POLICE STATE: Patriot Act II -- The Legal Response

The story of the challenge against the Patriot Act begins with a small group of librarians in Connecticut. The Library Connection of Windsor battled the federal government for months over a demand from the F.B.I. to hand over patron records and e-mail messages. As it turned out, the justice department bungled the case – accidentally revealing in court records the secret information that it was seeking – and in the face of the librarians’ battle for privacy rights, the government relented.

An opinion piece in The Newtown Bee read, “Let’s hear it for a rugged bunch of two-fisted, tough-as-nails freedom fighters: America’s librarians.”

The Patriot Act was drafted, passed by Congress and signed into law by the President in a matter of only six weeks after  9/11. And the Library Connection of Windsor demonstrates that challenges to the law’s imposition on the civil liberties of everyday Americans won’t necessarily be waged solely by the typical arbiters of the First Amendment.

Interestingly enough, Attorney General Alberto Gonzalez earlier this year said, “In my view, many of the concerns about the Patriot Act are based on either misunderstandings or misinformation.” More, he said, “Over the past year, the Act has been the subject of more oversight and debate than any bill in recent memory – and all of the hearings, testimony, briefings, and meetings demonstrated that there has not been a single verified abuse of any of the provisions.”

And according to this clip, the attorney general conflates the current NSA programs with “wartime surveillance” of Presidents Washington and Lincoln. (Sorry Mr. Gonzalez, that’s a stretch, and one that won’t hold up in court.)

Fortunately, the assurances of a single attorney general does not constitutional a law make. The Connecticut librarians were a first example of a successful challenge to the Patriot Act. Second, the Supreme Court’s recent Guantanamo ruling, which struck down the President’s military commissions. The Washington Post wrote that the Court, “emphatically rejecting a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it.”

Simply because an attorney general or a president approves a law by no means makes that law constitutional.

No final word has been rendered on the sixteen parts of the Patriot Act.

From the Albany Law Review in 2004 regarding the legality of the Patriot Act: “As the war on terrorism progresses, it leaves one to wonder if the United States will continue to make a mockery of customary international law and Justice Gray’s famous words, “International law is part of our law . . .”

And from the Harvard Civil Rights-Civil Liberties Law Review: “The legislation resulting from the sunset hearings, whether it ultimately favors the House or the Senate bill, can plausibly be described as failing to reflect the concerns of a majority of the public about the wisdom of conferring so much surveillance power on the executive branch.”

The Patriot Act is very much in question.

(Photo from flickr.)