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Did the Gov. Grip the Glove?

‘Sneak n' peaks' & library leaks

December 30, 2010

After what some are calling the preventable terrorist attacks on American soil on Tuesday, September 11, 2001, American citizens lost a great measure of privacy along with certain liberties. Providentially, English author George Orwell predicted an oligarchical, collectivist society--a police state--in his 1949 novel, Nineteen Eighty-Four (or, 1984).

He predicted that in 1984 a totalitarian government ("Big Brother") would, among other things, use oppressive surveillance to watch everyone. Interestingly, the very private Michael Joseph Jackson sang chorus to the song Somebody's Watching Me, released January1984, by Kennedy William Gordy (a.k.a. Rockwell), son of music mogul Berry Gordy. (Michael's brother Jermaine Jackson, who was married to Berry's daughter Hazel at one time, provided backup vocals.)

In the song, Rockwell wondered if the mailman was watching him. In a twist of irony, the George W. Bush White House proposed that "mailmen" report suspicious activities to the authorities. While that proposal didn't ‘fly like an eagle,' the USA PATRIOT ACT (an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) permitted other Orwellian tactics, as some would describe them.

Others say the Act is necessary. The present article will present the rationale of a qualified proponent of the Act, while a future article will consider rebuttal arguments from an equally qualified Patriot Act opponent.

"Sneak n' Peak": John C. Yoo is a professor of law at UC Berkeley, and was an official at the Bush Justice Department when he authored parts of the Patriot Act. First, Yoo points out that "well-known liberal Democrats" like Senators Dianne Feinstein and Joe Biden "have dismissed the idea that constitutional freedoms are in danger." Yoo notes that Feinstein consulted the American Civil Liberties Union to see if there were any documented cases of abuse. "They had none," said Feinstein.

Second, Yoo says that if you're bothered by "a system of secret courts," "secret evidence," and "secret warrants" authorizing "secret search and/or surveillance of suspected terrorists without notice to the target," don't blame President Bush and the Republicans. "President Jimmy Carter and a Democratic Congress established them in 1978 in the Foreign Intelligence Surveillance Act (FISA)."

FISA created the Foreign Intelligence Surveillance Court (FISC). Why the secrecy? Because the government doesn't want terrorists to know that they're being investigated. To seek a warrant or debate the particulars of a probable case in open court would give terrorists an advantage on government agents, hence the need for secrecy.

Third, Yoo identifies Section 215 of the Patriot Act as "perhaps the most politically controversial provision." It "extends FISA warrants to business and other records that are relevant to a terrorism investigation." On the surface, Yoo asserts, this violates the Fourth Amendment guarantee against unreasonable searches and seizures.

But he counters that "individuals generally do not have a Fourth Amendment right over records about them held by someone else," that, "we have no general constitutional right to privacy over such documents because they are not in our possession. We have already lost our privacy rights by giving them to another person."

Governmental access to your records without notifying you is called the "sneak ‘n' peak" approach. Patriot Act proponents conclude that you shouldn't mind, if you don't have anything to hide.

Library Leaks: Should the government be notified if you check out certain books from the library? Yes says Yoo. "Al-Qaeda terrorists have used libraries to conduct research and to communicate, and their activities can be traced through credit-card receipts and travel reservations. Why provide terrorists with a safe haven in a library, or allow them to freely use the modern-day tools of terrorism: air travel, currency movements, and credit cards?" He argues that the government wants to go wherever terrorists are hiding, or wherever they're doing business. It's that simple.

If they've left a paper trail, "Big Brother" wants to be able to follow it to see where it leads. These efforts are done all in the name of protecting American citizens, key assets, and critical infrastructure. The terrorist paper trail is not a ‘happy trail' say proponents.

"Extension of FISA to such records seems eminently reasonable. Under FISA, the government can intercept e-mail, telephone calls, and even conversations by terrorist targets. It does not make sense to give the government such powers to fight terrorism, but then to exclude physical items and documents," argues Yoo. Convinced? Stay tuned for the rebuttal. Peace and blessings to all. Amen.