Aaron Turpen

April 14, 2004

Testimony Submitted to the
U.S. Senate Judiciary Committee on
"Preventing and Responding to Acts of Terrorism: A Review of Current Law"
by
Aaron Turpen
Libertarian Party of Utah
April 14, 2004
Chairman Hatch, distinguished Members of the Committee, I thank you for the
opportunity to testify on the state of our freedoms and the USA PATRIOT Act's impact
on current law and our natural rights.
My name is Aaron Turpen and I am Secretary of the Libertarian Party of Utah. I am also
the webmaster for CivilDisobedience.us and work with several action groups protecting
our rights under the Constitution of the United States of America.
I applaud your oversight and dedication to our beloved Constitution. While it is not
always easy to preserve our liberties from encroachments, however good their intentions,
it is always right to do so.
Mr. Bob Barr stated it correctly when he said, before this same Committee, "The question
before us today--whether the government response to those [9/11] attacks has adversely
affected our individual liberties, including the right to privacy--could not be more
important. It is at once complex and simple."
The threat of terrorist attack on this nation, following the tragedy of September 11, 2001,
is considered real and present. While the danger of further attack is ever present, the
danger of losing what we most cherish is even more so.
Our nation was founded on the principles of liberty: soon after ratification of the
Constitution, the founders of this nation thought it necessary to ensure protection against
government encroachment on liberties, and so, in 1791, the first ten amendments to the
Constitution--commonly known as the Bill of Rights--were enacted.
The hastily-drafted and hastily-enacted Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (commonly
known as the USA PATRIOT Act or the Patriot Act) was an attempt to give federal
agencies the powers they needed to combat and prevent future terrorist attacks on our
nation. However, most members of Congress have now admitted that they did not read
the Act and many have stated that they no longer support the powers given by it.
In response to that, many acts of legislation have been proposed which would amend the
USA PATRIOT Act to bring it more in line with the rights of the people. Among these
are Senate Bill 436 (the Domestic Surveillance Oversight Act of 2003), Senate Bill 1709
(the SAFE Act), and Senate Bill 1552 (Protecting the Rights of Individuals Act). I and
the Libertarian Party of Utah strongly support these bills and ask that the Judiciary
Committee move them out of committee and onto the Senate floor for a vote.
Our concerns with the powers given to agencies of the federal government by the Patriot
Act are many. Without digressing into a discussion of basic libertarian thought and the
state of our nation today, I would like to address provisions of the USA PATRIOT Act
specifically and their ramifications--both documented and theoretical.
The Act changes the purview of three major parts of the federal code: Title III, the
Electronic Communications Privacy Act (ECPA), and the Foreign Intelligence
Surveillance Act (FISA). The latter meant solely for foreign intelligence gathering.
Section 206 of the Act expands FISA to permit what is termed a "roving wiretap"
authority from "specified in court-ordered surveillance" to instead include unnamed and
unspecified third parties: thus opening the authority up to generic orders that could be
used to infringe on the privacy rights of untold numbers of people, especially those who
access the Internet via public libraries, schools, and cyber cafes. Because these are issued
in secret, no accountability for the execution of these warrants is given. This is a direct
violation of not only the First and Fourth Amendments to the Constitution, but also to the
checks and balances therein. Not to mention the intended jurisdiction of FISA itself.
Further, Section 212 allows for nearly the same powers to be demanded by the
Department of Justice of an Internet Service Provider or telephone company--whether a
search warrant is issued or not. To ad insult to injury, this power, which was to sunset in
2005, was made permanent by the passage of the Homeland Security Act (Section 225).
The often-touted Section 213 of the Act allows for what are commonly known as "sneak
and peek" warrants to be used. While the idea of a "sneak and peek" warrant has been
heavily debated against the Fourth Amendment protection of "probable cause" and "oath
and affirmation," the Act's vague definition of "reasonable period" is often overlooked.
This definition is used to describe when such a warrant is to be announced to the searched
person or persons. Even the Department of Justice's own Field Guide advises that this is
a "flexible standard." In addition, these searches apply to all searches for material that
"constitutes evidence of a criminal offense in violation of the laws of the United States."
Clearly not just terrorism investigations!
Section 215 of the act, also often mentioned, allows for FBI access to "any tangible
things." In the popular press, this has been touted as the direct attack on libraries and
book stores. Not quite as well known is the scope of the authority given, which applies to
any record relevant to the individual and held by a third party. This could include
hospitals, places of worship, schools, civic clubs, and more. All without showing
"probable cause," but with only the claim that the records may be related to an ongoing
investigation "related" to terrorism! Worse yet, those served with the warrants must
comply and divulge these records and are under a federal gag order (with criminal
penalties) to not disclose that the records were requested and given! This provision
allows for potential wholesale record-gathering and database building on persons for
literally any reason the Justice Department may deem needful now and in the future.
It is important to note that the powers listed above (Section 215) were available to the
FISA Court before the USA PATRIOT Act was enacted. It is equally important,
however, to understand that there were two major safeguards countering this power
which were removed by Section 215. These checks included a definition of specific
records that were available under this provision and the requirement that the FBI present
the FISA Court with "articulable facts giving reason to believe" that the person being
investigated was a spy or terrorist. Both of these protections, again, were removed by
Section 215.
Moving into Title III of the Patriot Act, we come to Section 315, which authorizes
extended powers for foreign corruption offenses and money laundering crimes. With the
designations of these crimes and the definitions thereof, it should be well noted that these
basic laws have been in effect for years now under prevue of the Department of the
Treasury. Money launderers and multi-national fraudsters have been flouting these same
laws since their inception with relative impunity. There is little chance that foreign
terrorists would not use the same techniques in their actions.
I could write volumes on the various aspects of the forfeiture clauses of Section 806 and
its corresponding attacks on personal and private property rights. Property forfeiture
without due process is, itself, a fundamental attack on the rights of the People and cannot
be lambasted enough. The discussion of it, while bearing mention here, is somewhat out
of the scope of this testimony.
Beyond the technical aspects of the Patriot Act itself, one with a libertarian mind is
forced to consider the further Constitutional ramifications of the Act's consequences. In
our nation's constitutional framework exist three separate and distinct branches: the
executive, the legislative, and the judiciary. The balance of powers between these three
branches is what we term "checks and balances." These checks and balances assume a
certain amount of visibility and accountability for each branch.
One of the heaviest of the erosions to this balance is the general loss of accountability for
the Executive Branch. In 2002, the House Judiciary Committee demanded that the
Department of Justice answer questions about how it was using the new authorities given
by the USA PATRIOT Act. Touting "national security issues," the Justice Department
refused to give anything more than the letter of the law required. It was only after intense
public pressure that the Executive acquiesced and produced more information.
This erosion of accountability resulted in a heavy mistrust of the Executive branch and
illustrated the relative weakness the legislative branch now holds in weighing its side of
the checks and balance sea-saw.
Related to the issue of accountability and the checks and balances of our government the
overall issue of new attitudes and regulations within various government agencies
regarding Freedom of Information Act (FOIA) requests has also been disconcerting. A
general "closing of the doors" has been witnessed and recounted by many journalists,
lobbyists, activists, and others who have come to rely on the general availability and
openness of information available from, about, and thanks to our government agencies.
Many records which were previously openly available have become closed under the
guise of "national security." This circling of the wagons by agencies of the government
appears to have done little to safeguard our nation and much to undermine trust in our
nation's government.
Ultimately, in our representative republic, those chosen to serve in the name of the People
are accountable to those who asked them to serve. Consequently, those laws which are
enacted by those called to serve are also accountable to the People for which they were
written. Therefore, the laws with which the People are not content may be revised or
removed to suit the Will of the People.
The USA PATRIOT Act has shown its ability to galvanize the Will of the People against
its draconian provisions. Regardless of political ideology, religious belief, or lifestyle
choice; people around the nation have come together to voice their opposition to the
tyrannies they perceive coming from the Patriot Act.
That you are holding this hearing today shows that you, as servants of the People, have
heard our collective voices and are willing to listen to our requests for change. We the
People are asking that you, as our elected representatives, reconsider the actions taken in
2001 and revise the USA PATRIOT Act to restore the natural rights bestowed upon us
and enumerated in the first ten amendments to the Constitution of the United States of
America.
Thank you for this opportunity to speak with you today in support of the principles of
freedom upon which our nation was founded.