THE NEW SENATOR FROM MINNESOTA BRAZENLY QUESTIONS THE GOVERNMENT’S SURVEILLANCE SUBTERFUGE BUT CAVES AT CRUNCH TIME.

by Nat Hentoff
From HUSTLER MAGAZINE March 2010

I was not a fan of Al Franken’s comic turns, much preferring those instigators who went deeper into our hypocrisies, namely Lenny Bruce, Dick Gregory and Richard Pryor. But Franken has suddenly begun his career in the U.S. Senate as a mentor on the Constitution’s rule of law—a dim memory, if that, for many of his colleagues.

To his surprise, and mine, Franken won a seat on the Senate Judiciary Committee even though he is not a lawyer. But unlike many lawyers in the Senate, Franken has deeply researched the largely un-American USA PATRIOT Act. Rushed into law soon after 9/11 before most members of Congress had a chance to even read it all, its draconian provisos remain almost entirely intact.

On September 29, 2009, David Kris—assistant attorney general of the Justice Department’s National Security Division—appeared before the Senate Judiciary Committee. Kris was pitching to renew a section of the PATRIOT Act that permits the FBI to obtain a warrant from the secret Foreign Intelligence Surveillance Court, which does not allow appeals from us mere citizens, thus totally repealing the Fourth Amendment in the Bill of Rights.

These are “John Doe” warrants that do not denote the suspect’s name, nor the specific location of the phone, e-mail or any other device the suspect may use. It could also be a pay phone in any neighborhood.

If this unnamed suspect uses a phone in your office, a bar you frequent or a social club or nearby pay phone, the FBI tap on those phones will pick up all conversations, including yours. And these are national wiretaps; the FBI doesn’t have to get a warrant from any city or state jurisdiction. We’re all immediately covered. Neither President Obama nor his attorney general, Eric Holder, has expressed any objection to this torpedoing of the Fourth Amendment.

When the Justice Department’s David Kris was telling the Senate Judiciary Committee how vital these roving tools against terrorism are, Franken startled him and, I expect, most of the rest of the committee. The freshman senator announced that after taking his seat, he was given a copy of the Constitution—and by gum he actually read it!

Franken then read aloud the actual Fourth Amendment to the Justice Department official who had been extolling roving wiretaps: “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.”

Looking at this representative of our Justice Department, Franken said, “That’s pretty explicit language.” So how can roving wiretaps be within the rule of law if they don’t particularly name the targeted suspect or the particular place to be tapped?

Assistant Attorney General David Kris fumbled and sputtered, “This is surreal.”

It sure is! How many times since the Bill of Rights was ratified in 1791 has a member of Congress, an attorney general or a President asked a law-enforcement agent or a prosecutor to define any part of the Bill of Rights and then justify a law that turns the Founders’ language upside down?

Senator Franken’s target, the man from the National Security Division, finally said that the courts had ruled that even if the FBI didn’t name the suspect or the particular place for the wiretap, a description of the target would satisfy the Constitution.

Think about that. Just a description? How many people resemble you in a general way? Height, hair color, posture, gait, skin color, age as far as can be guessed, attire, facial characteristics?

Franken’s question that seemed so “surreal” to government lawyer Kris has deep roots in our history as a precipitating cause of the American Revolution. The Founding Fathers gave us the Fourth Amendment because King George III’s officers in the American colonies used what they called “a general search warrant” to invade homes and offices without going to any court. The British king’s men wrote those warrants themselves.

When Samuel Adams and the Sons of Liberty sent details of the brutal abuses of these “general warrants” around the colonies through the Committees of Correspondence (the Internet of the time), the cumulative outrage was a significant factor in igniting the American Revolution.

But little American history is now being taught in our schools, and there have been no rallies or marches in the streets by outraged citizens protesting roving wiretaps. Congress may eventually tweak roving wiretaps a trifle if a patriotic senator has taught American values to enough of his or her colleagues. But anyway, watch what you say on the phone or on the Internet.

But why doesn’t Washington’s elite press corps ask President Obama, who purportedly once taught Constitutional law, about using wiretaps and to define the stark differences between his disregard for the separation of powers, due process, torture practices, etc., and the commands of the Bill of Rights and the rest of the Constitution?

I’d suggest you write such questions directly to the President, but affixing your name to such critical messages comes with a caveat. You might well be put in a database the FBI employs to search for “patterns,” possibly making you a “person of interest” not only to the FBI but also to Homeland Security and state and local police. After all, we continue to live in an ever-expanding surveillance society.

But now, guess what? Al Franken finally voted to keep roving wiretaps unchanged in the PATRIOT Act bill that the Senate Judiciary Committee recently sent to the floor for further debate. So much for Franken’s Fourth Amendment principles! Whom can we believe these days?

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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; and the forthcoming Is This America?

You may purchase the hard copy of the March 2010 Issue of HUSTLER Magazine (with free shipping) at HustlerMagazine.com. Comes with full length DVD and free shipping!

You may purchase a digital copy of the March 2010 Issue of HUSTLER Magazine at UnderCoverMags.com.

BOTH IN AND OUT OF POLITICS, most liberals and conservatives share a deep conviction that, as George W. Bush has said, “there are limits to free speech.” From both sides, there is now a focus on getting government to mandate a “fair balance” of views on talk radio. Says conservative Senator Trent Lott (R-Mississippi), the famous eulogist for Strom Thurmond and once an icon of white supremacists: “Talk radio is running America.We have to deal with that problem.”

Meanwhile, the liberal, Washington-based Clintonian Center for American Progress has reminded Congress that “radio stations are licensed to operate in the public interest” and that the predominance of conservatives on talk radio “does not meet any reasonable public- interest standard.”

As a practitioner of heretical free speech, I am also reminded by the Clintonian Center’s concerns that safeguarding this fundamental freedom in any society has necessitated a fierce battle to prevent government from licensing any speech.

Nonetheless, Senator Dianne Feinstein (DCalifornia) attacks talk radio as “one-sided, dwelling in hyperbole” and “pushes people to extreme views.” She is leaning toward revival of the Fairness Doctrine to tame talk radio. During those golden, balanced years, she said on Fox News Channel during a dialogue with Trent Lott, “there was much more serious, correct reporting.”

Correct to whom?

From 1949 to 1987 the Federal Communications Commission enforced the Fairness Doctrine, which required radio stations to “devote a reasonable amount of time [according to FCC bureaucrats] to the discussion of controversial issues of public importance” and also “afford a reasonable opportunity for conflicting views” to be heard. A station failing to obey the doctrine could lose its license.

During the early years of that regimen, I was a full-time announcer and newsman at WMEX in Boston. Whenever the boss got a letter from the FCC with a listener’s complaint that we were being unfair, he called the station’s lawyers, had them review tapes of the offending broadcasts and became increasingly agitated. Finally, he summoned all of us and commanded that from then on there would be no controversy of any kind on WMEX airwaves.

Other radio stations around the country greatly cut down on anything resembling controversies, and Democratic and Republican administrations alike used the doctrine to punish stations favoring their opponents. For example, during the 1969 antiwar demonstrations—as the Wall Street Journal ’s John Fund and others have noted— President Richard Nixon “issued orders 21 times to aides to take specific action relating to what he considered unfair network news coverage.”

At last, in 1984, the Supreme Court—finally aware that with the growing profusion of radio and television stations, there was no scarcity of conflicting views on the air—ruled there was no need for the Fairness Doctrine (FCC v. League of Women Voters ).

Three years later the FCC itself emphatically declared that “the intrusion of government into the content of programming occasioned by the enforcement [of the Fairness Doctrine] restricts the journalistic freedom of broadcasters…[ and] actually inhibits the presentation of controversial issues of public importance.”

Undaunted, speech police around the country got Congress to revive the Fairness Doctrine in 1987! The margin in the House was 3 to 1, and it passed the Senate by nearly 2 to 1. But a former veteran of sports radio and television, President Ronald Reagan, vetoed the return of government intrusion into broadcast programming.

However, a stake was not driven into the heart of the Fairness Doctrine. In the House this year, Representative Maurice Hinchey (DNew York) reintroduced his Media Ownership Reform Act, which will prevent what he considers excessive ownership of the nation’s media outlets and also restore “fairness in broadcasting.” As before, broadcasting licenses will be taken away for failure to respect and revere the Fairness Doctrine. A Feinstein revival of the doctrine could well emerge in the Senate.

I suggest to Congress that unlike the wholly controlling government in George Orwell’s 1984, nobody in this country is compelled to listen to what they do not want to hear. And as to the undemocratic notion that “the public interest” mandates a government “balancing” of broadcast views, I bring forth as a witness a founder of this nation who exercised his heretical views at great peril when he wrote the Declaration of Independence.

“The legitimate powers of government,” Thomas Jefferson proclaimed, “reach actions only—and not opinions.”

Suddenly, on June 29 of this year, we were saved, for the time being, from the government managing political and other speech on the public airwaves when the House voted 39 to 115 to prohibit the Federal Communications Commission from restoring the Fairness Doctrine.

However, Democratic senators Feinstein and Dick Durbin (Illiniois), among others, would still like to see the return of the bureaucrats deciding the right “balance” for us in broadcasting. And a new President with a differently composed Congress could eventually bring back this doctrine that was, as I’ve noted, restored for a time even after the Supreme Court and the FCC declared it unconstitutional. So be forewarned!

Indeed, on the very day of the vote in the House, WNYC—New York City’s public radio station—invited me to come on for a forthcoming debate with a representative of FAIR, a liberal organization that has a selective view of the First Amendment. I happily accepted the invitation to defend our First Amendment right to decide for ourselves the fairness of what we hear.