When the Government Demands Silence; Secret Search Warrants Violate First and Fourth Amendments
Byline: Andrew P. Napolitano, SPECIAL TO THE WASHINGTON TIMES
In 1798, when John Adams was president of the United States, the feds enacted four pieces of legislation called the Alien and Sedition Acts. One of these laws made it a federal crime to publish any false, scandalous or malicious writing Au even if true Au about the president or the federal government, notwithstanding the guarantee of free speech in the First Amendment.
The feds used these laws to torment their adversaries in the press and even successfully prosecuted a congressman who heavily criticized the president. Then-Vice President Thomas Jefferson vowed that if he became president, these abominable laws would expire. He did, and they did, but this became a lesson for future generations: The guarantees of personal freedom in the Constitution are only as valuable and reliable as is the fidelity to the Constitution of those to whom we have entrusted it for safekeeping.
We have entrusted the Constitution to all three branches of the federal government for safekeeping. But typically, they fail to do so. Presidents have repeatedly assaulted freedom of speech many times throughout our history, and Congress has looked the other way. Abraham Lincoln arrested Northerners who challenged the Civil War. Woodrow Wilson arrested Americans who challenged World War I. Franklin Roosevelt arrested Americans he thought might not support World War II. Lyndon Johnson and Richard Nixon used the FBI to harass hundreds whose anti-Vietnam protests frustrated them.
In our own post-Sept. 11 era, the chief instrument of repression of personal freedom has been the governmentAAEs signature anti-terrorism legislation, the Patriot Act. It was born in secrecy, as members of the House of Representatives were given 15 minutes to read its 300 pages before voting on it in October 2001, and it operates in silence, as those who suffer under it cannot speak about it.
The Patriot Act permits FBI agents to write their own search warrants and gives those warrants the patriotic and harmless-sounding name of national security letters (NSLs). This authorization is in direct violation of the Fourth Amendment to the U.S. Constitution, which says that the people shall be secure in their persons, houses, papers and effects from unreasonable searches and seizures, and that their security can only be violated by a search warrant issued by a neutral judge and based upon probable cause of crime.
The probable cause requirement compels the feds to acquire evidence of criminal behavior about the person whose records they seek, so as to prevent politically motivated invasions of privacy and fishing expeditions such as those that were common in the Colonial era. Judges are free, of course, to sign the requested warrant, to modify it and sign it, or to reject it if it lacks the underlying probable cause.
The very concept of a search warrant authorized by law enforcement and not by the courts is directly and profoundly antithetical to the Constitution Au no matter what the warrant is called. Yet, thatAAEs what Congress and President Bush made lawful when they gave us the Patriot Act. …