Obama's Ironic Legacy

Obama's Ironic Legacy Might be That He Continued an Unconstitutional Act

by Walter Brasch

The U.S. House of Representatives this week did something it should have done years ago—it blocked the continuation of three of the more controversial parts of the PATRIOT Act. The vote was 277–148 to continue the Act, but a 2/3 majority (284 of those voting) was necessary for the bill to move forward. The PATRIOT Act sections are scheduled to expire Feb. 28 unless further action is taken by Congress.

The Republican leadership had placed the bill on an expedited agenda, believing it had the necessary votes. It didn't count on a loose coalition of liberals and extreme conservatives to oppose the Act. Twenty-six Republicans, including seven who are allied with the Tea Party, voted against the bill. Had those seven Tea Party members voted for the continuation, the bill would have passed.

The PATRIOT Act was passed about six weeks after the 9/11 attacks. The 342-page bill was drafted in secret by the Bush Administration, had minimal discussion, and most members of Congress hadn't even read it when they voted for it. Only one of 100 senators and 66 of 435 representatives voted against it, claiming that it sacrificed Constitutional protections in order to give Americans a false sense of security. Most of the Act is non-controversial, an umbrella for previous federal law; the controversial parts taint the entire document.

The PATRIOT Act's "sunset" clause required 16 of the most controversial parts to expire unless Congress renewed them before December 31, 2005. However, in July 2005, Congress voted to extend the entire law.

The PATRIOT Act butts against the protections of six Constitutional amendments: the 1st (freedom of religion, speech, press, and assembly, and the right to petition the government for a redress of grievances), 4th (freedom from unreasonable searches), 5th (right against self-incrimination and due process), 6th (due process, the right to counsel, a speedy trial, and the right to a fair and public trial by an impartial jury), 8th (reasonable bail and freedom from cruel and unusual punishment), and 14th (equal protection guarantee for both citizens and non-citizens).

The PATRIOT Act also violates Article I, Section 9 of the Constitution, which guarantees the right to petition the courts to issue a writ of habeas corpus to require the government to produce a prisoner or suspect in order to determine the legality of the detention. Only Congress may order a suspension of the right of the writ, and then only in “Cases of Rebellion or Invasion.” Congress did not suspend this right; nothing during or subsequent to the 9/11 attack indicated either a rebellion or invasion under terms of the Constitution.

Among the provisions of the PATRIOT Act, which 277 House members apparently believe is necessary for American security, is Section 215, which allows the government to seize all library records of any individual. Apparently, the government believes that reading is just another part of a wide terrorist conspiracy. A white-haired grandmother who checks out murder mysteries from the library could be a serial killer, according to the government's logic.

Several federal court cases, including decisions by the Supreme Court, with most of its members politically conservative, ruled that provisions of the PATRIOT Act are unconstitutional. Implementation of those rulings are slow or under appeal.

Among organizations that oppose the PATRIOT Act are the ACLU, American Bar Association, American Booksellers Association, American Library Association, and the National Council of Churches. Among liberals who have led opposition to the Act are Sen. Russ Feingold (D-Wisc.) and Rep. Dennis Kucinich (D-Ohio). Among conservatives opposing the Act are former House Speaker Newt Gingrich (R-Ga.), former Rep. Bob Barr (R-Ga.), who had been a U.S. attorney, Rep. Ron Paul (R-Tex) and Sen. Rand Paul (R-Ky.). Among conservative organizations that oppose the PATRIOT Act are the American Conservative Union, Free Congress Foundation, and the Second Amendment Foundation.

Some of society's denser citizens have claimed that not only must the nation sacrifice some of its civil liberties in order to defeat terrorism, but that they personally have never had their own rights suppressed. Nevertheless, there are hundreds of cases of persons whose civil liberties have been threatened. In only the first three years after the PATRIOT Act was placed into law, there were about 360 arrests, with only 39 convictions, half resulting in jail sentences of less than 11 months, indicating minor infractions. Reports from the inspector general of the Department of Justice revealed that the government had consistently exceeded its authority to investigate and prosecute civilians under guise of the PATRIOT Act. Numerous arrests for non-terrorist activity include a couple aboard a flight who were charged as terrorists for having engaged in "overt sexual activity," and a woman who was jailed three months in 2007 as a terrorist for raising her voice to a flight attendant.

In March 2010, President Obama signed a one-year extension on the Act, and now says he wants the Act to continue through 2013.

And that may be the worst part of the President's legacy. The constitutional law scholar and professor, who has strong beliefs for human rights but who has not been forceful in speaking out against the Act's most heinous sections, is now a leading proponent to extend the very document that conflicts with his principles and the nation's Bill of Rights.

[Dr. Brasch is author of the critically-acclaimed America's Unpatriotic Acts, the first book to look in-depth at the PATRIOT Act and its effect upon American citizens. The book is available through amazon.com, as are his 15 other books, most on history and contemporary social issues

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