How Congress Has Assaulted Our Freedoms in the Patriot Act by Andrew P. Napolitano

Former judge Andrew P. Napolitano describes how our Fourth Amendment rights are being stolen away by our elected representatives.


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The compromise version of the Patriot Act... is an unforgivable assault on basic American values and core constitutional liberties. Unless amended in response to the courageous efforts of a few dozen senators from both parties, the new Patriot Act will continue to give federal agents the power to write their own search warrants – the statute’s newspeak terminology calls them "national security letters" – and serve them on a host of persons and entities that regularly gather and store sensitive, private information on virtually every American.

Congress once respected the Fourth Amendment until it began cutting holes in it...

The deepest cut came on October 15, 2001 when Congress enacted the Patriot Act. With minimal floor debate in the Senate and no floor debate in the House (House members were given only 30 minutes to read the 315 page bill), Congress enacted this most unpatriotic rejection of privacy and constitutional guarantees. Together with its offspring the Intelligence Authorization Act for Fiscal 2004 and the Intelligence Reform Act of 2004, the Patriot Act not only permits the execution of self-written search warrants on a host of new subjects, it rejects the no-criminal-prosecution protections of its predecessors by requiring evidence obtained contrary to the Fourth Amendment to be turned over to prosecutors and mandating that such evidence is constitutionally competent in criminal prosecutions.

The new version of the Patriot Act which the Senate will debate this weekend purports to make all of this congressional rejection of our history, our values, and our Constitution the law of the land...

Why would Congress, whose members swore to uphold the Constitution, authorize such a massive evasion of it by the federal agents we have come to rely upon to protect our freedoms? Why would Congress nullify the Fourth Amendment–guaranteed right to privacy for which we and our forbearers have fought and paid dearly? How could the men and women we elect to fortify our freedoms and write our laws so naïvely embrace the less-freedom-equals-more-security canard? Why have we fought for 230 years to keep foreign governments from eviscerating our freedoms if we will voluntarily let our own government do so?

The unfortunate answer to these questions is the inescapable historical truth that those in government – from both parties and with a few courageous exceptions – do not feel constrained by the Constitution. They think they can do whatever they want. They have hired vast teams of government lawyers to twist and torture the plain meaning of the Fourth Amendment to justify their aggrandizement of power to themselves. They vote for legislation they have not read and do not understand...

The Fourth Amendment worked for 200 years to facilitate law enforcement and protect constitutional freedoms before Congress began to cut holes in it. Judges sit in every state in the Union 24/7 to hear probable cause applications for search warrants. There is simply no real demonstrable evidence that our American-value-driven-constitutional-privacy-protection-system is in need of such a radical change.

A self-written search warrant, even one called a national security letter, is the ultimate constitutional farce. What federal agents would not authorize themselves to seize whatever they wished? Why even bother with such a meaningless requirement? We might as well let the feds rummage through any office, basement, computer, or bedroom they choose. Who would trust government agents with this unfettered unreviewable power? The Framers did not. Why would government agents bother going to a judge with probable cause seeking a search warrant if they can simply write their own? Big Brother must have caught on because federal agents have written and executed self-written search warrants on over 120,000 unsuspecting Americans since October 2001.

Is this the society we want? Have we ultimately elected a government to spy on all of us? The Fourth Amendment is the lynchpin of our personal privacy and individual dignity. Without the Fourth Amendment’s protections, we will become another East Germany. The Congress must recognize this before it is too late.

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How Congress Has Assaulted Our Freedoms in the Patriot Act by Andrew P. Napolitano