Wednesday, November 21, 2007

Shorn Sheep?

Before departing for a well-deserved holiday with his family, Pastor Jeff at Conblogeration wrote By any historical standard, we enjoy almost unimaginable levels of prosperity, comfort, safety, health and freedom.

Yes and no. Personal freedom has declined in recent years. As Judge Joseph Napolitano says in his recent Reason magazine interview:
The Patriot Act’s two most principle constitutional errors are an assault on the Fourth Amendment, and on the First. It permits federal agents to write their own search warrants [under the name “national security letters”] with no judge having examined evidence and agreed that it’s likely that the person or thing the government wants to search will reveal evidence of a crime.
Napolitano amplifies:
Not only that, but the Patriot Act makes it a felony for the recipient of a self-written search warrant to reveal it to anyone. The Patriot Act allows [agents] to serve self-written search warrants on financial institutions, and the Intelligence Authorization Act of 2004 in Orwellian language defines that to include in addition to banks, also delis, bodegas, restaurants, hotels, doctors' offices, lawyers’ offices, telecoms, HMOs, hospitals, casinos, jewelry dealers, automobile dealers, boat dealers, and that great financial institution to which we all would repose our fortunes, the post office.

So FBI agents can write their own search warrant with just the permission of their superior, no judge at all, nobody at the main Department of Justice, and serve it essentially on any entity they want, and if they serve this search warrant on your doctor, lawyer, grocer, or mailman, and that doctor, lawyer, grocer, or mailman tells you they received it, then that doctor, lawyer, grocer, or mailman, can be prosecuted for a felony, face five years in jail. What part of the First Amendment’s “Congress shall make no law abridging the freedom of speech” do they not understand?

This creates a Soviet-style conundrum for the recipient, who can’t even tell his or her lawyer or general counsel about getting the search warrant. You can’t hire outside counsel to challenge it, you can’t mention it to your spouse on the pillow, to your priest in confession—not even to a federal judge in a federal courtroom where all language except perjury should be permitted. This is a conundrum the likes of which government has never visited even under the Alien and Sedition Act. If they prosecuted you for criticizing [President John] Adams you could complain about it to your heart’s content without being charged with another crime.
We fought a war over 230 years ago in no small part because the American people then would not countenance the wholesale issuing of so-called "writs of assistance." The Revolutionary War. As Napolitano points out, we won then. We're losing now.

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