When I think of the PATRIOT Act I can't help but think of John Adams, who at great political and personal risk, defended the British soldiers accused of the Boston Massacre. There are times when patriots must stand up and defend liberty, even if that defense of liberty is unpopular.
Certain legal principles such as innocent until proven guilty, the right to a legal defense, and the right to be free from warrantless searches are ingrained in America's origins.
Former FBI agent Michael German put it well in his analysis of the PATRIOT Act,
"The framers of the Constitution recognized that giving the government unchecked authority to pry into our private lives risked more than just individual property rights. These patriots understood from their own experience that political rights could not be secured without procedural protections. The Fourth Amendment mandates prior judicial review and permits warrants to be issued only upon probable cause."
Our Founding Fathers saw the Fourth Amendment as a remedy to the arbitrary and unreasonable assaults on free expression exemplified by King George's abuse of general warrants.
At our founding, English common law provided the basis for an inalienable right to be secure in our persons and property from an overreaching, unrestrained government. Those setting up our system of laws had seen first-hand the arrogance of power and corrupt systems that abridged these freedoms in the colonies, in the name of the crown.
Broad and abusive "writs of assistance" were used in the colonies to justify entering a property without notice, seizing goods, and conducting searches without specifics or limits in scope.
The situation was so despised and so injurious to liberty, that the top lawyer in the colonies, who was supposed to represent the British crown in defending such searches, resigned in protest and instead represented the cause of freedom.
It was this lawyer, James Otis', powerful defense of liberty and rage against the unchecked power of the government to prompt future President John Adams to call the issue "the spark in which originated the American Revolution."
When I think of the PATRIOT Act, I also think of this fight against Britain's use of writs of assistance against the colonists. Otis condemned these general warrants as "the worst instrument of arbitrary power the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book." He objected to these writs of assistance because they "placed the liberty of every man in the hands of every petty officer." The Fourth Amendment was intended to guarantee that only judges, not soldiers or policemen, would write warrants. Otis' battle against warrantless searches led to our Fourth Amendment guarantee against unreasonable government intrusion.
This right was considered so important that it was among the first rights codified in our Constitution:
"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."
These words, like much of the prose that fills our founding documents, is strikingly simple, yet powerful and complete.
At least that's how it was supposed to work.
My main objection to the PATRIOT Act is that searches that normally require a judge's warrant are performed with an FBI agent's letter, a National Security Letter.
I object to these warrantless searches being performed on U.S. citizens. I object to the 200,000 NSL searches that have been performed without a judge's warrant.
I object to over 2 million searches of bank records, called Suspicious Activity Reports, performed on U.S. citizens without a judge's warrant.
In the aftermath of 9/11, our leaders said give us your liberty and we will keep you safe.
We would be wise to remember Franklin's response that those who trade their liberty for security may wind up with neither.
As Michael German put it "modern day patriots are willing to exchange our forbearers' "don't tread on me' banner for a less inspiring one reading "if you aren't doing anything wrong you have nothing to worry about."
I know those that support the PATRIOT Act have our country's best interest at heart but we incorporated the Bill of Rights to protect against the possibility of unrestrained power getting into the hands of bad rulers.
Jefferson wrote that if we had a government of angels we would need no Constitution to protect us. But men are not always angels and I, for one, do not wish to unchain government from the bindings of the Constitution.
If we do not protect the Fourth Amendment, we cannot be secure in the First or Second either. Warrantless searches with broad scopes could easily be used against political causes or enemies
They could easily be used to target gun owners and other patriotic Americans who wish to provide protection for themselves and their family.
I intend to oppose extending the expiring provisions of the PATRIOT Act in the coming weeks. But more importantly, I want to spark a discussion of who we want to be as a people and as a nation. Are we a nation whose laws are in place to protect the rights of the people, or are we willing to give those rights up to more expeditiously capture criminals?
The PATRIOT Act has had little public discussion. The Congressional review that was supposed to take place every few years as provisions sunset has not happened. I think it is about time we in Congress took a serious look at our obligations to stand up for the rights of those we represent, rather than casting the politically easy votes.
Yesterday, the House attempted to once again pass a renewal of the so-called PATRIOT Act, which I believe unconstitutionally empowers the federal government to violate the Fourth Amendment rights of our citizens.
And once again, there was little debate. No committee hearings were held. No amendments were allowed. No examination of whether our government had lived up to its responsibility to protect the liberty of we, the people.
The fight will continue in the House over the next week. It is likely that even with this temporary victory today, the House will pass these extensions and send the Patriot Act renewal to the Senate.
And when they do, I will oppose it.
I do not do this lightly. I firmly believe it is a primary duty of our government to do what it can to protect the lives of its citizens. But I also believe it must in equal measure protect our liberty, and in this, our government has failed us.