“The American Constitution - the American system of government with a written and popularly accepted Constitution which shows and demonstrates the primacy of the individual over the state - is the greatest political achievement in the history of the Western World.

“Nowhere is the government’s fidelity to the limitations imposed upon it by the Constitution and the guarantees of human liberty which it is required to honor - nowhere is that behavior more sorely tested than in war time. …”

“Remember from basic high school American history when we were colonists and the king was looking for cash? Parliament enacted among many abominations the Stamp Act. The Stamp Act required that for every document - whether it be a poster on a tree, playing cards that you would use in your home, a bank check to the extent they existed at the time, or a mortgage, or a lease, or a deed - every document for it to be lawful in the colonies had to bear the king’s stamp. You had to go to a government office and buy a stamp, and that’s one of the ways that the British government raised money from amongst the colonists.

“How did the British government enforce the Stamp Act? It sent soldiers to your home with the proverbial knock on the door asking to see your stamps.”

“How did the soldiers get into the homes of the colonists? The king addressed that problem. The Parliament enacted the Writs of Assistance Act. A Writ of Assistance was a warrant so broad and so general, devoid of scope, devoid of subject matter, devoid of geographic limitation that it literally allowed the king’s soldiers to go wherever they wished and commentators have referred to the Writs of Assistance as virtually self-written search warrants because it was a document that would allow the soldiers to go as they wanted.”

“The rest is history. We fought a revolution. We enacted a Constitution. We added a Fourth Amendment. The Fourth Amendment prohibits Writs of Assistance. It condemns the concept of self-written search warrants. It specifically requires that, before the government can come on to your property, whether it is to look for your stamps, or your marshmallows, or your children, it has to get a search warrant, and, in order to get that search warrant, it must go to a neutral judge, state or Federal, and present that judge with evidence which the Constitution calls probable cause. Simply, enough evidence to demonstrate that it is more likely than not that the target has engaged or is engaging in criminal activity and the search warrant is likely to be fruitful. After presenting that evidence to the court, the court will decide whether or not to sign the search warrant.”

“For 200 years, Americans enjoyed that enforcement of the Fourth Amendment. We could sleep at night with a certain knowledge and security that, if the government was going to knock at the door or break it down, it would only be after a judge scrutinized the government’s efforts and specifically authorized it to do so.

“Comes now the Foreign Intelligence Surveillance Act of 1977 known popularly by the acronym, FISA. FISA creates a super secret Federal court where (we’re told) it meets in the sub-basement of the Justice Department but, because we can’t see the record of where it meets, no one knows where it meets.

“FISA authorizes the government to come before this secret court, and by demonstrating the existence of probable cause - not that a crime has been committed, but that a human being is an agent of a foreign government - authorizing the surveillance of that human being.

“Now an agent of a foreign government could be an agent of a friendly government, it could be an employee of the government not engaged in any espionage or spying activity.

“FISA, believe it or not, actually has a protection for civil liberties in it because it limits the government’s ability to use the information obtained from a FISA warrant for one purpose and one purpose only, and that is to kick the offender out of the country.

“If, for example, a person is holding himself out as a journalist from a foreign government and that person is truly a spy for that government, the information obtained from a FISA warrant cannot be used for any criminal prosecution. Why? Because it wasn’t obtained with the true Constitutional ‘probable cause’. The person could be kicked out of the United States.”

“In 1986, the Congress again tinkered with the Constitution when it enacted the Electronic Privacy Act of 1986. As I am sure you know from the way the government names statutes, the Electronic Privacy Act has nothing to do with protecting your privacy. It has about as much to do with privacy as the Patriot Act has to do with patriotism.

“Nevertheless, the Electronic Privacy Act expands FISA so that the target need no longer be an agent of a foreign government, but the target could be a foreigner, a person not native to the United States. The other expansions of the ability of this secret court to give search warrants are for those engaged in organized criminal activity, whether foreign or domestic, and then the Congress decided to allow FBI agents (when the need arises in their own minds and when surveilling a foreigner) to write something called a national security letter; again, a government euphemism for an abomination.”

“A national security letter is what the king authorized under the Writs of Assistance Act, a self-written search warrant. It took 200 years for them to come back, but back they came.

“Not because the Parliament of England and a king 3,000 miles away authorized them, but because our elected government in this city and the President of the United States signed the Act, allowing FBI agents to write their own search warrants. The targets of these search warrants were intended to be financial institutions.

“Now, under the Electronic Privacy Act of 1986, if the government wished to examine the financial records of a foreigner or a person engaged in organized criminal activity, it would simply serve the warrant on the financial institution without going to a judge and demonstrating probable cause.

“What would the financial institution do? It would call up the person whose records were sought and say: We received a warrant from the government for your financial records. We intend to comply with that warrant in the next 10 days unless you produce a document instructing us not to do so. You had time to call a lawyer. You had time to find out what the government was looking for, who the government was, what they wanted, and to challenge that warrant before a judge.

“You would argue whatever the facts were as to why the government shouldn’t get what it was looking for. The government would argue against you before a Federal judge. It wouldn’t be the judge who issued the warrant because the warrant wasn’t issued by a judge, it was issued by an FBI agent.

“Either way, however, you had your day in court. The judge ruled either the FBI agent is right or, no, this is the wrong bank account, or there is not even [a] prima facie case here as to why the government should get your records.”

“Comes now 2001 when the government enacted the Patriot Act. The Patriot Act is the most abominable, unconstitutional, Congressional assault on liberty since the Alien and Sedition Acts of 1798 made it a felony to criticize the Federalist government in this city.

“Giving up liberty in return for safety not only violates the natural law, not only violates the reasons for which we have come together as a government, not only violates the principles of the Declaration of Independence and the Constitution itself, but it doesn’t work.”

“There isn’t a single instance in American history where giving up liberty has brought us more safety. There is not one documented event in American history where the national security was impaired because some person in the United States insisted on their right to speech, or their right to privacy, or their right to due process.

“Well, the Patriot Act says: Yes, the government can write those self-written search warrants. Yes, the FBI can do so, but, if you receive a self-written search warrant, you cannot tell anyone about it.

“You can’t tell Fox News or The New York Times or the CATO Institute - or even your spouse or your lawyer that you received a self-written search warrant from an FBI agent.

“Why? Because the Patriot Act makes it a crime to speak about what the government is pursuing you for.”

“Wait a minute! Doesn’t the First Amendment say: “Congress shall make no law…abridging the freedom of speech”?

“Never mind says the Congress. The times are too perilous. The enemy is too dangerous. He is too slippery and too volatile. We can’t allow people speaking about those we are pursuing.

“Those financial institutions … can’t tell you that they received a self-written search warrant as well.

“So now the government - without the involvement of the Judicial Branch, in direct violation of the Fourth Amendment - can go to a financial institution and obtain your records without you even knowing it.”

“Comes as well, the Foreign Intelligence Authorization Act of 2004, signed into law on December 13, 2003, a day in which every one in this room will remember because of an event in human history that occurred on that day.

“The Foreign Intelligence Authorization Act redefines ‘financial institution’. Remember the Intelligence Act of 1986? We can get the records from a financial institution. Remember the Patriot Act? We can get the records from a financial institution - and they can’t tell you that we have sought your records.

“So the Foreign Intelligence Authorization Act purports to say what is a financial institution. Well, you know by now that it is more than just a bank. In addition to a bank it is the following: a hotel, a casino, a restaurant, a bodega, a delicatessen, a lawyer’s office, a real estate agent’s office, and that great wonderful financial institution in which we would all repose our wealth, the post office.

“So for the first time in American history, from the Patriot Act and the Intelligence Authorization Act of 2004, the government can read your mail before you do and without you knowing it and without the involvement of a judicial officer whatsoever.”

“And, if the government chooses not to prosecute you on the basis of what it learns from these ‘financial institutions’, here is the kicker, if you’re not prosecuted, you will never know that the government has obtained these records and documents about you.

“Oh, December 13, 2003, what happened on that day? Why was the Intelligence Authorization Act of 2004 signed on that day? It was the day we captured Saddam Hussein. The government knew signing a piece of legislation like this would be buried in the newspapers and not even recognized until a month later.

“Recall about a year ago our now outgoing and then in full flourish Attorney General John Ashcroft proposed a Patriot Act II, widely derided by liberals and conservatives alike. We don’t need these additional powers. After all, Mr. Attorney General, since October 15, 2001, when Patriot Act I was enacted not a single successful prosecution in the war on terror has taken place on the basis of evidence obtained from the use of the Patriot Act - not one. So why do we even need a Patriot Act II? And the proposals sort of drifted away and we didn’t hear about them again.”

“Well we heard about them last week. Were they a part of the original Intelligence Reform Act? No. Were they part of the Intelligence Reform Act that was debated by Congress? No. Were they part of the Intelligence Reform Act that was held up by the House Republican leadership? No.

“Where did they come from? They were added by the House and Senate conferees. These are additional powers given to the government and regulations imposed upon the Judicial Branch.

“If the government declares that a defendant is a terrorist, it is presumed that the defendant is not entitled to bail.”

“Wait a minute! Doesn’t the Constitution protect persons? Doesn’t the due process clause give guarantees to persons, not just citizens? …

“Oh, and remember FISA. Remember how the target originally had to be an agent of a foreign government and then the Act in 1986 said it could be any foreigner. They have changed it again.

“Now, the target of either a FISA search warrant or a self-written search warrant need only be --- are you ready for this --- a lone wolf. What in the name of God is a lone wolf? Anyone the government wants to say is a lone wolf. A person acting independent of all others, not affiliated with or regulated by a foreign government or any organization whom the government deems to be dangerous. …

“(T)here is a perception amongst the 535 who work on Capitol Hill - I say work - I can’t imagine any of them read the Patriot Act. We know only two did and one of them is dead. … The other is Russ Feingold. Senator Feingold, of course, voted in favor of the Intelligence Reform Act of 2004 because he thought he knew what was in it, in fairness to him. He hadn’t had a chance to read [it] because they didn’t give it to him - the revised version that came out of the House/Senate conference. …

“In World War I, they were Eastern European Jews arrested by the thousands by one of General Ashcroft’s predecessors - arrested and incarcerated without charge or opportunity to defend themselves.

“In World War II, they were Japanese-Americans by the hundreds of thousands and, to a much lesser extent, Italian-Americans arrested by one of Don Rumsfeld’s predecessors - arrested and incarcerated without charge.

“In the War on Terror, they are Arab-American young men in their twenties without political assimilation or power or access.