Members of Congress are expressing outrage after Department of
Justice and FBI lobbyists tucked an unseen provision into an anti-drug
bill that expands their power to conduct “black bag” jobs, allowing them
to enter homes, conduct searches and seize certain items without telling
Congressional critics and civil liberty advocates are charging that
the measure, part of the Methamphetamine Anti-Proliferation Act (
2987, S. 486), would be in direct violation of the Fourth Amendment.
The bill, which was approved by the Senate on Nov. 19 by unanimous consent, is scheduled to be considered by the full House Judiciary Committee this morning. One committee member, Rep. Bob Barr, R-Ga., told WorldNetDaily that he intends to offer an amendment to remove the offending sections of the bill.
According to Barr, even though the changes would come from an anti-drug bill, the provisions in question would apply to virtually any search conducted by the federal government.
“This isn’t dealing with just drug investigations; it changes the section in the U.S. Code that deals with federal warrant notice and inventory requirements,” he said. “That’s the primary reason I object to it, because it affects all criminal law.”
Current law requires federal agents to announce their presence before entering a premise and to provide an inventory of confiscated items at the time that they are seized. But buried at the end of the “Defeat Meth Act” lies Section 6, entitled “Notice Clarification,” which would allow searches of homes, vehicles and workplaces without any notice. The provision would also allow federal law enforcement officials to make copies of “intangible” items, such as computer drives and financial documents, for future examination without ever informing the person subject to the search that the items had been seized.
Another section of the bill would relieve agents from giving property owners subject to the secret searches an inventory of seized items — leaving citizens completely blind to the government’s actions.
“This bill would gut the Fourth Amendment, because how can a person challenge a warrant if they never find out about it until after the harm has been done?” questioned David Kopel, research director for the
Independence Institute and a leading constitutional scholar.
Barr said he became aware of the bill’s provisions late last week and began to contact other congressional members to organize an effort to strip out the offending portions when the bill comes before the Judiciary Committee for mark-up today. His efforts face an uphill battle because Rep. Chris Cannon, R-Utah, the bill’s House sponsor, and Sen. Orrin Hatch, R-Utah, the chairman of the powerful Senate Judiciary Committee, are defending the provisions as necessary for law enforcement officials to conduct their duties.
He also said that he was surprised to learn that the exact same provisions were included in a bankruptcy reform bill, HR 833, that passed both houses earlier this year and is currently being considered by a conference committee.
“We’re talking with the conference committee members to get it removed from the bankruptcy bill. They met on Thursday evening and discussed it,” he said. “We’re remaining hopeful, but nothing has been finalized yet.”
Barr, a former federal prosecutor, also sharply criticized the Justice Department and FBI for burying the far-reaching measures in an unrelated bill.
“This is typical behavior from the DOJ and the FBI on these types of issues. Rather than having a fair and open hearing where members can weigh the proposal on its merits, they go to one of their allies in either house and have it slipped in a bill,” he said. “That’s certainly not the way to conduct business when you’re dealing with people’s civil liberties.”
Kopel echoed those sentiments, saying that the FBI has difficulty trying to pass liberty-eroding legislation.
“They’re sneaking it into a bill because they know it can’t stand the scrutiny of public inquiry,” said Kopel. “They understand the American public would not be happy if they found out that their civil liberties are under assault from the very people charged with defending the Constitution.”
This is not the first time that the Justice Department has resorted to covert tactics to implement unpopular measures. In the last few hours of the 1994 session, for instance, Congress enacted the Communications Assistance for Law Enforcement Act, which required telephone firms to configure their equipment to make it easier to wiretap the nation’s communication systems. The law passed over strong opposition from civil liberties organizations after the FBI promised telephone companies $500 million to help pay for the equipment upgrades.
The FBI used a similar tactic in the last days of the 1998 session, when it was able to drop roving wiretap language into the Intelligence Authorization Act of 1999, authorizing law enforcement agencies to tap telephones used by or near targeted individuals rather than requiring authorization to tap specific phones. The insertion, made by Rep. Bill McCollum, R-Fla., happened during a conference committee after both houses had already voted on the bill, despite the fact that the very same measure had been rejected by both houses when it was offered as an amendment to the 1996 Anti-Terrorism bill.
Despite these setbacks, Kopel remains hopeful, yet cautious, as he sees an increasing awareness by citizens of the attacks on their constitutional rights.
“The defenders of civil liberties are more numerous and energetic than ever before, with the ability to reach out in broad coalitions across the conservative-liberal spectrum,” he said, noting that the
ACLU had joined in the fight against the “Defeat Met Act”
“If a man’s home is his castle, this secret search provision is a tunnel under the moat,” said Marv Johnson, legislative counsel for the ACLU’s Washington, D.C., office.
Last week the ACLU and the National Association of Criminal Defense Attorneys sent a joint letter to members of the House Judiciary Committee requesting that the secret search provision be removed from the bill.
“It’s a good thing that we’re starting to see this groundswell,” said Kopel, “because no president since Woodrow Wilson has been so hostile to civil liberties and the Constitution as Bill Clinton.”
Patrick S. Poole writes frequently on civil liberty issues and is a professor of government and economics at Bannockburn College in Franklin, Tenn.