Just in case he wasn’t familiar with it, Sen. Al Franken decided to read the Fourth Amendment to the Constitution to David Kris, assistant attorney general of the Justice Department’s National Security Division, who was testifying to the Senate Judiciary Committee today to urge reauthorization of expiring provisions of the USA Patriot Act.
Franken opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either. He’d also done research on the Patriot Act, he said, and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap a an unnamed target and his or her various and changing cell phones, computers and other communication devices.
Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part: “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.”
“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.
Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”
Kris explained that the courts have held that the law’s requirements that the person be described, though not named, is sufficient to meet the demands of the Constitution. That did not appear to completely satisfy Franken’s concerns.
Today’s Judiciary Committee hearing has so far proceeded much the way yesterday’s House Judiciary Committee subcommittee hearing did, with Democrats (except the Justice Department witness) expressing skepticism that the current law adequately protects Americans’ civil liberties and Republicans emphasizing the need to have all possible tools for law enforcement available because another major terrorist attack could occur at any time.
Daphne Eviatar is a law reporter for the Washington Independent.
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