House Chamber, Washington, D.C. February 15, 2011
Last year I voted to extend the PATRIOT Act for one year. I regret that vote and was glad to have been able to correct it, although I am pained that the House voted otherwise yesterday.
During this past year, I have become convinced that the provisions of the so-called PATRIOT Act are an affront to the Bill of Rights and a serious threat to our fundamental liberty as Americans.
The Fourth Amendment arises from abuses of the British Crown that allowed roving searches by revenue agents under the guise of what were called “writs of assistance” or “general warrants.” Instead of following specific allegations against specific individuals, the Crown’s revenue agents were given free rein to search indiscriminately.
In 1761, the famous colonial leader, James Otis, challenged these writs, arguing that "A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege." Two hundred and fifty years later, the PATRIOT Act restores these roving searches.
In the audience that day in 1761 was a 25-year-old lawyer named John Adams. He would later recall, "Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child, ‘Independence’ was born."
The American Founders responded with the Fourth Amendment. It provides that before the government can invade a person’s privacy, the executive branch must present sworn testimony to an independent judiciary that a crime has occurred, that there is reason to believe that an individual should be searched for evidence of the crime and specify the place to be searched and the things to be seized. The John Doe roving wiretaps provided under the bill are a clear breach of this crystal clear provision.
The entire point of having an open and independent judiciary is so that abuses of power can be quickly identified by the public and corrected. The very structure of this law prevents that from occurring.
I also object to the so-called “lone wolf” provision of the Act that allows a person who is not acting in concert with a foreign power to be treated as if they were. This malignant fiction utterly blurs the critical distinction between a private person protected under our Constitution and an enemy combatant acting as an agent of a foreign power.
My Chief of Staff, Igor Birman, was born in Moscow. His family emigrated to America when he was 14. He tells of the days leading up to their long-awaited departure. His father had technical expertise and the authorities were desperate to find some pretense to cancel the family’s exit visa.
A week before they departed for America, the family returned home to find that Soviet authorities had turned their apartment upside down looking for anything that could be used to block their emigration. This was not the result of suspected criminal activity, but rather the same kind of open-ended search the Fourth Amendment protects us against.
His younger brother was terrified and hysterical. His mother calmed the little boy by saying, “Don’t worry. We’re leaving in a few days for America. This will never happen to us there.”
Our country is threatened by foreign governments and multi-national terrorist groups which are actively working to do us harm, backed by a fifth column within our borders. But we have faced far more powerful governments and far better organized networks of spies and saboteurs in the past without having to shred our Bill of Rights.
The freedom that our Constitution protects is the source of our economic prosperity, our moral authority and our martial strength. It is also the ultimate bulwark against authoritarianism. Abraham Lincoln was right. No transatlantic military giant – let alone some fanatical terrorist group – can ever “step across the ocean and crush us at a blow.” And no foreign power can destroy our Constitution.
Only we can do that. As Lincoln said, “As a nation of free men, we are destined to live forever – or die by suicide.”