Some good news to report on the pro-Constitution front.
There appears, finally, to be some strong sentiment in Congress against the overreach of the USA Patriot Act. And one of the leaders of that sentiment is Sen. Al Franken of Minnesota. Now, a lot of folks assumed that because Al Franken played a clown on TV, he’d act like one as a senator. I wondered, myself. But so far? Agree with his positions or not, he has acted quite senatorial. Yesterday, he gave a Constitutional dressing-down to administration lackey assistant attorney general David Kris, who was arguing in favor of reauthorizing the act, by reading the Fourth Amendment to him:
Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap an unnamed target and his or her various and changing cell phones, computers and other communication devices.
Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “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.”
“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.
Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question.
No, it’s school, suckah, and class is in session. What’s surreal is that so many ostensibly intelligent people in positions of responsibility just one day decided to act as if the Fourth Amendment doesn’t say what it says.
Kris also took it in the teeth from Sen. Russ Feingold, who is a bit unhappy that the provision allowing for searches of suspects’ homes without their knowledge or permission — the so-called “sneak-and-peek” provision — has wandered well afield of its ostensible purpose:
Only three of the 763 “sneak-and-peek” requests in fiscal year 2008 involved terrorism cases, according to a July 2009 report from the Administrative Office of the U.S. Courts. Sixty-five percent were drug cases.
Sen. Russ Feingold (D-Wis.) quizzed Assistant Attorney General David Kris about the discrepancy at a hearing on the PATRIOT Act Wednesday. One might expect Kris to argue that there is a connection between drug trafficking and terrorism or that the administration is otherwise justified to use the authority by virtue of some other connection to terrorism.
He didn’t even try. “This authority here on the sneak-and-peek side, on the criminal side, is not meant for intelligence. It’s for criminal cases. So I guess it’s not surprising to me that it applies in drug cases,” Kris said.
“As I recall it was in something called the USA PATRIOT Act,” Feingold quipped, “which was passed in a rush after an attack on 9/11 that had to do with terrorism — it didn’t have to do with regular, run-of-the-mill criminal cases. Let me tell you why I’m concerned about these numbers: That’s not how this was sold to the American people. It was sold as stated on DoJ’s website in 2005 as being necessary – quote – to conduct investigations without tipping off terrorists.”
Kris responded by saying that some courts had already granted the Justice Department authority to conduct sneak-and-peeks. But Feingold countered that the PATRIOT Act codified and expanded that authority — all under the guise of the war on terror.
Feingold, the lone vote against the PATRIOT Act when it was first passed, is introducing an amendment to curb its reach.
If authority can be misused, it will be. And when the misuse is tolerated, it only gets worse.