In an effort to draw attention away from the intelligence failures that permitted
the attacks of 9/11 and create the impression that it was doing something —
anything — to avoid a repeat, the federal government tampered seriously with
freedoms expressly guaranteed in the Constitution. Its principal target was
the right to privacy, which is protected in the Fourth Amendment.
At President George W. Bush’s urging, Congress passed the Patriot Act in October
2001. This 315-page statute passed the House of Representatives with no debate,
and there was very limited debate in the Senate. I have asked many members of
Congress over the years whether they read this bill before they voted upon it,
and I have yet to find a member who did. In the House, that would have been
impossible; the bill was made available to representatives only 15 minutes prior
to their vote.
This law permits FBI agents to write their own search warrants for business
records, and it has been used to induce the Foreign Intelligence Surveillance
Court to issue warrants on a made-up basis to read emails and listen to telephone
calls in real time. The members of Congress who voted for it were largely unaware
of the liberties they were sacrificing.
The personal liberties that Congress surrendered have been a necessary bulwark
against tyranny — the constitutional requirement of warrants as a precondition
to searching homes and records, with warrants based on probable cause and specifically
describing the place to be searched and the person or thing to be seized.
When Edward Snowden revealed the nature and extent of the domestic spying that
the government unleashed upon us post-9/11 and made us all aware of its use
of the Patriot Act to do so, the authors of the Patriot Act expressed outrage
and anger.
What was the government doing?