Sen. Udall urges review of Patriot Act

Thanks for visiting The Daily Sentinel

Subscribers and registered users, log in to continue reading for free*

Forgot your password?    

Register to read for free! Become a subscriber

* 7-day subscribers have unlimited access to online content.
Registered users may read 12 articles per month.


Commenting is not available in this channel entry.

While the Daily Sentinel should be applauded for its editorial defense of citizens’ right to privacy (“DNA ruling weakens Fourth Amendment”) and for reporting on parallel threats thereto (“Phone-records monitoring cast wide net”; “Sen. Udall urges review of Patriot Act”), its reliance on Justice Scalia’s dubious minority dissent is problematic.

Scalia frequently masks weaknesses in his own arguments by ridiculing those of others (e.g. “taxes the credulity of the credulous”).  In Heller, Scalia dismissed as “bordering on the frivolous” the argument that the Second Amendment protected only “arms” familiar to the Founders.  However, perhaps even more fantastical is Scalia’s implied contention that – had those Founders known about or collectively anticipated the proliferation and lethality of contemporary “personal” firearms – they would nonetheless have worded the Second Amendment no differently. 

As the Sentinel expressly acknowledged – but contrary to Scalia’s dissenting assertion—the Fourth Amendment is by no means “categorical and without exception”, but rather explicitly prohibits only “unreasonable searches and seizures”.  Thus, the legal questions were whether DNA cheek swabs are dispositively less “reasonable” than fingerprints and photographs taken at booking incident to any lawful arrest – whether or not justified, and whether such identifiers, once legally taken, can lawfully be used to solve other crimes.

A similar analysis applies to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), the USA Patriot Act of 2001, and the Protect America Act (FISA Amendments) of 2007.  Thus far, only the Patriot Act’s “National Security Letter” subpoenas have been declared unconstitutional – because they did not permit judicial review if challenged – but what was considered “reasonable” immediately after 9/11 may no longer be.

Indeed, while the facial constitutionality of FISA has been consistently upheld, recent revelations may support an “as applied” challenge to its “business records” provisions. 

Meanwhile, the Constitution itself remains completely silent as to “privacy”.

Search More Jobs

734 S. Seventh St.
Grand Junction, CO 81501
Subscribe to print edition
Sign in to your account

© 2014 Grand Junction Media, Inc.
By using this site you agree to the Visitor Agreement and the Privacy Policy