Senator Rand Paul (Ky.) released the following Dear Colleague letter to his fellow Senators on February 15, 2011 regarding the renewal of the USA PATRIOT Act.

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Dear Colleague:

James Otis argued against general warrants and writs of assistance that were issued by British soldiers without judicial review and that did not name the subject or items to be searched.

He condemned these general warrants as “the worst instrument[s] of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever w[ere] found in an English law book.” Otis objected to these writs of assistance because they “placed the liberty of every man in the hands of every petty officer.” The Fourth Amendment was intended to guarantee that only judges—not soldiers or policemen—would issue warrants. Otis’ battle against warrantless searches led to our Fourth Amendment guarantee against unreasonable government intrusion.

My main objection to the PATRIOT Act is that searches that should require a judge’s warrant are performed with a letter from an FBI agent—a National Security Letter (“NSL”).

I object to these warrantless searches being performed on United States citizens. I object to the 200,000 NSL searches that have been performed without a judge’s warrant.

I object to over 2 million searches of bank records, called Suspicious Activity Reports, performed on U.S. citizens without a judge’s warrant.

As February 28th approaches, with three provisions of the USA PATRIOT Act set to expire, it is time to re-consider this question: Do the many provisions of this bill, which were enacted in such haste after 9/11, have an actual basis in our Constitution, and are they even necessary to achieve valid law-enforcement goals?

The USA PATRIOT Act, passed in the wake of the worst act of terrorism in U.S. history, is no doubt well-intentioned. However, rather than examine what went wrong, and fix the problems, Congress instead hastily passed a long-standing wish list of power grabs like warrantless searches and roving wiretaps. The government greatly expanded its own power, ignoring obvious answers in favor of the permanent expansion of a police state.

It is not acceptable to willfully ignore the most basic provisions of our Constitution—in this case—the Fourth and First Amendments—in the name of “security.”

For example, one of the three provisions set to expire on February 28th—the “library provision,” section 215 of the PATRIOT Act—allows the government to obtain records from a person or entity by making only the minimal showing of “relevance” to an international terrorism or espionage investigation. This provision also imposes a year-long nondisclosure, or “gag” order. “Relevance” is a far cry from the Fourth Amendment’s requirement of probable cause. Likewise, the “roving wiretap” provision, section 206 of the PATRIOT Act, which is also scheduled to expire on the 28th, does not comply with the Fourth Amendment. This provision makes possible “John Doe roving wiretaps,” which do not require the government to name the target of the wiretap, nor to identify the specific place or facility to be monitored. This bears an uncanny resemblance to the Writs of Assistance fought against by Otis and the American colonists.

Other provisions of the PATRIOT Act previously made permanent and not scheduled to expire present even greater concerns. These include the use and abuse by the FBI of so-called National Security Letters. These secret demand letters, which allow the government to obtain financial records and other sensitive information held by Internet Service Providers, banks, credit companies, and telephone carriers—all without appropriate judicial oversight—also impose a gag order on recipients.

NSL abuse has been and likely continues to be rampant. The widely-circulated 2007 report issued by the Inspector General from the Department of Justice documents “widespread and serious misuse of the FBI’s national security letter authorities. In many instances, the FBI’s misuse of national security letters violated NSL statutes, Attorney General Guidelines, or the FBI’s own internal policies.” Another audit released in 2008 revealed similar abuses, including the fact that the FBI had issued inappropriate “blanket NSLs” that did not comply with FBI policy, and which allowed the FBI to obtain data on 3,860 telephone numbers by issuing only eleven “blanket NSLs.” The 2008 audit also confirmed that the FBI increasingly used NSLs to seek information on U.S. citizens. From 2003 to 2006, almost 200,000 NSL requests were issued. In 2006 alone, almost 60% of the 49,425 requests were issued specifically for investigations of U.S. citizens or legal aliens.

In addition, First Amendment advocates should be concerned about an especially troubling aspect of the 2008 audit, which documented a situation in which the FBI applied to the United States Foreign Intelligence Surveillance Court (FISC) to obtain a section 215 order. The Court denied the order on First Amendment grounds. Not to be deterred, the FBI simply used an NSL to obtain the same information.

A recent report released by the Electronic Frontier Foundation (“EFF”) entitled, “Patterns of Misconduct: FBI Intelligence Violations from 2001-2008,” documents further NSL abuse. EFF estimates that, based on the proportion of violations reported to the Intelligence Oversight Board and the FBI’s own statements regarding NSL violations, the actual number of violations that may have occurred since 2001 could approach 40,000 violations of law, Executive Order, and other regulations.

Yet another troublesome (and now permanent) provision of the PATRIOT Act is the expansion of Suspicious Activity Reports. Sections 356 and 359 expanded the types of financial institutions required to file reports under the Bank Secrecy Act. The personal and account information required by the reports is turned over to the Treasury Department and the FBI. In 2000, there were only 163,184 reports filed. By 2007, this had increased to 1,250,439. Again, as with NSLs, there is a complete lack of judicial oversight for SARs.

Finally, I wish to remind my colleagues that one of the many ironies of the rush to advance the PATRIOT Act following 9/11 is the well-documented fact that FBI incompetence caused the failure to search the computer of the alleged 20th hijacker, Zacarias Moussaoui. As FBI agent Coleen Rowley stated, “the FBI headquarters supervisory special agent handling the Moussaoui case ‘seemed to have been consistently almost deliberately thwarting the Minneapolis FBI agents’ efforts” to meet the FISA standard for a search warrant, and therefore no request was ever made for a warrant. Why, then, was the FBI rewarded with such expansive new powers in the aftermath of this institutional failure?

In the words of former Senator Russ Feingold, the only “no” vote against the original version of the PATRIOT Act,

“[T]here is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America.”

I call upon each of my Senate colleagues to seriously consider whether the time has come to re-evaluate many—if not all—provisions of the PATRIOT Act. Our oath to uphold the Constitution demands it.

Sincerely,

Rand Paul, M.D.
United States Senator

I’ve been thinking about the horrid situation at airports for weeks, and before that for even more months

Flyers now have the option enforced against them of either being scanned or groped. What a choice!

I haven’t flown in an airplane for years now. The last time was when I attended a conference at the Mises Institute in Alabama. I have been lucky. I didn’t need to fly or want to fly, but I still may feel I have to, and I am still deeply troubled by the scanning and groping. Both are despicable.

What I wish is that all flyers would organize and boycott all flying, or organize sit-down strikes at all the airports on a given day and hour, or organize some sort of widespread protest action or actions at specific times so as to make known their true inner feelings.

This hope banks on the notion that people now put up with the scanning and groping because they feel they have no alternative as individuals. I may be wrong. They may support it or feel it’s in their safety interest. I don’t know, but I can only express my own personal distaste for what air travel has come to and hope that someone better equipped to organize protests than I will do so. Such protests should be accompanied by publicized demands to end this travesty.

Stop it! Stop it now! Stop searching every traveler! Stop searching innocent people!

Stop searches that have no reasonable basis. Stop searches that are based only on one criterion: that the person is a traveler. What kind of reasonable basis for a search is that? None whatsoever! It is totally unreasonable to suspect everyone! It is totally unreasonable to suspect everyone who is a traveler. It’s unreasonable for the obvious reason that we all know that not one person in sixty million is a terrorist, and not one in six hundred million is at the point of trying to board a plane with an explosive device hidden on his person.

Groping and scanning are both searches. Both are equally vile. Both are unreasonable searches. Both need to be rejected.

Why should I submit to a search? What have I done to merit that? What criminal record have I accumulated in my 70 years? When have I uttered a threat against an airline? When have I encouraged anyone to blow up an airplane?

Where’s the probable cause? Where’s the reasonable basis to grope me, frisk me, x-ray me, or otherwise invade my person or property? There is none.

Where’s the warrant obtained from a judge? There is none.

It’s totally ridiculous to be searching me. I won’t stand for it. I am being assumed to be a criminal suspect for no good reason whatsoever. The people engaging in the criminal behavior are the searchers in this case, not the searchees.

I speak personally, but of course the same is true of millions upon millions of other people. What have they done to merit a search? Absolutely nothing. Nada.

There is such a thing as a U.S. Constitution, although adherence to it is zilch. It once meant something, and the government still claims it means something. What a bunch of liars and hypocrites they are. They deserve no respect. They deserve nothing but scorn. How can they conduct such searches of millions of innocent people in the face of the constitutional language?

The Fourth Amendment reads

“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.”

There is no ambiguity here. The right to be secure in my person shall not be violated. Period. It doesn’t say that airports are an exception. Or that public roads are an exception. Or that public spaces are an exception. There are no exceptions listed.

If exceptions are allowed, such as supposedly to create safe air travel, then similar exceptions can be allowed for rail, bus, auto, and pedestrian traffic anywhere, anytime, and at virtually any place. Police state, folks. That’s what we’re talking about. Police state. We’ve got it. Now. Here and now. Don’t look now, it’s here already.

Am I an expert on the case law of searches? Have I read all the pertinent Supreme Court cases that develop exceptions and procedures and interpret the Constitution? No. I won’t waste any more time on such a fruitless endeavor. I did that for the case of America’s money. I did that in excruciating detail over the course of two solid months. I found, as have others before me, that the Supreme Court is perfectly capable of making things up as they go along. They have twisted the clear constitutional language to suit themselves and their own ideas. We cannot quietly submit to what the Supreme Court says. We must protest when conscience and reason tell us that the Court is in the wrong.

I demand the termination of these unreasonable searches and I urge you to demand the same. Boycott air travel, or else dream up some better manner of protest than I can think of. But don’t sit still for this. It’s not right, and you know it’s not right. It’s not lawful, and you know it’s not lawful. It’s mass insanity, and you know it’s mass insanity.

Michael S. Rozeff [send him mail] is a retired Professor of Finance living in East Amherst, New York. He is the author of the free e-book Essays on American Empire.

Copyright © 2010 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

Why this Conservative Tennessean Opposes REAL ID

1. REAL ID is a de facto national identification card. At least Lamar Alexander, in recent comments, was honest enough to admit this. Has America sacrificed so much for freedom only to create a “papers please” society?

2. REAL ID does an end-run around the 4h Amendment: “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.”

It is unreasonable to give the central government the power (potential) to track individuals in real-time. If the government needs to search a citizen, let it get a search warrant. We should not have to be monitered. Is not this the essence of freedom? REAL ID, and its future additions, will make life subject to the good-will of the government in a software maze of “red light, green light.” This is not freedom.

3. REAL ID reduces God-given rights of the individual to a string of digits, subject to the good-will of software and/or bureaucrats. It makes Americans get “permission” to live and move in the basic functions of society: banking and travel. The permission we need to do this (and more) is God-given. We shouldn’t have to ask permission to be functioning citizens within our own country.

4. REAL ID may require biometrics at the state level or at the federal level. Why should Americans be “booked” like criminals even if they’ve committed no crime?

5. REAL ID compiles much personal information into one place. With the ease of internet access, this information is vulnerable to anyone on the globe with the ability hack.

6. REAL ID is a move towards the centalization of more power. In an age of terror, the country should operate on a philosophy of de-centralizing as much of our lives as possible–so that if an attack handicaps one part of the country, the rest of the country can still function.

7. The burden of proof lies on promoters of REAL ID. Show us exactly HOW this significantly new and immense power to the government is NOT a threat to freedom. FREEDOMS ARE LOST IN THEORY/PHILOSOPHY LONG BEFORE THEY’RE LOST IN PRACTICE. Conservatives are threatening freedom and promoting “big government” with the REAL ID Act.

8. We should be moving away from an identification society. This kind of atmosphere promotes suspicion and fear. Are Americans innocent until proven guilty or are we suspicious until properly identified?

9. Programs like REAL ID never remain static. The private sector will seek to use this identification system as well. One bad application will lead to others. How can we remain an “open” society with this kind of philosophy?

10. Some folks say we already have a national id–Social Security. But if REAL ID is only a lateral move, why are we doing it? We are doing it because it is indeed an increase in the government’s ability to track its citizens. If we’re on the wrong road, the soonest way to progress is to turn around.

We don’t have to do anything stupid. Just because we “can” doesn’t mean we “should.”

Tennessee [and all of America] should Just Say NO to REAL ID.

by John Rush, who grew up in central Kansas and went to a small college in Florida to study for the ministry. John has pastored a church in Hailey, ID, and has served as a Christian School administrator in Newport, TN. He is currently pastoring Liberty Church of Cosby in Cosby, TN. John is a conservative republican who believes that people ought to love all ten amendments in the Bill of Rights. He welcomes feedback through his blog at http://realidwatch.blogspot.com.