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Why Patriot Act Reform Matters: 767 Days and Counting Without a Privacy and Civil Liberties Oversight Board

In 91 days, three central search, seizure and surveillance provisions of the Patriot Act are set to expire again. The period between now and then is an opportunity to drum up support for reforms to these provisions.

Why is it so important to reform the Patriot Act?

From a legal point of view, the Patriot Act is an affront, standing in violation of the supreme law of the land, our Constitution. Because the Patriot Act allows for surveillance of law-abiding Americans, because it allows searches and seizures of their property and papers without a demonstration of probable cause of a crime, without specification of person, place or things to be searched, it is a ten-year old glistening spit on the text of the Fourth Amendment, which clearly states:

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.

If the United States Government can do anything it wants in this regard, regardless of the limitations specified in the U.S. Constitution, then the United States Government can do anything it wants, period. The rule of law is a principle that should not be chucked aside like an old cigarette butt.

Secondly, it is important to reform the Patriot Act because, despite the frequent insistence of politicians that it is a tool against the evil terrorists lurking invisibly in the shadows, in the last two years for which data is available Patriot Act powers were used for reasons not related to terrorism more than 99% of the time. Unreasonable search and seizure (“unreasonable” means without demonstrated reasons) powers of the Patriot Act are being used to target your neighbors for reasons that have nothing to do with Osama bin Laden.

Thirdly, it is important to reform the Patriot Act because the legally-required oversight of the use of Patriot Act powers is absent. President Barack Obama is required by federal law to appoint five members to sit on a Privacy and Civil Liberties Oversight Board, an independent body with full subpoena power and public reporting duties. The job of the PCLOB is to find out how the government is using its surveillance, search and seizure powers, to determine whether the use of these powers is in line with the Constitution, and to release its findings to both the Congress and the public every six months.

We are now 767 days into the presidency of Barack Obama, more than halfway through his term in office. President Obama failed entirely to nominate anyone to the Privacy and Civil Liberties Oversight Board until December, when he submitted the names of Elisabeth Cook and James X. Dempsey — two people — in nomination to sit on the board.

Since then, the Senate Judiciary Committee has failed to proceed with hearings or a vote to confirm these two, leaving the Privacy and Civil Liberties Board completely unstaffed. Even if the Cook and Dempsey were confirmed tomorrow, the PCLOB would have no power to proceed with its activities, because by law in order to meet and carry out its duties three members must be present. As a review of White House communications shows, no third member of the board has been nominated.

Do you think it is a good idea to reauthorize an unconstitutional law used without oversight against your neighbors for reasons having nothing to do with terrorism? Or do you think it’s finally time to restore the rule of constitutional law and reform the Patriot Act?

If your answer to the first question is NO and your answer to the second question is YES, then your window of opportunity to act is the next 91 days.

Contact your Senators and your Representative, by all means. Write a letter to the editor of your paper, yes.

But consider doing more.

At noon on Saturday March 12, Americans will gather on the West side of the U.S. Capitol Building with one aim: to protest the Patriot Act. Millions of Americans live within easy traveling distance of Washington, DC. If you are one of those millions of people, will you sit on your hands in the face of the triple injustice of the Patriot Act? Will you slouch on your couch, watch college basketball on the TV, and eat chips while your liberty drains away?

Or will you be there?

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