Thursday, May 26, 2005

THE SENATE INTELLIGENCE COMMITTEE meets today, in secret, to vote on whether to reauthorize the Patriot Act, whether to make its most controversial provisions permanent, and whether to give the FBI broad new powers to seize personal records without court approval and without any evidence of criminal activity.

The bill would grant so-called "administrative subpoena" authority to the FBI, letting the bureau write and approve its own search orders for any tangible thing it deems relevant to an intelligence investigation without approval. This power would let agents seize personal records from medical facilities, libraries, hotels, gun dealers, banks and any other business, without having to appear before a judge, and without any evidence that the people whose records are swept in are involved in any criminal activity.

The proposal would also give the FBI broad new powers to track people’s mail in intelligence inquiries. It would force postal workers to disclose the name, address and other information appearing on envelopes delivered to or from people designated by the FBI, without any meaningful protections.

The bill would permit secret Foreign Intelligence Surveillance Act searches and surveillance for the sole purpose of criminal prosecution for certain crimes, such as terrorism and espionage, allowing searches to proceed without following the requirements of the Fourth Amendment to the Constitution. FISA searches were designed to be used a tool in intelligence gathering investigations, so they are held to lower evidentiary standards than criminal investigations.
The ACLU also noted that the proposed legislation would remove the one safeguard in place against using FISA warrants recklessly. Currently, FISA warrants cannot be issued against Americans when the investigation is "conducted solely upon the basis of activities protected by the first amendment to the Constitution." The proposed legislation would amend that limited protection so that FISA records searches can be conducted solely based on First Amendment activities so long as the investigation as a whole is not based solely on constitutionally protected activity.

Let's go over that again. The FBI has asked a Senate committee for the power to seize documents of any kind, belonging to anyone, for any reason and without having to state a reason at all, and without having to get a judge's approval. The FBI, in other words, wants unlimited authority to seize your private records with no accountability to anyone. And the Senate committee is voting on whether to say yes to that. They are voting in total secrecy -- no public hearings, no debate on the Senate floor, no journalists to witness or report on the vote. In fact, as I write, the vote has probably already been taken. And there is virtually no chance that the result of the vote will be anything but yes.

And as counterintuitive as this might seem, the political party that is pushing to give the federal government more power over Americans' private lives than our government has ever had before, is the party that historically didn't trust government to get it right, that believed in small government, that felt government should have no more power than absolutely necessary. Things have changed. "That government is best which governs least" is now a liberal, not a conservative, value. The areas of life that used to be entirely one's own to decide and that no one else would know about unless you chose to tell them -- having children or not, adopting a child, choosing the person you wish to marry, having a private religious or spiritual life that no one can intrude on or require you to renounce, deciding what spiritual and personal values you wish to teach your children, what books or magazines or newspapers you prefer to read, what health or medical issues you have and how you wish to handle them and what your doctors tell you to do or what they have done; the details of your financial life, how much money you make, what jobs you've looked for, what your career goals are, what your supervisor told you in your last evaluation -- all these and more are now open to government surveillance.

It's much easier than it should be to lose your freedom. It's much easier than you might think it is to surrender your freedom. And much more difficult ever to get back, once you have given it away.

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