Thursday, September 24, 2009

Patriot Act's "Sneak-and-Peek" Authority Exposed! Feingold Grills Assistant AG

Let's take a stroll down nightmare lane, shall we? If you remember, in the fear tainted debate over the PATRIOT Act, the Bush Administration insisted it needed the authority to search people's homes without their permission or knowledge so that terrorists wouldn't be tipped off that they're under investigation. Now that the authority is law, and now that the Obama Administration has asked for its extension, how has the Department of Justice used the new power?

Answer: To go after drug dealers...and nearly NO "TERRORISTS".

Only three of the 763 "sneak-and-peek" requests in fiscal year 2008 involved terrorism cases, according to a July 2009 report from the Administrative Office of the U.S. Courts. Sixty-five percent were drug cases.

Just so we're REALLY CLEAR on this, let me quote the Fourth Amendment...and then you tell me if the governments "Sneak and Peek" requests have passed the old Constitutional "smell test":

"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."

Two years ago I gave an interview to NPR on the issue of creating a giant prescription drug database - funded by private pharmaceutical and health insurance interests - that would give immediate access to all of our prescription drug records not just for doctors (which is still problematic) but to the police and government as well.

Now, while its a different issue, I believe the response I gave was telling, and correct, particularly in hindsight. Essentially I made the point, which I believe these new revelations strongly back up, that we should all be skeptical any time the "war on drugs" is used to rationalize the increasing deterioration of our right to privacy.

But I don't think I could even have predicted that 65% of the "sneak-and-peek" orders - a provision sold to us as necessary to protect us from terrorism - would be used to fight the phony, destructive "war on drugs".

AS I also told NPR at the time, if we really wanted to reduce drug dependency we should focus on fully funding our schools, offering first class drug counseling and rehabilitation services, and stopping the advertising of prescription drugs on television every night (among many other tactics).

On that note, watch Sen. Feingold grill Assistant Attorney General David Kris about this discrepancy at a hearing on the PATRIOT Act Wednesday. If you have trouble watching the video down below, here are the highlights courtesy of the the Huffington Post, "One might expect Kris to argue that there is a connection between drug trafficking and terrorism or that the administration is otherwise justified to use the authority by virtue of some other connection to terrorism. He didn't even try."

Instead, Kris states, "This authority here on the sneak-and-peek side, on the criminal side, is not meant for intelligence. It's for criminal cases. So I guess it's not surprising to me that it applies in drug cases."

As I recall it was in something called the USA PATRIOT Act," Feingold quipped, "which was passed in a rush after an attack on 9/11 that had to do with terrorism it didn't have to do with regular, run-of-the-mill criminal cases. Let me tell you why I'm concerned about these numbers:

That's not how this was sold to the American people. It was sold as stated on DoJ's website in 2005 as being necessary - quote - to conduct investigations without tipping off terrorists."

Kris responded by saying that some courts had already granted the Justice Department authority to conduct sneak-and-peeks. But Feingold countered that the PATRIOT Act codified and expanded that authority -- all under the guise of the war on terror.

Feingold, the lone vote against the PATRIOT Act when it was first passed, is introducing an amendment to curb its reach. "I'm going to say it's quite extraordinary to grant government agents the statutory authority to secretly break into Americans homes," he said.


It goes without saying that these new revelations should give Senator Feingold's JUSTICE Act a better chance of being enacted. As I also mentioned in a post earlier in the week, Feingold's legislation provides a kind of privacy litmus test for the President, because candidate Obama was essentially supportive of what the Senator is now proposing...but its unclear where he is now on these issues.

We now know, without a shadow of a doubt, that the "the sneak and peak" authority given to the Government under the false premise of fighting terrorism, was in fact used to break into homes of alleged drug dealers and users...and who knows who else (political activists, peace protesters?). It is hard to think of a graver violation of our Constitution and the rights of those Americans that had their homes broken into.

For these reasons it then becomes apparent that the JUSTICE Act is a monumentally important piece of legislation, both in terms of its concrete and tangible reforms, as well as the barometer for which it will serve as in terms of measuring whether Congress and the President are ready and brave enough to take on some of the most egregious aspects of the Patriot Act.

This is an incredible opportunity to restore some semblance of privacy rights for the American public and a check on Executive Power run amok. It would also go a long way in demonstrating that we are no longer a country in the grips of an irrational fear that overrides common sense and the Constitution itself.

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