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Jewish World Review June 27, 2005/ 20 Sivan, 5765

Nat Hentoff

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The president as head teacher


http://www.NewsandOpinion.com | School principals used to also be head instructors, actually teaching one or more courses. Now nearly all are administrators and delegators — obsessed with test results lest they be charged with running "failing schools" under the No Child Left Behind law. Our presidents, however, are still supposed to be our head educators on foreign, domestic and constitutional issues, using the "bully pulpit" as Franklin Roosevelt and Ronald Reagan compellingly did.

As our national principal, George W. Bush pledged the day after the horrendous attacks on Sept. 11: "We will not allow this enemy to win the war by changing our way of life or restricting our freedoms."

Recently, the president has been repeatedly urging Congress to retain, intact, the Patriot Act, which soon followed Sept. 11 — and the Justice Department's proposed expansion of that law. In a June 9 speech, he emphasized that the Patriot Act, in "protecting our civil liberties," provides "the judicial branch with a strong oversight role." Searches require "strict standards within the Constitution."

There has been considerable dispute, however, as to whether the most controversial searches under the Patriot Act, and its additions, are indeed subject to strict judicial oversight. In Section 215, for example, searches of a wide range of business records, including medical records, libraries, Internet-surfing and other sources, the sole authorizing court is the secret Foreign Intelligence Surveillance Court, which has hardly ever denied a government request for records, including entire databases of institutions.

This rubber-stamping is merely a fig leaf for "judicial supervision."

On June 15, the House removed library and bookstore records from Section 215, but that can be restored in conference committee, and all other kinds of records will still be subject to search anyway. I would also direct the president's attention to a dramatic expansion of the Patriot Act passed in a closed-door session by the Senate Intelligence Committee on June 6. Supported by Alberto Gonzales, the head of the Justice Department, and the White House, this search provision gives the FBI added authority to issue secret administrative subpoenas for personal records from banks, hotels, medical offices, gun dealers and other businesses without first going to a judge — not even to the secret Foreign Intelligence Surveillance Court. Previous administrative subpoenas in such areas as Medicare fraud have been far more limited and specified.

The government says the need for these instant subpoenas, which the FBI will write for and by itself, is to track suspected terrorists before they can harm us. But in a previous open hearing of the Senate Intelligence Committee, Valerie Caproni, the FBI's general counsel, was asked for evidence that the delay in requiring a federal judge to permit a search has ever injured national security.

She answered: "Can we show because of delays a bomb went off? No.

But it could happen tomorrow. It could." However, under this nation's rule of law, the bulwark of our freedoms, revising part of our Bill of Rights to bypass going to a judge on the basis of what "could happen" requires more of an explanation from our head teacher than he has given.

Even Sen. Dianne Feinstein (D-Calif.), who has been a persistent defender of the Patriot Act, was taken aback at that hearing. This sounds, she said, like "carte blanche authority for (an FBI) fishing expedition." And former Republican Congressman Bob Barr, now a privacy expert for the American Conservative Union and the American Civil Liberties Union, said the proposed legislation "would essentially render the Fourth Amendment protections against unreasonable searches and seizures completely meaningless." I agree.

As head teacher of our constitutional liberties, has President Bush forgotten that a precipitating cause of the American Revolution was the "general search warrant" (writs of assistance), whereby British customs officials wrote their own search warrants to enter the colonists' businesses and homes and turn everything upside down, sometimes including the colonists? These raids were reported by the Committees of Correspondence throughout the colonies, greatly adding to their determination to be free of such abuses.

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As of this writing, the Senate Judiciary Committee, which also has authority over the FBI's practices — including whether they are within the bounds of the Constitution — has the ability to enact its own legislation concerning the Patriot Act, very much concerning this abandonment of the Fourth Amendment by the Senate Intelligence Committee. But the Judiciary Committee better do it very soon.

I admire the president's vision of the Liberty Bell of democracy ringing in other lands. But when it comes to our own civil liberties — to borrow a line from Robert Frost — he is "a light ... to no one but himself." With respect, I wish George W. Bush would familiarize himself with why the Constitution would not have been ratified without the addition of the Bill of Rights, and why its Fourth Amendment is urgently the most specifically detailed of all these 10 amendments.

The founding Americans wanted to be certain that the British "general search warrant" would be forever banished from this nation.

Instead, under this bill, you would not even know your records had been subpoenaed. The institutional record-holder must keep the search secret on pain of a year in jail or a fine of not more than $10,000. The record-holder could challenge the subpoena, but would have hardly any incentive to do so, and, in any case, can't tell you that you'd been caught in a dragnet.


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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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