Sneaking In the Secret Search

No person's liberty is safe in the last week of Congress

By Dave Kopel of the Independence Institute  

10/10/00 2:00 p.m., National Review Online

o person's liberty is safe in the last week of Congress — traditionally a time when civil liberties invasions such as wire-tapping, gun prohibition, and the like are snuck through into legislation. These are the final frantic hours of the session, and there is no opportunity for public opposition.

This Congress will be no exception. As soon as today, the House may vote on a bill, which has already passed the Senate, to drastically expand government power to conduct secret searches without judicial approval.

The bill in question comes from Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT). It is S. 2516, "The Fugitive Apprehension Act." The bill allows the government to obtain any kind of document it wants, without first getting a search warrant or a subpoena from a court. Section 3(b) allows the attorney general or her subordinate, rather than a court, to issue subpoenas. These documents include any written or electronic document possessed by an individual — or possessed by a third party (such as bank records, credit card records, telephone records, school records, or an Internet Service Provider's customer records).

In other words, the bill guts the Fourth Amendment requirement that private documents should be searched only after a court issues a warrant based on probable cause.

Even worse, section 3(g) of the bill allows these document seizures to be conducted secretly, so that the individual might never be told that his bank records, Internet records, or other documents have been searched by the government. The section allows the attorney general's subpoena a "provider of electronic communication service" to receive the secrecy privileges that are currently allowed only for wiretaps (these include that the government can delay or postpone forever telling a person that he has been searched).

The bill currently applies to apprehension of "fugitives," which includes people who have been charged (not convicted) of a crime at both the federal or state level. In other words, if your wife's second cousin never showed up in court for his drunk-driving trial, the government could look at your bank records, telephone records and Internet records — without a court order and without ever telling you about most of the searches.

There is no law enforcement need for this provision. Under the All Writs Act, a United States attorney can go to court and present reasons why he needs access to private records. If the court agrees (it almost always does), the court issues a subpoena to obtain the records. This system is working well, and, notably, U.S. attorneys are not asking to change the law.

Even so, there is a very strong chance that S. 2516 will become law next week, unless Congress hears of widespread opposition. The American Civil Liberties Union, which is leading the fight against the bill on Capitol Hill, is urging to citizens to contact their representatives and senators in every way possible: at town hall meetings, by calling D.C. and local congressional offices, and by sending e-mails or faxes.

The main congressman opposing S. 2516 is Rep. Bob Barr (R-GA). The very conservative Barr is a former U.S. attorney, and one of the most prominent "law and order" Republicans in Congress — as shown by his leadership in the effort to impeach President Clinton. While the ACLU is generally considered liberal, and Barr conservative, both agree that protecting the Fourth Amendment transcends party or ideology.

Should S. 2516 become law, it would set a precedent for warrantless, secret searches on other areas — including firearms. This is one reason why Barr, one of the staunchest Second Amendment defenders in Congress, is opposing the bill.

There is also a possibility that S. 2516 may be snuck through as an amendment to HR 3048, "The Presidential Protection Act of 2000." Of course S. 2516 has nothing to do with presidential protection. Instead, the bill is about constitutional destruction.  

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