A recent report published by Gun Owners of America gave an in-depth summary of a new expanded version of the USA Patriot Act. The Domestic Security Enhancement Act of 2003 (DSEA) gives even more broad new powers to the federal government.

The GOA report states, "Our analysis suggests that, rather than toughening our ability to capture and kill Osama bin Laden and his ilk, this bill would instead rely on cosmetic 'solutions' which threaten the constitutional rights of Americans, without increasing our national security. In fact, this placebo will probably make our country considerably less secure."

The report lists several problematic portions of the new bill including:

• The government could bug, wiretap, or search anyone in America for up to 15 days without going to any court.

• The government could seize personal information about Americans (including credit information, educational transcripts, etc.) in a wide range of circumstances without the approval of any court.

• Individuals and groups which advocate Second Amendment rights could be classified as "foreign powers" and subjected to electronic surveillance for up to one year without the approval of any court.

• DSEA could allow members and supporters of gun rights organizations to be stripped of their citizenship, arrested and held indefinitely without charges, here or abroad, in secret at a secret location without access to an attorney or benefit of constitutional protections.

• Allows the federal government to create and sustain a DNA database of "suspected" terrorists, with the federal government exercising unfettered discretion over who is a "suspected" terrorist. Under this law, a "suspected" terrorist would be any person whom the U.S. Attorney General says is a "suspected" terrorist.

It should be obvious to all Americans that the federal government is using the "war on terrorism" as a ruse to abolish the freedoms of the American people, to eviscerate the Bill of Rights, and to seize unlimited power for itself. It should also be obvious that if it were a Democratic administration attempting this, resistance would be vocal and vigorous. Because it is a Republican administration, however, resistance is almost nonexistent.

IS THE ACLU TELLING THE FULL STORY IN ITS NEW ANTI-PATRIOT ACT ADVERTISING CAMPAIGN?: The ACLU has recently unveiled a new advertising campaign against the USA Patriot Act. (You can read the ACLU's press release here, and view a sample advertisement here). The current campaign targets so-called "sneak and peek" or "delayed notice" search warrants, which are search warrants issued by a judge that do not require the government to notify the target that the search has occurred until some period after the search occurred (usually a few days later). For example, if the government needs to scout out a bad guy's apartment to confirm his participation in criminal activity before making an arrest, the government may be able to obtain a delayed notice warrant, execute the warrant when the suspect is out, and confirm the suspect's participation before making the arrest a few days later.

The ACLU campaign suggests that this law enforcement power was granted by the Patriot Act, and that its existence is a good reason to oppose the Patriot Act and future government requests for additional surveillance powers. Thanks to the Patriot Act, the ACLU says,
Now, the government can secretly enter your home while you're away . . . rifle through your personal belongings . . . download your computer files . . . and seize any items at will.
. . .
Under the USA Patriot Act, the government can invade your privacy even if you're not suspected of terrorism or any other crime. And, because of the Patriot Act, you may never know what the government has done.
It's an effective advertisement; I'm sure it will scare lots of people. And it's certainly legitimate to oppose the surveillance provisions of the Patriot Act, or additional proposals currently floating about. However, there are important things that the ACLU isn't telling you in their advertisement. Here are a few things that the ACLU advertisement overlooks, and that present a picture a bit different than the one the ACLU suggests:

1. The government has had the authority to conduct sneak-and-peek searches since long before the Patriot Act. The ACLU's advertisement makes it sound like the Patriot Act introduced sneak-and-peek warrants. But it didn't. The courts have interpreted the Fourth Amendment and the Federal Rules of Criminal Procedure to allow sneak-and-peek warrants since the 1980s. See, e.g., United States v. Freitas, 800 F.2d 1451 (9th Cir. 1986); United States v. Villegas, 899 F.2d 1423 (2d Cir. 1990); United States v. Simons, 206 F.3d 392 (4th Cir. 2000). The Patriot Act explicitly codified powers that the courts had created by judicial interpretations of Rule 41 before the Patriot Act. On balance, the Patriot Act did expand the sneak-and-peek authority slightly: but it's quite incorrect to suggest that the Patriot Act created this authority.

2. A federal judge must authorize the sneak-and-peek warrant after a finding of probable cause and reasonable cause to delay the notice. While the notice can be delayed, it must be given. The judge must not only find probable cause to believe that evidence of crime is located in the place to be seized, but the judge must also find that there is a good reason for notice to be delayed, and the delay must be only for a limited time. The statute, 18 U.S.C. 3103a(b), says:
With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if--
(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);
(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.
3. The same Fourth Amendment protections that apply to the execution of other warrants also apply to sneak-and-peek warrants. The ACLU advertisement says that "the government can secretly enter your home while you're away . . . rifle through your personal belongings . . . download your computer files . . . and seize any items at will." But they can't. The Patriot Act does not authorize such a search, and such a search would plainly violate the Fourth Amendment. Under the Fourth Amendment, the warrant must specifically name the place to be searched and the items to be seized. The warrant must be executed in a reasonable manner; if the police use the warrant as an opportunity to conduct a 'fishing expedition' for any kind of incriminating information not named, all of the evidence obtained pursuant to the warrant must be suppressed.

To be clear, I'm not necessarily defending the Patriot Act's sneak-and-peek provisions. I would have preferred more clear standards in the statute instead of the mushy "reasonable cause" and "good cause" standards. I also think such powers should be used only very sparingly, if at all. However, the ACLU's campaign seems to misrepresent this area of law considerably, as well as the role of the Patriot Act. Which to me prompts a question: If the Patriot Act is as bad as the ACLU says, why would they need to misrepresent the effect of the law in their advertising campaign?

In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant. “To sanction such presidential authority to order the military to seize and indefinitely detain civilians," Judge Diana Gribbon Motz wrote, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”

“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”