Monday, November 07, 2005

Patriot Act: Shredding the Constitution

We are long past the point at which constitutional arguments have much hope of restraining the American political class, either at home or abroad. They are still worth making, though, since they serve to show the two major parties’ contempt for American law and tradition.

Professor Thomas E. Woods, Jr.
"Presidential War Powers"

If you have any regard whatsoever for the U.S. Constitution and the Bill of Rights, you should be frightened and angered by this story from Sunday's NYT:
The FBI came calling in Windsor, Conn., this summer with a document marked for delivery by hand. On Matianuk Avenue, across from the tennis courts, two special agents found their man. They gave George Christian the letter, which warned him to tell no one, ever, what it said.
Under the shield and stars of the FBI crest, the letter directed Christian to surrender "all subscriber information, billing information and access logs of any person" who used a specific computer at a library branch some distance away…

…The Connecticut case affords a rare glimpse of an exponentially growing practice of domestic surveillance under the USA Patriot Act, which marked its fourth anniversary on Oct. 26. "National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.

This is about as "in your face" as Mister Bush's beloved Patriot Act gets. How can he or anyone think this isn't in flagrant violation of the Fourth Amendment?
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.


Not everyone realizes what exactly their rights under the Constitution are. Along with the Fourth Amendment quoted above, here's my short list of "Civil Liberties Everyone Should Know."
From the Bill of Rights

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The first ten amendments aren't the only areas of the Constitution that guarantee specific rights. Article I, which describes the function of the legislature, contains two important limitations of Congressional power over individuals in section 9.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Project Vote Smart describes habeas corpus as:
A court order directing a police officer, sheriff, or warden who has a person in custody to bring the prisoner before a judge and show sufficient cause for his or her detention. Designed to prevent illegal arrests and unlawful imprisonment. A Latin term meaning "you shall have the body".

Now, one may point to the 9/11 attacks as sufficient reason to suspend the habeas corpus privilege, but you'd have to come up with a mighty dandy argument to convince me that flying airplanes into buildings amounts to rebellion or invasion. In old-fashioned military terms, 9/11 was a small series of coordinated air strikes.

Moreover, the Constitution specifically grants the "special circumstance" power to revoke habeas corpus to Congress, not the Executive Branch, and nothing in the Constitution allows Congress to delegate its powers to the president or the offices under him.

(Yeah, I know, Lincoln got away with it briefly. But just because he got away with it doesn't make it legal, then or now.)

Article I also states:
No bill of attainer or ex post facto Law shall be passed.

A bill of attainer is:
A legislative act that declares the guilt of an individual and doles out punishment without a judicial trial.

The Patriot Act clearly violates the bill of attainer prohibition. In essence, it allows Mister Bush to judge anyone he pleases to be an "enemy combatant" and hold that person in prison indefinitely.


Article II of the Constitution designates the president as Commander in Chief of the armed forces.

Nowhere does the Constitution give the president to suspend any part of the Constitution or laws passed under it.

Nothing in the Constitution allows the judicial or legislative branches to grant the president that authority.

The Constitution does not make allowances for declarations of martial law. It doesn’t even mention martial law.

The War Powers Act of 1973 does not provide for legal suspension of civil rights in time of war, formally declared or otherwise.

With the Patriot Act, Congress passed an unconstitutional law that authorized Mister Bush to suspend large portions of the Constitution, and the judicial system, our constitutional watch dog, let them get away with it.


In Panama today, Mister Bush stated that "anything we do" to fight the war on terror is "within the law."

He must think his oath of office obliges him to "…hold up the Constitution…"


  1. Jeff, Thank youn for posting this. Why are we not mad as hell and storming the streets? (I seem to wonder this once a month or so).

    I'm just baffled over and over again by the audacity of these people, and the ignorance of the majority of Americans -that allows them to stomp all over us as they march our freedom RIGHT over a cliff.