Unreasonable searches and seizures

Published 7:19 pm Thursday, March 22, 2007

Here’s an artifact of archaic, pre-9/11 thinking I found on the Internet: “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.”

Readers who remained alert through high school may recognize the Fourth Amendment to the U.S. Constitution. Awfully stuffy, don’t you think? Who says “shall” anymore? “Particularly describing,” indeed. No red-blooded patriot would use the phrase. It reads like something written by sissies in powdered wigs. Besides, who’s to say what’s unreasonable if not our Glorious Leader, George W. Bush?

In Bushworld, if you have nothing to hide, you have nothing to fear. In Bushworld, we don’t need no stinkin’ warrants. Attorney General Alberto Gonzales emphatically assured Congress in November 2005 that a Washington Post article suggesting widespread misuse of so-called “national security letters” (NSL) by the FBI was substantially false. A veritable parade of administration witnesses assured congressmen contemplating the re-enactment of the Patriot Act that stringent Justice Department supervision prevented it.

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NSLs are a potential police-state tool, essentially granting investigators sweeping powers previously enjoyed by such innovators in security as the Soviet KGB. Issued entirely without judicial oversight — no prosecutors, judges or grand juries — they allow the Feds a secret peek at intimate aspects of our lives.

“The records it yields,” wrote the Post’s Barton Gellman “describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.”

NSL recipients like banks and telephone companies are forbidden to notify customers that their records have been copied into FBI databases. Combined with widespread wiretapping conducted by the National Security Administration in clear defiance of the 1978 FISA law requiring warrants from a secret court, they render privacy rights all but nonexistent.

And here’s the beauty part: It’s all Top Secret. Nobody can contest these abuses in court because nobody can prove they have legal “standing.” It’s not just Orwell’s “1984” that needs frequent rereading, but Heller’s “Catch-22.”

So now we learn, courtesy of a report by the Justice Department’s Inspector General, that the Post’s 2005 series greatly understated the FBI’s systematic abuse of NSLs. Exactly as those periwigged Founding Fathers, having had their fill of arbitrary seizures and arrests under King George III, would have predicted. Unregulated executive powers not limited by courts or legislatures WILL be misused.




That’s why they designed a government of laws, not men, and why the cult of authority surrounding this White House, comprised equally of fundamentalist religious zeal and craven fear of terrorism, so endangers American freedom.

It seems the FBI’s been handing out NSLs like popcorn, at least 47,000 through 2005, often in cases bearing no relationship to national security whatsoever, and substantially without meaningful supervision.

The IG’s report documented serious abuses: “We found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” “Of just 77 files reviewed by the inspector general,” the Post noted, “17 — 22 percent — revealed one or more instances in which information may have been obtained in violation of the law.”

Furthermore, raw “intelligence” in FBI databases has been made available online to 34,000 government employees. I wonder how many are named Scooter Libby or Karl Rove? Possibly mindful of Libby’s fate, Glenn Greenwald points out on his Salon.com Web log, Justice Department apparatchiks have been writing Congress admitting that sworn assurances they gave in classified hearings have been rendered, um, inoperative.

Something we’ve also recently learned is that White House political operatives, including Rove, directly influenced the firing of eight GOP-appointed U.S. Attorneys — seemingly for the sin of prosecuting too many Republicans or not enough Democrats. Nationwide under the Bush administration, the ratio of Democrats to Republicans investigated is 7 to 1. It’d be interesting to learn exactly how many of Rove’s political enemies have been targeted by illegal NSLs.

Don’t expect the authoritarian Gonzales to inquire. Last January, the attorney general casually suggested during a Senate hearing that the right of habeas corpus, guaranteeing a fair trial to every American, might not exist. “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus,” he observed placidly. “It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.

How long before Gonzales reminds us that the word “privacy” doesn’t appear there, either?

(Arkansas Democrat-Gazette columnist Gene Lyons is a national magazine award winner and co-author of “The Hunting of the President” (St. Martin’s Press, 2000). You can e-mail Lyons at genelyons2@sbcglobal.net.)