In contrast, only a more militant approach—the repeal of the PATRIOT
Act, the ending of warrantless domestic spying, and the opening of the
process by which national security warrants are approved—will adequately
preserve the liberties that the nation’s founders enshrined in the
Constitution’s Bill of Rights.
The concessions the Democrats agreed to include a change in the
National Security Letters, a form of secret subpoena, which could not
now be used on libraries (but still can be used everywhere else). Also,
recipients of “Section 215” subpoenas, issued by the secret Foreign
Intelligence Surveillance Act (FISA) Court, could now eventually
challenge the prohibition on telling anyone they received one.
But the vast majority of the PATRIOT Act’s draconian provisions
increasing the authority of federal authorities to tap phones, obtain
personal records, and search homes will probably be renewed.
The PATRIOT Act is unlikely to prevent another terrorist attack. Even
before 9/11, law enforcement authorities had enough investigative powers
to battle terrorism without it. In 1996, the Clinton administration
handed law enforcement agencies increased authority via the
Anti-Terrorism and Effective Death Penalty Act, but this did not prevent
The failure to detect and prevent the 9/11 attacks was due to lack of
coordination within and among federal law enforcement and intelligence
agencies, not because of a lack of snooping authority. Congress should
ask whether rewarding such failure with increased authority and funding
is the best way to fight terrorism. But it is an election year and
politicians—especially some Democrats—need to show that they are taking
tough actions to “protect” American citizens from the terrorist menace.
This inclination was on display recently on an episode of “Meet the
Press.” Jane Harman, the ranking Democrat on the House Intelligence
Committee, and Tom Daschle, former Senate Majority Leader and possible
future candidate for the Democratic presidential nomination, both agreed
that the warrantless NSA domestic spying program should continue but
implied that the law should be changed so that President Bush was no
longer in violation of it.
Yet the Fourth Amendment to the Constitution implies that a warrant
is needed for any search or eavesdropping and says that there needs to
be “probable cause” that a crime has been committed before a court can
issue one. The Constitution says nothing about suspending this provision
The Fourth Amendment’s requirement, in both wartime and peacetime,
for a court-ordered warrant belies the White House’s claim that in
wartime, the president’s authority is supreme. Even President George W.
Bush, on April 20, 2004, obviously hiding his warrantless domestic
spying program, said that nothing had changed and that a wiretap still
required a court order.
The claim that other presidents, including Franklin Roosevelt, took
actions that implied such broad presidential authority in wartime does
not trump the founders’ clear intent to constrain the nation’s leader
from taking the nation to war unilaterally.
As for the congressional resolution authorizing the use of force
against global terrorists implying the authority for warrantless
domestic spying, even conservative Sen. Lindsay Graham, R-S.C., doesn’t
buy this administration red herring. Also, Daschle noted on “Meet the
Press” that Congress narrowed the president’s authority in that
resolution and omitted the words “in the United States” from his
authority to wage war, confining it to overseas actions.
The administration seems to think that it needs to get a warrant from
the secret FISA Court when snooping into communications between two
domestic parties but not when a domestic party is communicating with a
foreign party. Why does a person in the United States talking to or
e-mailing a foreign person have fewer rights than a person communicating
with another person within the nation’s boundaries?
The two Democrats on the show, along with two Republican opponents,
spent most of the time deploring the ill effects on efforts to monitor
terrorists of the leak disclosing the NSA surveillance program and
arguing about whether the Democrats should have objected sooner to the
program. But it’s not as if terrorists didn’t know that the U. S.
Government was monitoring their communications. And who cares if the
Democrats should have objected earlier (they probably should have)? The
issue is whether warrantless domestic spying should be stopped. It
And why stop there? That we depend on a secret court to uphold
peoples’ rights shows the sorry state of civil liberties in this
country. Secret courts are for Nazi Germany and the Soviet Union, not
the U.S. of A.
Why not declassify the FISA court? Regular courts handle espionage
and organized crime cases by protecting witnesses. The same could be
done for surveillance requests.
The court’s lack of public accountability has allowed it to become a
virtual rubber stamp for whatever administration is in power. Only a
handful of the tens of thousands of secret surveillance requests have
been denied. This lack of meaningful oversight erodes the checks and
balances of our multi-branch government, as created by the Constitution.
In the current environment of “creeping authoritarianism,” radical
measures—such as repeal of the PATRIOT Act, the ending of warrantless
domestic spying, and the declassification of the FISA court—are the only
things that can restore the rule of law and true constitutional
Ivan Eland is a Senior Fellow at The Independent Institute,
Director of the Institute’s
Center on Peace &
Liberty, and author of the books
The Empire Has No Clothes, and
Putting “Defense” Back into U.S. Defense Policy.