEY

 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

– The Fourth Amendment to the Constitution of the United States of America

The Senate Intelligence Committee is working behind closed doors to expand the powers of the Patriot Act and deliver another withering blow to the 4th amendment. This time the constitutional broadside comes in the form of “administrative subpoenas”; an Orwellian expression which indicates that law enforcement agencies, like the FBI, will be able to circumvent the courts to subpoena records. To understand the breadth of this new classification, we need to grasp the basic inconsistency in the terminology itself.

“Administrative subpoena” is a contradiction in terms, since a subpoena is a writ issued by a court and presumes judicial oversight. To confer this very explicit (legal) power on the FBI confuses the meaning of the language and implies that FBI agents can act as their own judge. It is the Bush administration’s way of pummeling the judiciary while providing law enforcement with the power to interpret the 4th amendment however it sees fit.

The officious sounding “administrative subpoena” is clearly the work of right wing think-tanks; probably the Federalist Society. Many of the Society’s members are high-ranking officials in the Justice Dept. and have helped to shape the language and rationale for the increased powers of the executive, the diminished powers of the court, the savaging of the constitution, the text of the Patriot Act, and the justification for torture.

Senate Intelligence Committee Chairman Pat Roberts is the administration’s “go-to” guy in the Senate. He played a major role in suppressing information in both the 9-11 investigation and the investigation of the intelligence failures leading up to the Iraq war. His task now is to convince reluctant members on the committee that the FBI needs this new regressive legislation to “get information faster in national security investigations.”

Robert’s knows as well as anyone that the subpoenas will not be limited to national security investigations, but will be used on routine criminal investigations or “fishing expeditions” on political enemies. If the law passes, we can expect that members of politically active anti-war, environmental and civil liberties groups will have their private records (medical, dental, credit, library, tax etc) investigated without the slightest indication of criminal wrongdoing. Probable cause will be a thing of the past.

The range of the Patriot Act expanded dramatically under Ashcroft. The former Attorney General even boasted to Congress that it was being used in drug and money laundering investigations. Ashcroft breezily ignored the fact that the legislation was designed exclusively for cases related to terrorism. Instead, he used it as a device to bypass privacy rights and increase government intrusion into the activities of criminal suspects. Now, Senate Republicans Senate want to expand on those powers and eliminate the courts altogether. The new law would mean the death of judicial oversight.

If we assess the Patriot Act in terms of stopping terrorism, we can see that it’s been a dismal failure in every regard. As the Nation’s David Cole pointed out last year, not one terror suspect has ever been convicted as a result of the Patriot Act. (The one conviction in a Detroit case has been overturned due to the Justice Depts. withholding of information) In fact, the Patriot Act was never designed to stop terrorism but to allow the government to spy on the American people without running afoul of the law. Preserving that advantage is extremely important to the administration. That explains why popular support is maintained through a coordinated media campaign of fear mongering. The specter of terrorism is the only way the administration can market its assault on personal liberty.

Invoking the Terror Hobgoblin

FBI General Counsel Valerie Caproni addressed the Senate last week to defend the need for administrative subpoenas saying, “Can we show you a precise example of where, because of a delay, a bomb went off? We cannot, but it could happen tomorrow. It could.”

Caproni’s hackneyed “ticking time-bomb” argument has been a reliable favorite for spooking the public into acquiescence, but there are signs that Americans are starting to recoil from savaging more of their rights. Volunteer groups supporting the Bill of Rights have passed resolutions in hundreds of American cities (as well as 3 more state legislatures; Idaho, Montana and Colorado) opposing the Patriot Act. It’s all but certain that they will bitterly fight this new provision.

Regrettably, Senate Intelligence Chair Pat Roberts has been extremely effective in co-opting reluctant members of his committee and moving the White House’s agenda forward. He has warned of “constraints that would tie the FBI’s hands unnecessarily”; an empty caveat that ignores the more immediate danger of law enforcement officers operating beyond their traditional restrictions. Robert’s legislation ensures that agents will be much freer to operate according to their own inclinations which will inevitably invite the abuse of power and the further trampling of individual rights.

As for the 4th amendment, administrative subpoenas will preclude the “reasonable expectation of privacy” and will pave the way for unlimited and unwarranted government intrusion.

Spying on the citizenry is not unique to the Bush administration. It is a practice that is commonplace in all police states; especially those that disguise their activities with the overheated rhetoric of religious zealotry and nationalism. If the new legislation moves forward in its present form, the administration will be free to sidestep the probable cause requirement and probe every minute detail of the citizen’s life without any fear of legal retribution. This puts Bush and his friends in the FBI safely beyond the range of judicial oversight; enhancing his executive powers while diminishing the protections normally afforded to American citizens. For Bush, that’s a winning combination.

MIKE WHITNEY lives in Washington state. He can be reached at: fergiewhitney@msn.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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MIKE WHITNEY lives in Washington state. He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press). Hopeless is also available in a Kindle edition. He can be reached at fergiewhitney@msn.com.

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