[Congressional Record (Bound Edition), Volume 151 (2005), Part 8]
[Extensions of Remarks]
[Pages 10518-10521]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  PRESERVING THE FOUNDATION OF LIBERTY

                                 ______
                                 

                        HON. DENNIS J. KUCINICH

                                of ohio

                    in the house of representatives

                        Wednesday, May 18, 2005

  Mr. KUCINICH. Mr. Speaker, I commend my friend and colleague, 
Representative C. L. ``Butch'' Otter, as well as Elizabeth Barker 
Brandt, Professor of Law at the University of Idaho, for their 
excellent article recently published in the Journal of Law, Ethics and 
Public Policy, Notre Dame Law School. I am proud to be an original 
cosponsor of Congressman Otter's Security and Freedom Ensured Act of 
2005 (SAFE Act) that rolls back the most alarming provisions of the 
Patriot Act. The article, Preserving the Foundation of Liberty, is an 
important critique of the federal government's expanding prosecutorial 
powers in the wake of the terrorist events in September 2001.

                  Preserving the Foundation of Liberty


            C. L. ``BUTCH'' OTTER & ELIZABETH BARKER BRANDT

       The sacred rights of mankind are not to be rummaged for, 
     among old parchments, or musty records. They are written, as 
     with a sun beam, in the whole volume of human nature, by the 
     hand of the divinity itself; and can never be erased or 
     obscured by mortal power.
           --Alexander Hamilton
       Foundations are supposed to be steadfast. The very idea of 
     a foundation is to provide a pinion between the fixed and the 
     transient, the permanent and the temporary. The foundation is 
     the unalterable base upon which to build. So it is with our 
     Constitution and Bill of Rights. They are the rock upon which 
     we have built our modern republic, while protecting the 
     individual from the government itself. For more than two 
     centuries, they have provided the firm foundation of liberty 
     and opportunity from which America and its people have taken 
     wing, enjoying success and weathering failure, celebrating 
     triumph and mourning tragedy.
       After the terrorist attacks of September 11, 2001, 
     forgetting our past and fearing our future, Congress began 
     turning that foundation on its head, acting as if physical 
     security requires the sacrifice of individual rights to 
     government imperatives. While paying lip service to our 
     heritage of limited government and individual liberty, we 
     began acting as if individual rights are conditional, derived 
     not from God nor inherent in the human condition, but subject 
     to the collective expression of our fears. Worst of all, we 
     convinced ourselves we were doing nothing of the kind, or 
     that the manifest benefit of a safer society was worth 
     risking the loss of individual liberties.
       Congress passed the USA PATRIOT Act just weeks after the 
     September 11 attacks, while the dead from the World Trade 
     Center towers in Manhattan, the Pentagon in Washington, and 
     from Flight 93 in Pennsylvania were still being buried. An 
     anthrax threat, assumed by many at the time to be another 
     terrorist attack, had forced members of Congress out of their 
     offices. Few, if any, lawmakers were truly aware of the new 
     and expanded law enforcement authority within the PATRIOT 
     Act. They only knew that they had to do something to quiet 
     the public's fears, and their own.
       This was not an executive order from a president reacting 
     to a concrete and immediate threat. This was not the 
     temporary imposition of martial law in response to a natural 
     disaster or military assault. This was the world's greatest 
     deliberative body hastily enacting an incredibly detailed, 
     complex, and comprehensive piece of legislation without all 
     the facts. That haste and lack of deliberation left advocates 
     backfilling many of the arguments in support of certain 
     provisions of the law that now appear to be glaringly at odds 
     with constitutional principles.


                     I. CONSTITUTIONAL FOUNDATIONS

       The Framers of our Constitution drew on an extensive body 
     of law and tradition to recognize certain rights were 
     inalienable--they transcended the power of government: The 
     colonists who fostered the tree of liberty recognized that 
     individual rights were its taproot. The notion that ``a man's 
     home is his castle,'' a place free from the intrusion of 
     government, was a time-honored theme--part of both the Code 
     of Hammurabi and the pronouncements of the Roman Emperor 
     Justinian. This notion was one of the inalienable rights with 
     which Englishmen were thought endowed and which the English 
     barons sought to protect, through the Magna Carta, from the 
     ad hoc interference of King John.
       The concept of inalienable rights infused the colonists' 
     understanding of liberty. It can be seen in diverse writings, 
     from Patrick Henry's rousing appeal for self-determination in 
     the Parsons' Cause case of 1763 to the claim of the 
     Declaration of Independence that ``all Men are created equal, 
     that they are endowed by their Creator with certain 
     unalienable Rights. . . .'' More than a desire for 
     independence or equality, the idea that made America a 
     reality and continues to make America great is that 
     individual rights are God-given and unalienable and that 
     government should be neither more nor less than man's 
     collective expression of those rights. That is the contract, 
     the foundation upon which America was imagined. It is 
     designed to protect individuals--their persons, homes, 
     property, speech, worship, associations, and privacy--from 
     the tyranny of government by the majority.
       Yet, the Fourth Amendment reflected more than a generalized 
     notion of inalienable rights. It was a specific response to 
     the British government's pre-constitutional violation of 
     colonists' individual rights through

[[Page 10519]]

     the use of ``Writs of Assistance.'' The writs were general, 
     universal, perpetual, and transferable search warrants used 
     to enforce smuggling laws so the cash-strapped British crown 
     could wring revenue from the colonies to satisfy the crushing 
     debt of a worldwide empire. They authorized ``all and 
     singular justices, sheriffs, constables, and all other 
     officers and subjects'' to enter homes and businesses at 
     will--ostensibly in search of smuggled items--and to seize 
     virtually any property without accounting or recompense. 
     Writs of Assistance blatantly disregarded personal privacy 
     and offended basic civil liberties, as they were understood 
     by colonial times. Not only were the writs broad and 
     intrusive but many of the colonists believed they had been 
     outlawed in Britain--that only the colonists were subject to 
     such intrusions.
       The infringement on personal privacy and property rights 
     represented by the Writs of Assistance was so outrageous 
     that, in 1761, it prompted Boston attorney James Otis, a 
     loyal officer of King George III, to resign his position as 
     an advocate general in the vice admiralty court. 
     Subsequently, he was commissioned by Boston merchants to make 
     their case against renewal of the writs. Otis's stirring 
     five-hour argument indicted the expansion of government 
     authority in violation of the individual rights of British 
     subjects. ``It appears to me (may it please your honours) the 
     worst instrument of arbitrary power, the most destructive of 
     English liberty, and the fundamental principles of law, that 
     ever was found in an English law-book.'' Otis's argument in 
     the Writs of Assistance case hinged on several major points, 
     one of which was the invocation of the ancient notion 
     regarding the sanctity of the home. Otis argued that 
     householders would reduced to servants under the writs 
     because their homes would subject to search at any time: 
     ``Now one of the most essential branches of English liberty 
     is the freedom of one's house. Man's house is his castle; and 
     while he is quiet, he is as well guarded as a prince in his 
     castle. This writ, if it should I declared legal, would 
     totally annihilate this privilege.''
       John Adams, then a young lawyer, was in the courtroom hear 
     Otis's argument. Fifty-six years later, in a letter to a 
     colleague, the founding father and America's second president 
     recalled the impassioned defense of liberty as a transcendent 
     moment on the path to revolution: ``Then and there, the child 
     Independence was born.''
       Also born that day, and reared to maturity by Adams and 
     many others, was a critical element of America's 
     constitutional foundation--the commitment to protect ``the 
     freedom of one house,'' which became the Fourth Amendment. 
     The idea that those rights transcend the needs of any 
     particular time and place is embedded in our jurisprudence. 
     Justice Robert Jackson wrote:
       The very purpose of a Bill of Rights was to withdraw 
     certain subjects from the vicissitudes of political 
     controversy, to place them beyond the reach of majorities and 
     officials and to establish them as legal principles to be 
     applied by the courts. One's right to life, liberty, and 
     property, to free speech, a free press, freedom of worship 
     and assembly, and other fundamental rights may not be 
     submitted to vote; they depend on the outcome of no 
     elections.
       With those words, the U.S. Supreme Court struck down the 
     widely popular practice, adopted in a burst of patriotism 
     during World War II, of requiring public school students to 
     salute the American flag. Writing for the majority, Justice 
     Jackson crystallized the argument for protecting most 
     vigorously the least popular of our individual rights in the 
     overheated political climate of the moment. While public 
     displeasure served as a natural defense of liberty against 
     the Writs of Assistance once Otis sounded the alarm, the 
     Constitution and Bill of Rights institutionalized protection 
     of minority rights from majority will and created a 
     foundation for individual liberty. The test of such a 
     foundation is how firmly it is reinforced against time and 
     tides.


      II. ``SNEAK-AND-PEEK'' WARRANTS PRIOR TO THE USA PATRIOT ACT

       Just as the British crown felt compelled, in the interest 
     of empire, to sacrifice the rights of citizens remote from 
     the seat of government, section 213 of the PATRIOT Act, in 
     the name of fighting terrorism, deprives Americans of the 
     right to be ``as well guarded as a prince in his castle.'' 
     Section 213 of the PATRIOT Act greatly expands what already 
     was constitutionally questionable authority for delayed 
     notification of the execution of search warrants.
       Prior to the PATRIOT Act, the Federal Rules of Criminal 
     Procedure established the framework for the execution and 
     return of warrants. Rule 41(f) requires that the officer 
     executing the warrant enter the date and time of its 
     execution on its face. It further requires that an officer 
     present at the search prepare and verify an inventory of any 
     property seized. Moreover, Rule 41(f) provides that the 
     officer executing the warrant ``give a copy of the warrant 
     and a receipt for the property taken to the person from whom 
     or from whose premises, the property was taken'' or ``leave a 
     copy of the warrant and receipt at the place where the 
     officer took the property.'' Congress recognized an extremely 
     limited exception to the notification requirements under 
     certain circumstances where notification would endanger the 
     life or physical safety of an individual, would result in 
     flight from prosecution, destruction of evidence, or 
     intimidation of witnesses, or would otherwise jeopardize an 
     investigation.
       The case law regarding surreptitious searches was unsettled 
     at the time the USA PATRIOT Act was adopted. The U.S. Supreme 
     Court never directly addressed the constitutionality of broad 
     surreptitious search provision. In Berger v. New York, the 
     Court struck down New York's wiretapping statute because it 
     lacked a number of procedural safeguards to limit the 
     intrusiveness of wiretapping. Among the statute's 
     deficiencies was that it had no requirement for notice. And, 
     in contrast to other wiretapping statutes, the New York 
     provision did not make up for the deficiency by requiring a 
     showing of exigent circumstances to justify the lack of 
     notice. However, in Dalia v. United States, the Court refused 
     to hold all surreptitious searches per se unconstitutional. 
     Rather, the Court reasoned that under some circumstances, 
     surreptitious searches could be authorized where such 
     searches were reasonable, such as where they were supported 
     by a warrant.
       On this landscape, the federal circuit courts addressed the 
     constitutionality of delayed notification of searches. In 
     United States v. Freitas, the Ninth Circuit held that a 
     warrant that failed to provide for notice within a 
     ``reasonable, but short time'' after the surreptitious entry 
     was constitutionally defective. The Freitas court held that a 
     delay in notification should not exceed seven days, except 
     when supported by a ``strong showing of necessity.''
       Even courts upholding delayed notification of search 
     warrants have imposed significant limitations on such 
     searches. In United States v. Villegas, the Second Circuit 
     reasoned:
       Though we believe that certain safeguards are required 
     where the entry is to be covert and only intangible evidence 
     is to be seized, we conclude that appropriate conditions were 
     imposed in this case. Certain types of searches or 
     surveillances depend for their success on the absence of 
     premature disclosure. The use of a wiretap or a ``bug,'' or a 
     pen register, or a video camera would likely produce little 
     evidence of wrongdoing if the wrongdoers knew in advance that 
     their conversations or actions would be monitored. When non-
     disclosure of the authorized search is essential to its 
     success, neither Rule 41 nor the Fourth Amendment prohibits 
     covert entry.
       The Second Circuit determined that a number of safeguards 
     applied to surreptitious searches. First, the court noted 
     that if tangible evidence was seized during the search, 
     officers must leave an inventory of the property taken at the 
     location or must provide the inventory to the owner of the 
     searched premises. Additionally, the court concluded that, 
     with regard to electronic surveillance, the requirements of 
     federal wiretapping laws provided significant safeguards. The 
     court further reasoned that the safeguards of the federal 
     wiretapping statute also apply by analogy to video 
     surveillance. Even with regard to surreptitious entries in 
     which no tangible property is seized, the Second Circuit held 
     that law enforcement officers must establish that there is a 
     reasonable necessity for the delay of notice and must provide 
     notice within a reasonable, but short, period of time after 
     the search. Although the Villegas court did not adopt the 
     seven-day limitation of Freitas, the court did conclude that, 
     as an initial matter, delays of longer than seven days should 
     not be authorized.
       While there is a paucity of case law on the general 
     questions of whether and when notice of the execution of a 
     search required, significant authority also establishes the 
     closely related notion that law enforcement officials must 
     knock and announce themselves before executing a search 
     warrant. Even before American independence, British law 
     required law enforcement officials to knock and announce 
     themselves before executing a search warrant. The United 
     States Supreme Court has recognized that whether law 
     enforcement officers knock and announce themselves is a 
     factor to be considered in determining whether a search is 
     reasonable. The Court's reasoning was based substantially on 
     the notion that government officials must provide notice 
     before entering a person's home. The Court acknowledged that 
     this notion formed part of the Framers' understanding of what 
     constituted a reasonable search. While the Court has 
     recognized an exigency exception to the ``knock and 
     announce'' rule, it has not overruled it.
       Thus, at the time the PATRIOT Act was adopted, no federal 
     court had authorized unlimited use of ``sneak-and-peek'' 
     warrants. Moreover, even those courts authorizing limited 
     surreptitious entry had placed significant limitations on 
     such searches.


       III. ``sneak-and-peek'' warrants under the USA PATRIOT act

       No federal court has ever confronted the virtually 
     unlimited authority to dispense with notice contained in the 
     PATRIOT Act. Section 213 eliminates the time limits for 
     notification under prior federal law, makes judicial review 
     of the necessity of delayed notification perfunctory and so 
     loosens the

[[Page 10520]]

     standard for delayed notification as to render it 
     meaningless. It strikes at the foundation of liberty embodied 
     in the Fourth and Fifth Amendments and at the essential 
     protections of probable cause, due process, and separation of 
     powers.
       Section 213 amends 18 U.S.C. Sec. 3103a to add the 
     following language:
       ``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 a warrant may have an 
     adverse result (as defined in section 2705);
       ``(2) the warrant prohibits 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 of 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.''
       Section 213 changes prior federal law regarding 
     notification of searches in several important ways. First, it 
     permits delayed notification of a search in any case in which 
     the government demonstrates that one of several adverse 
     factors ``may'' occur, regardless of whether the 
     investigation involves terrorism or the gathering of foreign 
     intelligence. The adverse factors justifying delayed notice 
     are that notification would endanger the life or physical 
     safety of an individual, would result in flight from 
     prosecution, destruction of evidence, intimidation of 
     witnesses, or would otherwise jeopardize an investigation or 
     unduly delay a trial.
       This standard is so open-ended that these invasive warrants 
     could be obtained as a matter of course; the government need 
     only state that notification of a search ``may'' ``seriously 
     jeopardize'' an investigation. Although the standard for 
     delay was part of pre-PATRIOT law, the earlier statute was 
     limited to covert seizures of electronic communications held 
     in third-party storage.
       The nature of criminal investigation is that unpredictable 
     things may happen. It is always conceivable that the target 
     of a search may act in an unpredictable fashion when he or 
     she is notified of the warrant and thereby jeopardize an 
     investigation. As a result, section 213 places virtually no 
     limit on ``sneak-and-peek'' searches.
       The second distinction between the PATRIOT Act and prior 
     law is that officers may seize tangible property using a 
     covert warrant under the PATRIOT Act without leaving an 
     inventory of the property taken. Thus, the PATRIOT Act 
     actually authorizes ``sneak-and-steal'' warrants. The law 
     requires only that 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.''
       Again, prior statutory provisions for delayed notification 
     applied only to electronic communications in third-party 
     storage. The cases dealing with delayed notification 
     authorized surreptitious entry but required officers to leave 
     an inventory if property was taken. Although the approach of 
     courts like the Second Circuit in Villegas, in our view, did 
     not properly limit the use of ``sneak-and-peek'' warrants, it 
     is significantly more limited than the PATRIOT Act approach.
       Third, section 213 permits delayed notification even where 
     the government seizes electronic information, so long as the 
     court issuing the warrant finds ``reasonable necessity'' for 
     the seizure. Thus, if officers get a warrant under federal 
     wiretapping statutes, they still must comply with a complex 
     set of safeguards. For all other warrants involving 
     electronic communications--those involving video or Internet 
     surveillance, for example--delayed notification under the 
     PATRIOT Act applies.
       Fourth, section 213 places no express limit on the length 
     of the delay. Instead, it authorizes delay for a ``reasonable 
     period'' of time and permits extensions of the delay for 
     ``good cause shown.'' Section 213 opens the door for secret 
     searches extending over months or even years without the 
     knowledge of the target of the search. Such delays render 
     notice meaningless. Although the judge in any particular case 
     may impose a specific deadline by which notice must be given, 
     the statute does not require such a deadline. Where the 
     warrant itself does not impose specific time limits, judicial 
     review of the necessity of continuing delay in notification 
     is impaired. No concrete timeframe triggers a governmental 
     duty to justify continued delay. Because the target of the 
     search is, by definition, unaware of the search, he or she 
     cannot be expected to seek review of the need for continued 
     delay. Courts would have the opportunity to review the 
     necessity of delay only after the fact, while also under the 
     pressure to prosecute and admit evidence obtained through the 
     notice-less search.
       Finally, section 213 extends the availability of ``sneak-
     and-peek'' warrants far beyond the PATRIOT Act's stated 
     purpose of fighting terrorism. The provision contains no 
     limitation on the types of cases in which a covert warrant 
     could be used.


                               CONCLUSION

       The threatening nature of section 213 is not obvious, and 
     thus, it is more dangerous to the cause of preserving 
     liberty. If the public is blinded by fear of terrorism or 
     ignorance of what is at risk, section 213 has the potential 
     to become the insidious mechanism of steady but discernible 
     erosion in the foundation of our freedoms. Section 213 takes 
     the exception and makes it the rule--in fact, makes it the 
     law of the land. It gives broad statutory authority to secret 
     searches in virtually any criminal case. Even if the Supreme 
     Court upholds the constitutionality of such practices, 
     Congress can--and should--limit them by statute. In such 
     cases, justice delayed truly is justice denied.
       Terrorism is a scourge that must be addressed. Government 
     has a fundamental duty to protect its people from enemies, 
     foreign or domestic. Fear of terrorism, or anything else, 
     deprives us of free choice as surely as does tyranny; indeed, 
     terrorism is an instrument of tyranny. We must not, however, 
     allow fear to erode the constitutional foundation of our 
     freedom. We can no more gain real security by being less free 
     than we can gain wealth or wisdom or anything else of value. 
     No such trade-off is possible. That is the definition of 
     ``unalienable''--rights with which we were endowed by our 
     Creator, and which therefore cannot be repudiated or 
     transferred to another. Our Constitution recognizes that 
     higher law, and we ignore it at our peril.
       We now are engaged in a national crisis, an unconventional 
     war in which our surreptitious enemies use the camouflage of 
     a free society's commitment to privacy and diversity to 
     achieve their goals. Our government is justified in adapting 
     its law enforcement methods to the new threat, but we must 
     take care to ensure those methods are consistent with the 
     timeless principles of our founding. To do less is to 
     sanction a dangerous expansion of governmental authority and 
     a corresponding reduction of personal privacy.
       Our body of laws serves as both a connecting mortar and a 
     protective barrier between the foundation of our Constitution 
     and the structure of our government. Laws are necessary for 
     applying constitutional principles to the endless variety of 
     everyday life. They join the abstract and the concrete. They 
     enable us to safely explore our freedom and realize the 
     potential of liberty.
       However, when laws reach beyond limits imposed by the 
     Constitution, when they grant too much power to government 
     and too little deference to the source of that power, they 
     cease to connect or protect. If unchecked, these laws can 
     destroy the foundation of individual rights. Proponents 
     contend that we have nothing to fear from section 213 or any 
     other provision of the PATRlOT Act. This may be true, as long 
     as the public is as vigilant as the American colonists were 
     after Otis inflamed their passions regarding the Writs of 
     Assistance. But can we trust that the law will be used as 
     judiciously, with as much care to protecting civil liberties, 
     once the public's attention has turned to other matters?
       The concern is not new or unique to the PATRlOT Act. Few of 
     our Founding Fathers had greater faith in his fellow man than 
     Thomas Jefferson. Yet that faith had its limits. In the 
     Kentucky Resolutions, Jefferson wrote:
       [I]t would be a dangerous delusion were a confidence in the 
     men of our choice to silence our fears for the safety of our 
     rights: that confidence is everywhere the parent of 
     despotism-free government is founded in jealousy, and not in 
     confidence; it is jealousy and not confidence which 
     prescribes limited constitutions, to bind down those whom we 
     are obliged to trust with power: that our Constitution has 
     accordingly fixed the limits to which, and no further, our 
     confidence may go . . . .
       Due process. Probable cause. Those are the constitutional 
     limits within which we ``bind down those whom we are obliged 
     to trust with power'' and preserve our individual rights. A 
     law that sets those limits aside, or obfuscates them in vague 
     statutory language and legalistic definitions, has the 
     potential for eroding the foundation of freedom as surely as 
     terrorists have the potential for breaching the ramparts of 
     our security. An informed people and a vigilant and 
     responsive Congress are the keys to guaranteeing that our 
     rights to security and freedom are ensured. They are 
     essential to protecting the foundation of liberty and 
     preserving each individual's God-given role as the architect 
     of his or her own destiny. As John Stuart Mill warned:
       A people may prefer a free government, but if, from 
     indolence, or carelessness, or cowardice, or want of public 
     spirit, they are unequal to the exertions necessary for 
     preserving it; if they will not fight for it when it is 
     directly attacked; if they can be deluded by the artifices 
     used to cheat them out of it; if by momentary discouragement, 
     or temporary panic, or a fit of enthusiasm for an individual, 
     they can be induced to lay their liberties at the feet even 
     of a great man, or trust him with powers which enable him to 
     subvert their institutions; in all these cases they are more 
     or less unfit for liberty.

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