One of the more galling statements made by Jim Sensenbrenner during last weeks' debate with Jim Burkee was how he helped pass the Patriot Act, which has protected us from terrorists while protecting our civil liberties.  In fact, he made the assertion that no civil liberties have been damaged by the bill.  That couldn't be farther from the truth.  Not his helping to pass the law... he did.  But rather that civil liberties haven't been harmed by that bill.  They have.  I'm referring specifically to what are called National Security Letters, which were made more widely usable due to sections of the USA Patriot Act.

A National Security Letter is a form of administrative subpoena which requires no probable cause to issue, and no judicial oversight in order to issue them.  They also contain a gag order which makes it a crime for the recipient of an NSL to disclose that fact.  They are often times used by the FBI to require third party data centers (such as ISP's, banks, and other institutions) to turn over information about someone under investigation.  Prior to the USA Patriot Act, a National Security Letter could not be used against a US Citizen, or a citizen who was not already under criminal investigation.  It also allowed agencies besides the FBI to use NSL's.

Between 2003 and 2006, some 200,000 National Security Letters have been sent out, and approximately 97 percent contained a gag order.  There is now a federal lawsuit challenging the gag order provision, although I think the entire concept of the National Security Letter is not only unconstitutional, but spits in the face of the 4th Amendment.

For God's sake... we fought a war over this!  I'm not talking about the Iraq War either... I'm talking about the Revolutionary War!  Prior to the American Revolution, these were called Writs of Assistance.  They were often used by customs officers who were searching for contraband.  Unlike an NSL, a Writ was given to a particular person, and was more like a permit which allowed the holder to search any property without cause.  However, because they were transferable, any writ holder could give his to someone else.  Writ's of Assistance are what caused many states to include warrant provisions in their state constitutions, and what would later lead to the adoption of the 4th Amendment in the Bill of Rights.

One the assertions that was made by Jim Sensenbrenner during the debate was that no provision had been held unconstitutional by a court (approximately 58 minutes into the debate which you can watch on Wisconsin Eye).  That is simply wrong.  In fact, the Dept. of Justice was ordered to stop issuing NSL's last year, but delayed the order pending a DOJ appeal.  He said in his ruling:

In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association -- particularly of expression that is critical of the government or its policies -- a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability.

Unfortunately, the ruling is limited to the use of NSL's against ISP's.  They can still be used freely against banks and credit card companies.  I haven't been able to find out the current state of any appeal.

What say you Congressman Sensenbrenner?  Would you care to take back anything you said during the debate?