John Whitehead's Commentary

It appears that we are witnessing a stealth enactment of the enormously unpopular "Patriot II" legislation that was first leaked several months ago. Perhaps the national outcry when a draft of the Patriot II act was leaked has led its supporters to enact it one piece at a time in secret. Whatever the case, this is outrageous and unacceptable.--Congressman Ron Paul, R-Tex.

To those who follow the workings of the American bureaucracy, one thing should be very clear: We the people have lost control of our government. Let me give you a stark example.

Rarely does the President sign a bill into law on a Saturday. In fact, the last time Bush did so was more than a year ago when he signed a spending bill to keep the federal government from shutting down.

But on Saturday, December 13, 2003, as Americans watched Saddam Hussein's head being probed for lice, President Bush signed into law a bill that grants the FBI, among other intelligence agencies, expansive new powers, including the power to probe Americans' financial records--even if they are not suspected terrorists.

Congress passed this latest legislation around Thanksgiving. However, reportedly in order to avoid individual accountability, the Senate passed it with a voice vote. Thankfully, there were some in the House of Representatives who voiced opposition. Betty McCollum (D-Minn.) proclaimed:

The Republican leadership inserted a controversial provision in the 2004 Intelligence Authorization Act that will expand the already far-reaching USA Patriot Act, threatening to further erode our cherished civil liberties. This provision gives the FBI power to demand financial and other records, without a judge's approval. This provision was included with little or no public debate, including no consideration by the House Judiciary Committee, which is the committee of jurisdiction. It came as a surprise to most Members of this body. It is clear that Republican Leadership and the Administration would rather expand on the USA Patriot Act through deception and secrecy than debate such provisions in an open forum.

A controversial, yet insidious, redefinition of "financial institution" was included in the Act at the last minute. The phrase, which previously referred to banks, was expanded to include stock brokers, car dealerships, credit card companies, insurance agencies, jewelers, airlines, the U.S. Post Office and the catchall phrase of any other business "whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters." As a result, the FBI now has even more power to snoop through your business records in so-called national security investigations without any court oversight and in almost total secrecy.

Under the Authorization Act, the FBI now has the power to subpoena business records of nearly every kind of financial transaction and conduct what is, in effect, a search and seizure without demonstrating probable cause that criminal activity is afoot. These subpoenas--termed "national security letters"--are secret. Thus, the recipient cannot even disclose having received one. And these subpoenas can be issued by relatively low-level bureaucrats without going to any court. The FBI merely has to certify that the information it seeks is "relevant" to a national security investigation. Anyone working in law enforcement knows how fluid the term "relevant" may be.

The only reason such administrative subpoenas have not previously posed a significant threat to civil liberties is that they have applied only to relatively narrow categories of records. That will all change with the expansive definition of the phrase "financial institution." Indeed, as the Washington Post reports, "The FBI, on the authority of individual supervisory agents, can now get any of these businesses to disclose its dealings with anyone if the bureau deems these records relevant to counterterrorism. This is more unchecked power than the agency ought to have."

And while we do know that the expansive powers found in the Intelligence Authorization Act use hundreds of millions of American tax dollars to fund the various intelligence agencies, the exact monetary figure remains classified and unavailable to the taxpayer.

The USA Patriot Act, passed and signed into law shortly after 9/11, gave the FBI wide-ranging power to seek a much broader category of "business records." However, this could only be done with the approval of a special court that authorizes surveillance in national security cases.

Opponents of such legislation claim that safeguards like judicial oversight and the Fourth Amendment, which prohibits unreasonable search and seizure, are essential to prevent abuses of power. Unfortunately, it seems that in the eyes of many government officials the safeguards of the Fourth Amendment to our Constitution have become passé.

Why are we witnessing such end-runs around our Constitution? First, there is a dangerous mentality that permeates the upper echelon of the American government. This is the notion that the government can push through its agenda, even if it undermines basic protections of the U.S. Constitution.

Second, those who supposedly represent us have developed an unnerving tendency to approve and vote for legislation that they do not study carefully. Then there are those in Congress who are mere sycophants of the administration in power and push through the administration's agenda without considering the fact that it is the people they represent, not the government.

Third, the media's lack of reporting on these key issues is sketchy. Oftentimes, very little is reported in the newspapers, press or national media on such controversial pieces of legislation.

Finally, we the people have too often not been involved in the governmental process and have failed to protest the increasing governmental encroachment on our fundamental freedoms. We often fail to even ask the important questions. As David Martin writes in the San Antonio Current, "If these new powers are necessary to protect United States citizens, then why would the legislation not withstand the test of public debate? If the new act's provisions are in the public interest, why use stealth in ramming them through the legislative process?"

Those who founded our country believed that the greatest menace to freedom was a politically inactive people. Silence by the people in the face of governmental misconduct will lead to the eventual destruction of the American democracy.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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