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Originally Published: 11/15/2006


By The Issue Wonk


Everyone’s abuzz about the elections last week turning control of Congress over to the Democrats.  Both houses.  And there’s little speculation about what is going to be the first order of business – the Iraq War.  Nancy Pelosi (D, CA), the in-coming Speaker of the House, has stated that drawing down troops is her number one priority.1  The Democratic Leadership Conference has posted on its Web site its 10 Big Ideas for the New Century, which includes economic growth, health care, and education, among others.  Some have said overseeing government contracting and war profiteering are a major priority.  And, of course, there’s the usual laundry list, like minimum wage, ethics, lobbying reform.


However, anyone who’s been reading The Issue Wonk knows how I feel about the gutting of the Constitution.  All of the good ideas in the world won’t be worth a diddly-damn if our Constitutional rights are undermined.  I covered these issues in The Betrayal of America.  So, I believe the first thing the new Congress needs to do is roll back the un-Constitutional legislation that has been passed over the last few years.  Here’s my roll-back list.


The Military Commissions Act.  This is the Act that condones torture and eliminates habeas corpus.  The bill also strips U.S. courts of jurisdiction over the newly established system of military tribunals, changes the rules of evidence, and bars legal actions based on the Geneva Conventions.  It allows the president to determine who is an “enemy combatant” and what is and what is not a “war crime.”  Our country cannot move ahead with legislation like this on the books.  Eliminating this Act must be the first priority of the new Congress.


Martial Law.  Congress modified the Insurrection Act as part of the 2007 Defense Appropriations Bill.  It expanded the President’s ability to deploy troops as a police force during various conditions when the President determines that the authorities of the state are incapable of maintaining public order.  Opposed by the National Governor’s Association, this, too, must be changed.


The Patriot Act.  The USA Patriot Act violates so many laws and Constitutional rights it needs to be eradicated.  The Act is difficult to summarize, but let me try.


National Security Letters.  National Security Letters (NSLs) originally had to be issued by senior FBI officials.  This Act allows NSLs to be issued by FBI field supervisors with no oversight, for any reason whatsoever.


Sneak and Peek Warrants.  The Act also allows “sneak and peek” warrants, authorized by the Foreign Intelligence Surveillance Act (FISA), to be extended to any criminal search, not just for foreign intelligence.  This allows for secret searches of private homes and property and places of business without prior notice and without owners knowing about it until weeks or months later, if ever.


Probable Cause.  The Act also put the need for “probable cause,” guaranteed by the Fourth Amendment to the Constitution, into question.  It made changes to FISA so that the FBI only needs to certify to the FISA judge (no need for evidence or probable cause) that a search protects against terrorism.  And the target of a search doesn’t have to be a terror suspect, so long as the government’s purpose is “an authorized investigation . . . to protect against international terrorism.”  It also allows these searches to be secret and, since there is a “gag” order, the order cannot be challenged in court.


Domestic Terrorism.  The Act creates of new category of crime called “domestic terrorism” and defines it as acts “dangerous to human life” if the actor’s intent is to “influence the policy of a government by intimidation or coercion.”


Pen Registers/Trap and Trace.  The Patriot Act amended this FISA provision so that the FBI doesn’t need “probable cause” or even reasonable suspicion to install a “pen register/trap and trace” tap.  It only needs to certify that the information obtained would be “relevant” to an ongoing investigation.  The Patriot Act’s FISA amendment also makes these tools available in criminal investigations, in essence ignoring the “probable cause” requirement of the Fourth Amendment.  And it expands the “pen register/trap and trace” authority to Internet surveillance, particularly information about “dialing, routing, and signaling,” and expands the monitoring of this information to anything that is “relevant to an ongoing criminal investigation.”


Roving Wiretaps.  Roving wiretaps are taps specific to no single phone or computer but to every phone or computer a “target” may use.  Thus, if “targets” use a computer at a public library, they can forevermore tap the usage of all computers at that library.


Warrantless Surveillance.  While Congress has refused to pass new legislation to legalize the acts of President Bush that violate FISA, they have done nothing to reign him in.  His programs continue but they are clear violations of law and our Constitutional rights.


These, my friends, should be the first order of business.  Yes, the Iraq War is important, as are the other things.  But I’m very concerned when I hear all of the in-coming Democrats talking about everything but these issues.  It’s time, once again, to get on the phone (or e-mail or snail mail) and let them know that we demand our rights be returned to us.



1 Stolberg, Sheryl Gay & Mazzetti, Mark.  Democrats to Press Bush to Reduce Troops in Iraq.  The New York Times, November 12, 2006.



© The Issue Wonk, 2006



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