We must protect rights in spite of inconvenience

The good news is that the U.S. House of Representatives is finally developing a little common sense (and perhaps even some latent respect for the Constitution) regarding the USA Patriot Act it passed in such haste after the terrorist destruction of Sept. 11, 2001.

The bad news is that the U.S. Justice Department is so arrogant it believes its function is to fight actions by the elected representatives of the people.

Last month, the House, by a 309-118 vote, passed an amendment to end authorization for what critics called the “sneak and peek” law. It was proposed by Republican Rep. Bruce Otter of Idaho.

The law allows federal authorities, upon declaring there is a suspected terrorism connection, to get a warrant (with less compelling evidence required than for a normal criminal search warrant) to conduct a secret search of a person’s house, papers and computers, without notifying that person of the search. In normal criminal investigations, if a search is conducted when the suspect is not present, law enforcement leaves a notification at the home or property searched.

The feds admit to having conducted 48 such searches. The advantages gained in the domestic war on terror, if any, have not been specified.

Almost immediately after the amendment passed, the Justice Department fired off an unsigned four-page memo to House Speaker Dennis Hastert decrying the “hastily adopted” measure.

Engaging a contest of dueling slogans, the memo — released to the news media, of course — called reversion to normal due process the “terrorist tip-off” amendment.

The Justice Department needs to be reminded of a couple of things. It is, first of all, part of the executive branch of government, charged under the constitutional scheme of division of powers with “faithfully executing” the laws made by the legislative branch, not with making the laws or telling legislators what laws it wants to enforce. In fact, many agencies are forbidden by law from lobbying Congress, although few refrain from the temptation.

The apparent eagerness of the Justice Department to retain these unprecedented powers, evidenced by the hasty preparation and release of a propagandistic letter, underlines the danger of giving authorities too much power, and the wisdom of our founders in trying to divide power.

Among the most important reasons to be concerned about terrorists who adhere to extreme or totalitarian ideologies is the damage they can do to the rule of law and the liberties the rule of law protects.

An important difference between a civilized society and the barbarism many terrorists prefer is precisely the willingness of a civilized society to adhere to procedures that protect the rights of citizens, even when it is inconvenient to do so. Of course it might be easier to track down suspects if government agencies had unlimited power, could operate in secrecy, could question anybody anytime for no particular reason and could imprison people on mere suspicion.

But do Americans want to live in such a society? Wasn’t the war conducted in part because Saddam Hussein did such things?

Congress, as the representative of the people, seems to have developed (though perhaps a little late) some sensitivity to the idea that not every conceivable expansion of power to make it convenient for those in law enforcement to spy on citizens is justifiable, even in a dangerous world. It is high time the Justice Department got the message.