If You Want Your Country Back, Start With This

Senate Democrats have introduced legislation to scale back some of the worst abuses of both the Patriot Act and the FISA legislation from last year. Obama Administration officials were noncommital.

At hearings in the House and Senate, the officials repeatedly said they had no position yet on legislation that Democrats have introduced that would tighten standards and oversight of surveillance tools authorized under laws including the USA Patriot Act.

"We are trying to figure out whether the provisions that are suggested there will work for us as is, or perhaps with modifications," David S. Kris, assistant attorney general for national security, said at a Senate Judiciary Committee hearing Wednesday on whether to renew a trio of Patriot Act powers set to expire Dec. 31.

Those provisions allow investigators to use "roving wiretaps" to monitor suspects who may be trying to escape detection by switching cellphone numbers; obtain from third parties the business records of national security targets; and track "lone wolf" suspects who may not belong to a terrorist group but may be planning attacks.

I'm surprised they've even gone to the level of noncommital. Executives generally want to retain the power handed to them.

But it took a non-lawyer Senator named Al Franken to explain in plain English why the roving wiretap statute offends the conscience.

Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap a an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “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.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”

Yes, it is "surreal" that some politician would dare look to the Founding documents for guidance when determining whether the roving wiretaps statute violates civil liberties. I'm no originalist, but I don't think there's a ton of wiggle room in "the persons or things to be seized."

The truth is that, for all the pretty talk about exigent circumstances and "the war on terror" and the need to conduct investigations in secret, almost all Patriot Act "sneak and peek" requests, where warrants could be obtained to conduct secret searches without telling the subjects, had nothing at all to do with terrorism, but standard-issue federal drug cases. The mission creep here is obvious, and it's true on national security letters and roving wiretaps as well.

I'd be willing to overlook the regular-grade racism and general ugliness of the tea party crowd if they'd actually take a look at these examples of government overreach, and work with civil libertarians on the left to roll them back. The combination could be potent. Of course, the teabaggers aren't libertarians, they're glibertarians, who adored this kind of stuff in the Bush years when they were fighting "terrism."