- Earlier this week when President Bush asked Congress
to re-enact the portions of the Patriot Act that are due to expire at the
end of next year, he provoked a critical review of this controversial law.
Those who believe that our freedoms are guaranteed and cannot be legislated
away by Congress remain committed to the repeal -- not the renewal -- of
this overreaching legislation.
- The Constitution prohibits invasions of privacy by the
government by denying it the power to engage in unreasonable searches and
seizures absent a warrant issued upon probable cause. Prior to Sept. 11,
2001, we could actually enjoy that right. But in October 2001, the Patriot
Act changed all this. In addition to other violations of the Constitution
which it purports to sanction, the Act authorizes intelligence agencies
to give what they obtain without probable cause to prosecutors; and it
authorizes prosecutors to use the information thus received in ordinary
criminal prosecutions. Even worse, the custodians of the records are now
prohibited from telling you that your records were sought or surrendered.
- This is more than just academic. If the government can
get evidence against you from your financial institution under the guise
of national security -- i.e., without a showing of probable cause -- but
use it in a criminal case against you, then the Constitution's guarantees
have been shredded. But you know that already.
- What most Americans don't know is that on Dec. 13, 2003,
the right to privacy suffered another serious blow. On that day, after
the capture of Saddam Hussein, President Bush signed into law the Intelligence
Authorization Act for Fiscal Year 2004. This statute expands the term "financial
institution" so as to include travel agencies and car dealers, casinos
and hotels, real estate and insurance agents and lawyers, news stands and
pawn brokers, and even the Post Office.
- Now, without you knowing it, the Justice Department can
learn where you traveled, what you spent, what you ate, what you paid to
finance your car and your house, what you confided to your lawyer and insurance
and real estate agents, and what periodicals you read without having to
demonstrate any evidence or even suspicion of criminal activity on your
part. And the government can now, for the first time in American history,
without obtaining the approval of a court, read your mail before you do,
and prosecute you on the basis of what it reads. (Of course, if the government
doesn't prosecute you, you'll likely never even know that it has invaded
- None of this was supposed to have happened. The tools
Congress gave to intelligence agencies are only constitutional when used
just for intelligence purposes -- like watching or deporting foreign spies
-- and only against genuine foreign threats. When criminal prosecution
is implicated, the Constitution's protections are triggered.
- Most Americans don't want the government to know of their
personal behavior, not because we have anything to hide, but because without
probable cause, without some demonstrable evidence of some personal criminal
behavior, the Constitution declares that our personal lives are none of
the federal government's business.
- Government is not reason or eloquence, George Washington
once said, it is force. That's why we have a Constitution: to restrain
the government's exercise of force so we can be a free people. Government
surveillance undermines freedom because it is natural to hesitate to exercise
freedom when the government is watching and recording. Numerous Supreme
Court decisions have underscored this by holding that freedom needs breathing
room. With the government's eyes in our hotel rooms, lawyers' offices and
mailboxes, freedom will suffocate.
- In his famous dissent in Olmstead, Justice Brandeis called
privacy -- which he defined as "the right to be let alone" --
"the most comprehensive of rights and the right most valued by civilized
men." Brandeis argued that the framers knew that Americans wanted
protection from governmental intrusion not only for their property but
also for their thoughts, ideas and emotions. Many current members of Congress
and the Justice Department, it would appear, disagree, since they have
continued their inexorable erosion of this most basic right.
- Mr. Napolitano, a judge of the Superior Court of New
Jersey from 1987 to 1995, is the senior judicial analyst with the Fox News