by Nat Hentoff, CATO

While battling the FBI’s expanded surveillance guidelines, Sen. Russ Feingold, D-Wis., also revealed (Daily Kos, Oct. that in the Senate Judiciary Committee review of the Patriot Act (also Oct. 8), Republicans protecting the Act were joined, in a closed-door classified session, by Obama officials with amendments further preserving it. Then, in a public session, all but three Democrats voted for a watered-down “compromise” bill by Patrick Leahy and Diane Feinstein.

Feingold, Dick Durbin, D-Ill., and new Democrat Arlen Specter (Pa.) had the constitutional courage to oppose the Judiciary Committee bill eventually going to the floor that with few exceptions, leaves the Patriot Act intact. I’ll be reporting on the crucial fight to bring the Bill of Rights back into the Patriot Act as Senate and House versions merge into a law to be signed by Obama as he continues the Bush-Cheney legacy.

It was Feingold who, in October 2001, was the only member of the Senate to vote against the original Patriot Act as, on the floor, he accurately predicted our greatly weakened privacy, due process and other rights since then.

He is not giving up. “In the end,” Feingold says. “Democrats have to decide if they are going to stand up for the rights of the American people” or (for recent example) “allow the FBI to write our laws.”

As I have reported, the FBI is already writing our laws — without going to any judge. How much have you seen about the FBI’s locking up of the Fourth Amendment on cable and broadcast television (from the right- or the left-leaning stations) in newspapers, on the Internet or, of course, from the Democratic Congressional leadership, Harry Reid and Nancy Pelosi, characteristically indifferent to the Bush-Cheney-Obama assaults on the Bill of Rights?

As James Madison warned, “A people who mean to be their own governors must arm themselves with the power knowledge gives.”

When were the first FBI guidelines on domestic surveillance and why? In the 1970s, Sen. Frank Church of Idaho, chairman of a Senate Committee on Intelligence Activities, exposed FBI Director J. Edgar Hoover’s COINTELPRO (Counter-intelligence Program) as an omnivorous surveillance operation that aimed squarely at preventing Americans “exercise of First Amendment rights of speech and association.”

If Big Brother is always watching you, you become careful of what you say and with whom you associate.

The Church committee’s revelations resulted in the then-attorney general, Edward Levi (a former professor of constitutional law), and Congressman Don Edwards formulating the first FBI guidelines specifically faithful to the Constitution.

When I was reporting on Edwards’ congressional service (1962 to 1995), I often described him as the “The Congressman from the Constitution.” As chairman of the House Subcommittee on Civil and Constitutional Rights, Edwards, a former FBI agent, set standards for congressional oversight of the FBI.

Under Presidents George W. Bush and Barack Obama, these standards have become obsolete.

I commend to every member of Congress and their constituents what Edwards said in 1975 about the Church committee’s newly disclosed unbounded, warrantless standards of FBI surveillance of Americans who might “threaten” national security. And compare the Don Edwards’ definition of fundamental American civil liberties with those of present Attorney General Eric Holder and FBI Director Robert Mueller — and their astonishingly permissive standards of FBI accountability.

“No federal agency,” said Congressman Edwards, “the CIA, the IRS, or the FBI, can be at the same time policeman, prosecutor, judge and jury. That is what constitutionally guaranteed due process is all about. It may sometimes be disorderly and unsatisfactory to some, but it is the essence of freedom.”

The Constitution, Edwards continued, does not permit “federal interference” with Americans’ speech or associations, and other such citizen constitutional rights, “except through the criminal justice system, armed with its ancient safeguards.” Like mandated judicial supervision — absent from current Obama administration FBI surveillance guidelines.

Edwards regarded as “subversive” the “notion that any public official — the president or a policeman — possesses a kind of inherent power to set aside the Constitution whenever he thinks the public interest, or ‘national security’ warrants it.”

Don Edwards represented the Constitution we are losing.

On Aug. 10, 2002, in Washington, Don Edwards received the American Bar Association’s Thurgood Marshall Award for his “unswerving devotion to the Constitution and its values throughout his career.”

How many present members of Congress do you believe qualify for that award? Any of the Senate or House members representing you? Unhesitatingly, I nominate Sen. Russ Feingold of Wisconsin.

It was in 2002 that I asked Don Edwards what he thought of the then Bush-Cheney definition of the Bill of Rights. “Locking people up,” he began, “citizens or noncitizens, without being charged and without access to a lawyer is wrong.” But our Nobel Prize-winning President Obama is seriously considering “permanent detention” of terrorism suspects who cannot be tried in court because of the tortures they have undergone under American custody. This same president does not object to the current warrantless FBI surveillance of Americans without evidence, for reasons of “national security.” Would you give Obama a Liberty Medal?

by Robyn E. Blumner

You remember the USA Patriot Act, don’t you? It was that 342-page bill that sped through a supplicant Congress within weeks of 9/11, dismantling our privacy rights like a castoff Hollywood set. A reauthorization in 2006 made some things better and some worse, but mostly the law stayed the same — really bad for American freedom.

Well it is time to revisit this act of congressional cowardice that vastly expanded the ability of the government to unjustly intrude on our private lives. Three provisions will expire by the end of the year, which means Congress will have to act.

The Senate Judiciary Committee debated a reauthorization bill on Thursday offered by committee Chairman Patrick Leahy of Vermont, and Sen. Dianne Feinstein of California. The measure falls short of resurrecting our shattered liberties, but it is a start.

You would think that with solid Democratic majorities in Congress, the Patriot Act’s unleashing of FBI surveillance on innocent Americans would finally be redressed. But the fear among lawmakers is palpable that doing anything to return a constitutional balance to domestic spying operations will play badly come election time.

I can see the Dittoheads now on the one hand demanding that big government stay out of providing health insurance options, while on the other hand insisting that Big Brother be allowed to continue to peer into the financial, travel, communications and library records of anyone it wants with little or no evidence of wrongdoing. Principled consistency has never been one of their strong suits.

Here are the sections of the act that will expire:

• John Doe Roving Wiretaps. Under the act the FBI can go to a secret court under the Foreign Intelligence Surveillance Act and obtain a single warrant to tap multiple communications devices. But unlike a roving wiretap in a criminal investigation, the Patriot Act doesn’t require the government to identify the target or the devices to be tapped. By leaving these details wide open, the warrant’s execution is left entirely to the discretion of government agents, inviting privacy invasion and abuse.

• Lone Wolf. This provision allows the government to obtain a FISA warrant when the target is not connected to an international terrorist group or a foreign nation. The idea is that a foreign terrorist might be acting alone. But when a terror suspect has no ties to international terrorism the investigation looks quite a bit more like a criminal matter that can be handled through regular constitutional processes. Besides, the Justice Department has said that this authority has never been invoked. It’s obviously not needed.

• Section 215 or the Library Provision. This is perhaps the best known part of the Patriot Act. It allows the government to go to the FISA court for “any tangible thing” relevant to a terror investigation — including library records. The provision is incredibly broad, allowing the government to demand huge quantities of records that don’t have to pertain to the target of the investigation. It is an authorization for the FBI to sweep up and permanently store all sorts of personal details about people not suspected of doing anything wrong.

Even so, the FBI has been eschewing Section 215 orders preferring instead to use another gift of the Patriot Act, National Security Letters, as a way to bypass any judicial oversight. In 2008 there were only 13 requests for Section 215 orders, while in 2006 (the last figure available) there were 49,425 NSLs issued by the FBI, up from 8,500 in 2000.

NSLs are secret demand letters that can be internally created without court review. The Patriot Act reduced the standard to issue one and extended their reach. As long as the FBI claims the information sought is “relevant” to a terror investigation NSLs can collect volumes of personal financial records, credit reports, Internet searches and other sensitive information about Americans who are not suspected of anything.

The NSL provisions will not expire at the end of the year — they are permanent — though Leahy’s legislation would put limits on NSLs after four years.

The passage of the Patriot Act was an American tragedy, one that can largely be undone with a little political backbone. This is where the Democrats in Congress can earn their keep. But will they?