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Patriot Act in trouble



The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.

The USA-PATRIOT Act might expire, however strange that might seem. Two motions for cloture failed in the Senate this week. The Senate Republican Floor Leader will actually open a session of the Senate Sunday, May 31. In fact, that Act should expire. Its provisions have not helped law-enforcement officers stop any terrorists. They are more likely to help an unscrupulous “leader” prosecute the innocent.

History of the Patriot Act

The full name of the Patriot Act should give anyone pause: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. The name sounds good – at first. But when a government talks about “uniting and strengthening” a country, it usually means to apply greater force. For that is what a government does: manage force in retaliation against those, within or from without, who start its use. Still, that language reminds CNAV of a certain dialog from a failed 1967 television series pilot. A senior government security officer speaks of an America “strong and united.” His subordinate then asks, “That used to read ‘strong and free,’ didn’t it?”

A symbol of liberty. The Patriot Act is inconsistent with liberty.

Statue of Liberty on Liberty Island, New York Harbor. Photo: William Warby, CC BY 2.0 Generic License.

At issue: Section 215 of the Patriot Act. Under that section, the National Security Agency gathers vast quantities of “telephony meta-data”: telephone numbers, and the minimum information for tracing. The NSA would have us believe they have used Section 215 data to stop terrorists from blowing things up and killing people. But has it? According to their own reports, the NSA cannot name one single plot they couldn’t have broken up without the Section 215 take.

That take has another problem: the NSA collect too  much of it. No one has time to sift through it. So in theory, some NSA officer, somewhere, could snoop into your private business, and maybe blackmail you. And while that’s happening, they stand as much chance of stopping a real terrorist with that take as by opening the phone book to a random page and holding a leaky fountain pen over it.

Judge Andrew P. Napolitano, late of the Superior Court of New Jersey, said earlier this week: a court has found Section 215 unconstitutional. The judge has consistently railed on the Patriot Act, on account of Section 215 and on account of other provisions. Among other things, the Patriot Act lets federal agents file writs of assistance, similar to those British officers issued in colonial days. For that reason, James Madison added the Fourth Amendment. Under it, a search warrant must particularly describe the place and object of any search.

The Patriot Act stalls

Senator Rand Paul (R-Ky.) memorably held up business in the Senate for ten hours. He sought to do two things. First to hold up any votes on the Patriot Act before its provisions expire this June 1. And second to change minds in the Senate.

He might have changed enough minds at that. The House proposed an alternative they called the USA Freedom Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet collection and On-line Monitoring). Let the reader judge for himself whether that Act lives up to its acronym or its full name. Senator Paul says it doesn’t. Apparently all it does is ask the telephone companies to keep the metadata, instead of that vast data repository south of Salt Lake City, Utah. Senator Paul paraphrased a former Member of the Senate: what difference would that make?

The Senate tried to invoke cloture. Cloture failed, on a vote of 57 to 42.

So next Senator Mitch McConnell (R-Ky.), Paul’s senior colleague and Republican Floor Leader, tried to move cloture on a “clean” extension of the present Patriot Act until July 31, 2015. That motion did not even win a simple majority in the Senate.

Hence Senator McConnell’s plan to call a Sunday session on May 31. Why wait so long? Because the Senate went on recess for Memorial Day week.

Memorial Day gives us a good chance to remember what those dead soldiers died for, especially during the Second World War. CNAV firmly believes they did not lay their lives on the line so that the United States of America would some day do things the way Nazi Germany (or for that matter, Soviet Russia) did. Whether any given agency calls itself National Security Agency, or Secret State Police, or Ministry (or Department or Committee) for State Security, or (with apologies to Screen Gems) Internal Security Forces, its mission and purpose sounds the same. And the Patriot Act made the mission the same. That’s why the Patriot Act should expire.

Naturally some might ask, would you sooner accept more Boston Marathon-style casualties? Three answers suggest themselves at once. First, the Patriot Act did not stop Tamerlin or Dzhokar Tsarnaev from doing their deeds. Second, a country of rank amateurs, watching the coverage of the Boston Marathon bombing, “made” the brothers Tsarnaev even before the FBI did. Third, as the NSA have already had to admit, alert witnesses and skilful regular police officers have stopped terror plots without any of the “tools,” “appropriate” or not, that the Patriot Act “provides.” The Curtis Culwell Center Incident in Garland, Texas stands as a prize example.

Thus the Patriot Act “provides” certain “tools” that we assume will “intercept or obstruct terrorism.” But those tools:

  1. Are not appropriate,
  2. Are not required, either, and
  3. Might not even be effective.

All good reasons to let this Act lapse.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.