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The Patriot Act's--and the Senate's--Constitution Problem | The Nation

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John Nichols

John Nichols

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The Patriot Act's--and the Senate's--Constitution Problem

It has been almost six years since Wisconsin Senator Russ Feingold cast the lone vote in the Senate against the USA Patriot Act, warning at a time when few others had the courage to do so that the measure undermined the basic protections afforded Americans by a Constitution that has been severely battered by the Bush-Cheney administration.

Now, a federal court has confirmed Feingold's assessment--at least with regard to the atrocious National Security Letter (NSL) provision of the Patriot Act, which in the words of the American Civil Liberties Union "allowed the FBI to demand private information about people within the United States without court approval, and to gag those who receive NSLs from discussing them."

U.S. District Court Judge Victor Marrero, in a decision issued Thursday found that the gag power was unconstitutional because the statute prevented meaningful judicial review of gag orders by the courts. As such, Marrero determined, the Patriot Act violates the Constitution's First Amendment as well as its separation of powers provisions.

"In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association--particularly of expression that is critical of the government or its policies--a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes," wrote Marrero.

"As the court recognized, there must be real, meaningful judicial checks on the exercise of executive power," explained Melissa Goodman, an ACLU staff attorney on this case. "Without oversight, there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."

That is the point Feingold sought to make back in the fall of 2001, and again in 2005, when during reauthorization of the bill Feingold fought to address issues related to the NSLs and other unconstitutional components of the act. Nine senators joined Feingold in voting "no" to the final version of the renewed Patriot Act: Hawaii's Daniel Akaka, New Mexico's Jeff Bingaman, West Virginia's Robert Byrd, Iowa's Tom Harkin, Vermont's Jim Jeffords, Vermont's Patrick Leahy, Michigan's Carl Levin, Washington's Patty Murray and Oregon's Ron Wyden.

No senator of either party who is now seeking the presidency joined Feingold and the others in casting what Thursday's court decision confirms to have been the only Constitutionally-appropriate vote.

But, as Feingold notes, New York's Hillary Clinton, Illinois' Barack Obama, Connecticut's Chris Dodd, Delaware's Joe Biden and their presidentially-ambitious colleagues can still do the right thing.

"The federal court decision declaring the statute unconstitutional comes as no surprise. The Justice Department's Inspector General has already found that the NSL authorities have been seriously abused by the government, and now a federal court has found parts of those authorities unconstitutional," says Feingold. "Congress needs to fix the mess it created when it gave the government overly-broad powers to obtain sensitive information about Americans."

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John Nichols' new book is THE GENIUS OF IMPEACHMENT: The Founders' Cure forRoyalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use ofthe 'heroic medicine' that is impeachment with a call for Democraticleaders to 'reclaim and reuse the most vital tool handed to us by thefounders for the defense of our most basic liberties.'"

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