11/13/2004

The Village Voice: Nation: Liberty Beat: Cuffing Bush and the FBI

Bush's re-election ensures that he and John Ashcroft's designated successor, Alberto Gonzales, will press Congress hard to retain the Patriot Act in its entirety, and enact a Patriot Act II that will further disable the Constitution.

There are two primary roadblocks to further assaults on our liberties. Despite continued Republican control of Congress, there is still a firm alliance there between civil-liberties Democrats and conservative Republican libertarians, especially in the Senate. That coalition will continue to oppose Bush's determination to fight the Patriot Act's 'sunset clause,' which permits reconsideration of parts of the act by December 2005.

During the presidential campaign, Bush repeatedly urged Congress to ignore the 'sunset clause' and enshrine the Patriot Act permanently. The Bill of Rights Defense Committee resolutions in nearly 400 cities and towns, and four state legislatures, will keep the pressure on Congress to resist this expansion of executive powers.

Our second hope is the awakening lower federal courts, which are now challenging sections of the Patriot Act. But even if these judicial curbs on Bush and Ashcroft grow, any such victories can be overturned by the Supreme Court, to which Bush is going to make at least one appointment, and possibly more, by the end of his second term.

These are obviously perilous times for constitutional freedoms. But attention should be paid to the strongest blow yet against Bush and the Patriot Act"

Furthermore—dig this—every National Security Letter comes with a gag order. The recipients are forbidden to tell any other person that the FBI has demanded this information, and can't even tell their lawyers that the long hand of the government is scooping up their data.

As Judge Marrero said in his decision, this omnivorous invasion of privacy is so broad that it mandates this gag rule "in every case, to every person, in perpetuity, with no vehicle for the ban to ever be lifted from the recipient."

The scope of this court's setback to Big Brothers Bush, Mueller, and Ashcroft is underlined by Jaffer's point that if Judge Marrero's decision is upheld, it could "apply with equal force" to other dimensions of National Security Letters that allow the FBI to get personal information from financial institutions, including credit card companies and banks.

Furthermore, the much publicized and dreaded section 215 of the Patriot Act, which gives the FBI authority to search your personal data from your visits to libraries, bookstores, and other sources of information, could also be overturned.

In striking down the noxious National Security Letters section 505 of the Patriot Act, Marrero wrote: "Under the mantle of secrecy, the self-preservation that ordinarily impels our government to censorship and secrecy may potentially be turned on ourselves as a weapon of self-destruction . . . "

Marrero then emphasized a truth that ought to be kept in mind as George W. Bush, having won the popular vote, unlike in 2000, uses national security even more forcefully against the Constitution. Judge Marrero warns:

"Sometimes a right, once extinguished, may be gone for good." (Emphasis added.)

But for now, as Judge Andrew Napolitano, Fox News Channel's resident—and admirable—constitutional analyst, says of the Marrero decision: "This stops the FBI from writing their own warrants."

During the campaign, John Kerry said nary a word about National Security Letters.

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