Americans who take their freedoms seriously will observe December 15
as Bill of Rights Day. On this date 212 years ago, Virginia's legislature
made the Bill of Rights the law of the land by ratifying the first ten
amendments to the U.S. Constitution.
During the debates on the adoption of the Constitution, critics had
repeatedly charged that, as drafted, the document would not protect
citizens from governmental infringements upon such rights as freedom
of expression and due process of law. Fresh in the minds of the people
was the memory of violations of basic rights under British rule. As
the voting delegates discussed this problem during the ratification
debates, five states specifically demanded--and were promised by Federalist
leaders--amendments that would amount to a bill of rights.
On September 25, 1789, the first Congress proposed to the state legislatures
twelve amendments to the Constitution that met the arguments most frequently
advanced against it. The required three-fourths of the state legislatures
ultimately ratified ten of the amendments, known collectively as the
Bill of Rights.
Yet, when Congress and the President felt threatened by real or perceived
transgressions against the nation's security, particularly from abroad,
curtailing the people's freedoms from government control seemed to become
one of the first defensive moves. Already in 1798, Congress passed the
repressive Alien and Sedition Acts. During the Civil War, both World
Wars, and the Cold War, the federal government deemed it necessary to
abridge first and fourth amendment rights of citizens and immigrants.
The terrorist assaults on the World Trade Towers and the Pentagon on
September 11, 2001, quickly brought wide-ranging invasions upon the
right to privacy. In great haste, Congress passed amendments to more
than fifteen federal statutes with minimal debate. The "Uniting
and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001" has since become
known by its acronym, composed of the capital letters of each of the
title's noun, as the USAPATRIOT Act.
It requires the courts to authorize the surveillance of any person on
U.S. territory when the Federal Bureau of Investigation (FBI) certifies
that the surveillance is relevant to an ongoing criminal investigation
or the Central Intelligence Agency (CIA) needs it for intelligence purposes.
That means the courts no longer exercise the discretion to grant or
deny such petitions.
Wiretapping no longer covers only telephones but all electronic communications,
including e-mail. Court orders for surveillances, moreover, may be executed
not only in the territory of the court's jurisdiction, as in the past,
but now nationwide.
The USAPATRIOT Act allows the use of the controversial Carnivore system,
which gives the FBI access to the communications of all subscribers
of a monitored Internet service provider, not just the communications
of court-designated targets. The Act also eliminates the previous requirement
that law enforcement notify a person subject to a search warrant at
the time of the search. The new search provisions allow delayed notice
of searches if an immediate notice of the execution of the warrant would
have "an adverse effect." This constitutes a significant departure
from the traditional fourth Amendment standard and could result in surreptitious
searches of private communication searches.
Critics of the USAPATRIOT Act question whether its "sneak and peek"
provisions --based merely on suspicions rather than on probable cause--are
really necessary to prevent terrorist attacks on America's homeland.
At least two of the hijackers on September 11, 2001, were on the State
Department's tip-off list, but nobody checked it. It was the failure
to focus on the known terrorist threats that caused the disaster, not
the lack of data or the inability to get them with the available constitutional
surveillance tools.
Given the lack of congressional and judicial oversight over the implementation
of the sweeping new surveillance powers of the executive, we need to
ask, particularly on this year's Bill of Rights Day: Who is now guarding
the guardians of our liberties?