Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

a section of the Patriot Act amended FISA to authorize roving wiretaps. Roving wiretaps are in essence warrants that are not required to specify each common carrier or third party involved in the court order. The roving wiretaps allow for taps on a multitude of computers or telephones, rather than requiring that the secret court “warrant” specify the computer or telephone.10 So, the government can request that all of the computers at the New York Public Library be put under surveillance, and that would be more than specific enough for the FISA “court.”

Another tragic aspect of the Patriot Act is that it grants federal judges powers outside their geographic jurisdictions and permits them to authorize wiretaps on a national level.11 How can judges have power in geographic areas where they do not sit and thus do not have lawful jurisdiction? The whole purpose of geographic jurisdiction (a federal judge in Newark generally lacks jurisdiction over persons in Los Angeles) is to facilitate access to courts. If the judge in Newark authorizes a wiretap in Los Angeles, should the targets of the wiretap need to travel three thousand miles to challenge it? No; before the Patriot Act. Yes; since it became law.

Sneaking Away from Liberty

As if the almost complete reduction of a probable cause requirement were not enough, the new secret court FISA warrants also breach another constitutional requirement, that of notice. Fourth Amendment jurisprudence has had a long-standing practice of serving the warrant before a search could begin. The notice requirement ensured that an innocent person could look over the warrant and point out any mistakes so that wrong houses were not searched as well as assuring that only those things that were permitted to be searched were searched and the police did not expand their boundaries. The Patriot Act changes that, permitting the government to avoid notifying the owner for a month after the search, through showing only that there is “reasonable cause to believe” that notice could potentially “seriously jeopardize an investigation.”12

These are called sneak-and-peak warrants, and the Patriot Act is the first “express statutory authorization” for this type of warrant.13 The Patriot Act requirement in essence then dismisses notice without a second thought, as any four-year-old could come up with a reason that giving notice to a criminal suspect could maybe put the investigation in jeopardy.

A federal district court judge once warned that sneak-and-peek warrants “constitute . . . a dangerous and radical threat to civil rights and to the security of all our homes and persons.”14 This was in 1986, when sneak-and-peek warrants were only permitted by the courts in limited and distinct situations where the danger was extreme, palpable, and imminent. With the changes made by the Patriot Act, sneak-and-peak warrants will soon become standard issue. And because the records for these FISA court warrants are confidential, the public cannot scrutinize them. Even when the ACLU sued under the Freedom of Information Act to compel the federal government to reveal statistical information with regard to various Patriot Act provisions, including sneak-and peek-warrants, the court held that such information could be withheld on the grounds of national security.15

And it was on grounds of that ever-comforting phrase, national security, that an American attorney was detained for over two weeks by the federal government by mistake. Brandon Mayfield was an attorney who performed pro bono work with the Modest Means Program, which provided attorneys at reduced-rates for low-income clients. Brandon had had the misfortune to fall in love and marry an Egyptian woman, and, thereafter, he converted to Islam. Life was going well, and the happy couple had three children.

Then disaster struck when the federal government made a giant mistake and thought it matched the fingerprints found on a backpack in the rubble of the 2004 Madrid train bombing to Brandon. After the FBI authorized itself to enter his house and wiretap his phones, he was arrested on a material witness warrant, all based on a faulty fingerprint match whose accuracy the FBI lied about.

Brandon was held for two weeks, without access to his family and only limited access to an attorney. Only when multiple efforts by Spanish authorities to alert the FBI that they did not think the fingerprints were Brandon’s did he get his day in court, where the case against him was dismissed. The FBI apologized for its mistake but never admitted to any misuse of the Patriot Act. Brandon filed a lawsuit, and U.S. District Judge Ann Aiken in Eugene, Oregon, held that certain provisions of the Act were unconstitutional. The federal government has of course appealed and continues to enforce the provisions found unconstitutional.

National Security Letters:

The New Judge-Proof Warrant

How did the FBI bypass the Fourth Amendment to the Constitution its agents swore to uphold and authorize itself to break into Brandon Mayfield’s home and wiretap his telephones and eventually arrest him based on a lie? Well, another aspect of the Patriot Act that has been horrific in application is the National Security Letter or NSL. Though it may not sound threatening, the NSL is in essence a search warrant, but one that requires no probable cause or judicial oversight and that allows for any federal agent to request any and all of your personal records.16 Prior to the enactment of the Patriot Act, NSLs were only authorized to be used to investigate those suspected of being spies and had to be issued by very senior officials. Now almost every federal agent can use them against aliens and citizens alike without showing probable cause of crime to a federal district judge and without showing probable cause to believe that the target is suspicious and a foreigner to the secret FISA court.

It does not matter whether the target of the NSL has ever even been suspected of terrorist or simply criminal activity. So think about the people you have lived next door to, attended school with, worked with or in any other way met for any period of time. If