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The Fourth Amendment and the PATRIOT Act:
Your Right to Privacy at Risk

It's ironic that in times of war, when we send off our young people to kill or be killed, we always say that we are sending you to sacrifice yourselves (and whoever else is on the receiving ends of those bullets) to preserve our rights, our way of life, our essential freedoms. Ironically, in these times of war that our rights are in the most danger.

In essence, we are fighting two wars. One of them is the razzle-dazzle shock and awe Iraqi war that we see on the TV and in the newspapers. But the most dangerous one started on September 11th, because it started with what our President called a "war on terrorism." We can figure out when the war in Iraq is over. We're not able to figure out when this war on terrorism is over. The PATRIOT Act was enacted in response to this war on terrorism, against an undefined enemy, against people from all over the world, with no way of determining when the war is won.

The rights that President Bush and Attorney General John Ashcroft claim to be fighting for - or sending someone else to fight for, more accurately - are important rights. They were put in our Constitution centuries ago by some true patriots who thought they would start in this country an experiment in democracy that was unlike any other government in the world at that time. In many respects that has been a beacon to a lot of peoples in other countries. One of the first things the founders did, after forming the basic structure of government, was to enact a Bill of Rights, a list of rights that the citizens would not give up to the government. In fact, some states would not ratify the Constitution unless a citizen's Bill of Rights was included.

There are several very important provisions in the Bill of Rights. The First Amendment guarantees us the right to express ourselves freely, without any adverse action by government. The Fifth and Sixth Amendments provide the right to a fair trial, to know what the charges are, to have an attorney, to have a jury decide whether or not you are guilty. The Fourth Amendment protected the right of privacy.

Some founders understood that people who will give up a little liberty to gain a little security will eventually lose both and deserve neither. The Fourth Amendment says that people should be free from unreasonable searches and seizures. For hundreds of years that Amendment has guaranteed that the government can't go invading our privacy without going to a judge and showing what is termed "probable cause." It has to show that there's probably something that the government is entitled to before it can go into someone's house, pockets, or papers.

In recent years we've seen erosion as the law has tried to adapt to electronic invasions of privacy. In the late '60s, federal agents used a sensitive eavesdropping device to overhear someone talking in a phone booth. The Supreme Court said the Constitution protects people's privacy, not places. If the government wants to eavesdrop, it has to get a warrant. A wiretap statute was enacted, largely to allow the government to use wiretaps. But the law recognized the Fourth Amendment protection and required that if the government wants to tap your phone, it has to go to a judge and show cause.

In 1978, the Foreign Intelligence Surveillance Court was created by the Foreign Intelligence Surveillance Act (FISA). The government only had to show that somebody worked for a foreign government to get the warrant to wiretap. That's a partial invasion of privacy, but nothing like we've seen with the PATRIOT Act.

This Act has a number of provisions that infringe on what the Fourth Amendment is all about. To see if there is any foreign intelligence information justifies getting this FISA warrant without showing probable cause.

Another provision is a new creature. It used to be that when the police officer came knocking on your door with a search warrant, he would say, "I'm officer so-and-so. I have a warrant to search your home. Here it is." In FISA, there are "sneak-and-peeks." They can sneak in your house, and look through your drawers and property, and sneak out again, and not let you know they were there. Under FISA, they can petition for extended periods of time of not even letting you know that your privacy has been invaded.

The PATRIOT Act at least went through Congress, although the records reflect there was little or no debate and it hurriedly passed. But, what's even worse than the PATRIOT Act is what they are doing to other provisions of our Constitution.

In Guantanamo Bay, there are 600 people from 47 countries being held indefinitely, with no charges, with no right to an attorney, with no right to a trial, simply because our Commander in Chief said, "I declare these people enemy combatants." Someday some of them will have a trial. But the trial will not be the one in the Constitution, with a jury, and proof without a reasonable doubt, with the presumption of innocence. No, it will be an ad hoc military tribunal with secret trials that we don't get to observe. It can be a majority, not unanimous, verdict, with no review by any court.

It's not just the foreigners who are being deprived of their rights. Hamdi is an American citizen, captured overseas, but brought back here. He's been in prison for almost a year without any charges. He has not been allowed to have his family or an attorney visit him. He does not have the right to have his situation reviewed under what is called a Habeas Corpus writ because the government has declared he is an unlawful combatant. He's not even entitled to the Geneva Rules of War.

Padilla is an American citizen arrested in Chicago. They don't have to show any evidence that he was making a dirty bomb, they aren't bringing him to court because he's been declared an unlawful enemy combatant, even though he's an American citizen.

The Moussaoui case involves the supposed other 9/11 bomber. They've actually filed charges against him; he was their showcase trial. Moussaoui says he wasn't it on it. His proof is in Guantanamo Bay where the government is holding the mastermind, in addition to three others who he says can back him up. Moussaoui wants one of these witnesses to verify he wasn't in on it. The judge ordered the government to let him talk through counsel to one of those men. The government has appealed to the Court of Appeals, saying they couldn't let anybody talk to these people because they are being interrogated. For a year and a half they've been interrogated. But what the government said next was even worse. It said if the courts give Moussaoui access to these witnesses, the government will simply dismiss these criminal charges and take him to Guantanamo Bay. That would end any kind of due process for him.

If the President of the United States or any human being can declare unilaterally that someone is guilty, then the Bill of Rights is meaningless for all of us.

I've had some Iraqi refugees in my office, as part of this big sweep of interrogations by the FBI. A family came to see me. The father had been a political prisoner of Saddam Hussein and had escaped from Iraq. He came to our country, because he said, "I believe in what you people believe in. You hold yourselves out as believing in the rights of the citizens, and I brought my family here." And then he said, "You know, I worry for country now. I worry for your country."

John Ashcroft, before the United States Senate, said the people who are criticizing the PATRIOT Act are giving aid and comfort to the enemy. I think we ought to be true to those immigrants who came to this country because they thought it stood for something. I think a true patriot will stand up for his rights. I think a true patriot will stand up for somebody else's rights. And a true patriot would tell John Ashcroft and George Bush where to stuff that PATRIOT Act.

— Charles Daniels


Charles W. Daniels is a civil and criminal defense lawyer in Albuquerque, New Mexico. He is an Adjunct Professor of Law (Evidence and Trial Practice, Advanced Criminal Procedure), University of New Mexico School of Law, and in addition he does Continuing Legal Education (CLE) presentations around the United States. Mr. Daniels is a Fellow with the Roscoe Pound Foundation and a Member of the New Mexico Supreme Court Rules of Evidence Committee.


For further information:

Charles W. Daniels
Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A.
20 First Plaza, Suite 700
Albuquerque, New Mexico 87102
(505) 842-9960
fax: (505) 842-0761

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"For as adamant as my country has been about civil liberties during peacetime, it has a long history of failing to preserve civil liberties when it perceived its national security threatened. This series of failures is particularly frustrating in that it appears to result not from informed and rational decisions that protecting civil liberties would expose the United States to unacceptable security risks, but rather from the episodic nature of our security crises. But it has proven unable to prevent itself from repeating the error when the next crisis came along."
--Supreme Court Justice William Brennan
December 22, 1987



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