Text 6818, 110 rader
Skriven 2004-12-29 16:20:12 av Alan Hess
Ärende: our liberty under seige
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http://www.baltimoresun.com/news/opinion/bal-op.patriot29dec29,1,3766810.story
?coll=bal-pe-opinion

Our liberty under siege


By Andrew P. Napolitano

December 29, 2004

PRESIDENT BUSH recently signed into law the Intelligence Reform Act of 2004. It
should have been dubbed an addendum to the Patriot Act.

Congress' rush to meet the artificial deadline of the end of this year for
reorganizing the U.S. intelligence community has produced a 600-page,
impossible-to-read statute that has clauses that significantly interfere with
constitutionally guaranteed rights and were never the subject of any debate by
members of Congress.

Sadly, there is precedent for Congress enacting bad legislation its members
have not debated or even read.

The Patriot Act was cobbled together in secret after 9/11, and the final
version contained language offensive to the Constitution that was not in the
version distributed to members of the House and Senate. But Congress voted for
it anyway.

For example, sections of the Patriot Act authorizing federal agents to write
their own search warrants and making it a crime for their recipients to speak
to anyone about them were never shown to Congress before it voted on them.

Members of Congress who objected to voting on legislation without first reading
it amended the Patriot Act to include a "trigger" which provided that, upon the
request of any member of Congress, the debate that never took place before
voting would commence sometime afterward.

When Congress adopted the Intelligence Reform Act, it secretly squeezed in what
I refer to as an addendum to the Patriot Act, also without debate, by making
changes to elements of the 2001 Patriot Act.

Here's what it provides: At present, if the government wants a defendant held
without bail, it must demonstrate to a judge that the defendant is a flight
risk. Under this Patriot Act addendum, if the government declares a defendant a
terrorist and a flight risk, the defendant must prove that he is not a flight
risk, rather than the government proving that he is. This turns the presumption
of innocence on its head, since in criminal cases, the Constitution requires
that defendants don't have to prove anything in order to enjoy their freedom.

Even though Patriot Act-authorized self-written search warrants have been held
unconstitutional by the only federal court asked to review them, in New York
City, the new addenda broaden the category of permissible recipients of
self-written search warrants. They now include automobile, plane and boat
dealers, telegraph companies, travel agencies and jewelry stores. Lawyers'
offices and the U.S. Postal Service were added last year. Congress merely
ignored the unconstitutionality of the original law dealing with the warrants.

Until this addendum to the Patriot Act, it was unlawful to leak federal grand
jury testimony, regardless of how noble the leaker's purpose. The secrecy of
grand jury proceedings has been enshrined in Anglo-American law for over 600
years. Now, federal prosecutors -- and no one else -- may lawfully leak. This
gives the government a tool permitting enormous harm since grand jury leaks can
destroy a public figure's reputation. Just ask Jason Giambi or Barry Bonds.

And that trigger provision in the original Patriot Act? It is repealed in the
Intelligence Reform Act. The 9/11 commission wanted more spies, not less
freedom. What's going on here?

The Patriot Act and its progeny are the most abominable, unconstitutional
congressional assaults on personal freedom since the Alien and Sedition Acts of
1798 made it a crime to libel the government. With them, Congress and the
president have attempted to legitimize the exchange of liberty for security. In
effect, the government says, "Give us your freedoms, and we will protect you."
Such a satanic bargain misunderstands the nature of freedom and historically
never has worked.

No rational person has ever voluntarily given up his own freedoms. Sacrificing
freedom has never made us safer, just less free.

If we allow the president and Congress to treat our constitutional guarantees
as if they were arbitrary gifts from the government, we will be doing the
terrorists' work for them. The government doesn't give us our freedoms. We give
the government its power. Our freedoms come from our humanity. Shouldn't the
government be defending our freedoms rather than curtailing them? Didn't the
president and members of Congress swear to uphold the Constitution rather than
evade it?

After then-Attorney General A. Mitchell Palmer arrested without charge over
1,000 Eastern European intellectuals during World War I and after the United
States interned more than 110,000 Japanese-Americans during World War II, we
looked back in horror at what was done. We haven't learned. Since 9/11,
hundreds of Arab-Americans have secretly disappeared from our streets.

Those useless, lawless and fruitless assaults on "their" freedoms so as to
enhance "our" safety were condemned in 1988 when Congress passed, and President
Ronald Reagan signed, the Civil Liberties Act of 1988, which compensated those
still living who had been detained and declared: "Never again."

The wartime arrests condemned in 1988 were the unilateral acts of misguided
elements of the government. But in the Patriot acts, President Bush and this
Congress have written these nefarious powers into federal law, without debate.
Congress may not read our laws; but it should read our history.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey and
the senior analyst at Fox News, is the author of Constitutional Chaos: What
Happens When the Government Breaks Its Own Laws.

Copyright + 2004, The Baltimore Sun

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