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Published: Monday, 5/17/2004

Secrecy run amok

The USA Patriot Act, spawned by the 9/11 terrorist attacks, has proven to be government secrecy carried to its absurd, illogical, and dangerous conclusion.

Since the draconian statute was adopted in haste by Congress, we have secret snooping against citizens and noncitizens alike, and secret lawsuits in our courts that challenge that secrecy.

But, hey, no one can talk about any of this. It's all secret.

A perfect example: The American Civil Liberties Union filed a lawsuit April 6 challenging the constitutionality of a provision in the Patriot Act that allows the FBI to seize customer records from "electronic communication" service providers and other businesses without a court order.

Under terms of the law, the ACLU was prohibited from letting anyone know it had filed the lawsuit, which was submitted to federal court in New York under seal. It wasn't until April 28 that the judge allowed the group to divulge the lawsuit in a press release, which the Justice Department promptly censored because it contained the name of the judge, the schedule for submitting written arguments, and the type of information the government can seize under the Patriot Act.

What the government didn't want anyone to see - but what was revealed through the ACLU challenge - was this: "The provision [of the Patriot Act] under challenge allows an FBI agent to write a letter demanding the disclosure of the name, screen names, addresses, e-mail header information, and other sensitive information held by 'electronic communication service providers.'‚óŹ''

In a chilling Orwellian twist, the service providers are prohibited from telling anyone that the information has been provided to the government. That means that the subjects of the snooping never know their privacy has been invaded.

These intrusions are clear violations of the Fourth Amendment to the Constitution, as well as subsequent Supreme Court interpretations.

For those who have forgotten, the Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Searches and seizures without warrants and a showing of probable cause to believe a crime has been committed have no place in a democracy. Likewise, prohibiting the subject of a government seizure from revealing that it happened violates the First Amendment, which guarantees free speech.

Those concepts, firmly established over the past 200 years of American jurisprudence, now are being cast aside in the misguided belief that exceptions are required to wage a war on terrorism.

Casting a pall of secrecy over violations of these constitutional principles, as the Patriot Act does, only shows that now, when democracy is under attack, is when the law this nation was built on really matters most.



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