Rep. Nugent Defends PATRIOT Act Vote; 1787 Contributor John Baeza Responds

By John Baeza
1787 Network

U.S. Representative Richard Nugent, a Republican representing Florida’s 5th District, responded to our request to comment on his “YES” vote to extend three key provisions of the PATRIOT Act this week.   His response came in the form of an email, included below.

Retired detective, Constitutional scholar , and 1787 Network contributor John Baeza was gracious enough to respond.  John’s responses are in bold.

NUGENT: Thank you for getting in touch with me about the PATRIOT Act.  As our Founders made clear in the Preamble of the Constitution, providing for the commondefense is one of the most fundamental responsibilities that the federal government has.  And as your representative in the federal government, it is critically important that I know where you stand on our national security policies.

BAEZA: The proper role of government is to secure our liberties.  The role of government is specifically laid out in the Declaration of Independence.  Jefferson wrote, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  That to secure these rights, Governments are instituted among men…”  Congressman Nugent, we need to know where you stand on the Constitution and you have made it crystal clear, by your vote on this matter, that you do not yet understand the intention of the Founders and the Ratifiers of this great document.  You mention the Constitution once in this letter.  You also mention the “common defense” which is telling.  The “common defense” does not negate the Fourth Amendment or any of the Bill of Rights.

NUGENT: As you know, the PATRIOT Act was first enacted by Congress shortly after the 9/11 terrorist attacks of 2001.  Those attacks revealed a glaring weakness in our national security posture.  In response, intelligence and defense officials, as well as members of the legislative and judicial branches, were faced with the question of how to rapidly improve our ability to monitor threats and anticipate attacks without compromising the civil liberties that we as Americans hold so dear.

BAEZA: The “glaring weakness” you speak of was in fact our intelligence agencies failure to investigate the mountain of evidence that a 9/11 event was to occur.  This is laid out in various books.  The most definitive and sourced books are authored by Peter Lance. One book you may have, and may want to read cover to cover, is the official 9/11 report.  Although lacking in full details, this report shows the ineptitude of our intelligence agencies.  As a former law enforcement officer who has served for many years, you certainly are aware of the lack of cooperation and intelligence sharing among many agencies.  You are also aware the many, but not all agencies, are filled with top level bureaucrats who are more interested in their careers than in performing their assigned duties.  This is exactly what occurred during the 1993 and 2001 World Trade Center attacks.  In fact, it is an indisputable fact that some of our intelligence agencies were fully aware of the “planes as missiles” plan as early as 1993.  Our country did not need the Patriot Act; we needed our intelligence agencies to do their jobs.  Obviously they did not, and thousands of our citizens died on that tragic day.  Make no mistake, the attackers and planners were murderers and should be treated as such, but we do not and should not give up our liberties for temporary safety.  The Founders would be ashamed of us if we sacrificed our liberties.

NUGENT: The nature of the new threat was clear.  America no longer faced an enemy wearing a uniform.  Today’s enemy moves in secret.  They use the Internet and mobile technology to maintain their structure and enable their operations, but they do not have borders.  They do not have a standing army.  Today’s enemy is making every effort to physically infiltrate our country and those of our allies.

BAEZA: Our Founders provided the answer to the problem of a, non-uniform, nameless, and nation-less enemy. It is provided for in the Constitution under Article 1, Section 8, Clause 11:  To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.  Letters of Marque and Reprisal allow pursuing the nation-less enemy.  A bill introducing this concept had no support from a well-intended but a constitutionally ignorant Congress.

NUGENT: Supporters of the PATRIOT Act in Congress perceived the changes made by the PATRIOT Act as necessary to expose terrorist cells and update their investigative authorities to respond to the new technologies and tactics used by our enemy.

BAEZA: As stated above, we knew of the terrorist’s intentions years before the 2011 attack and did not need to update investigative authorities.  Law enforcement must adapt to new technologies within the confines of the Constitution and the Bill of Rights.  Any thing else is implying we have a “living” Constitution. I certainly hope you do not believe in a “living Constitution.”

NUGENT: The most controversial sections of the act permit the federal government’s collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations.  Given the sensitivity of these tools and the grave consequences of their misuse, authorization for these programs was intentionally made temporary.  Congress would have the opportunity and the responsibility to review these tools from time to time and we are at such a moment now.

BAEZA: This does not change the fact that the tactics to obtain this information is Unconstitutional.  Period.

NUGENT: Prior to the PATRIOT Act, electronic surveillance was limited by the requirement that the government clearly identify the specific location targeted.  This allowed suspected terrorists to easily circumvent wiretaps by moving to a new location and using a new cell phone or laptop.  In a day when suspected terrorists have direct access to multiple mobile communication devices, it is essential that law enforcement agents remain one step ahead of those who seek to harm American citizens.  This authority, known commonly as “roving” surveillance authority, has been used for years against organized crime and without legal challenge.  The PATRIOT Act merely served to expand the authority to cover terrorists.

BAEZA: Prior to the PATRIOT Act the government, to some extent, abided by the Fourth Amendment to the Bill of Rights.  As stated above, when people use new technologies it is up to the authorities to keep up with them under the Bill of Rights, especially the Fourth Amendment:  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”  As other patriot statesman have said, “the “roving wiretap” provision, section 206 of the PATRIOT Act, which is also scheduled to expire on the 28th, does not comply with the Fourth Amendment. This provision makes possible “John Doe roving wiretaps,” which do not require the government to name the target of the wiretap, nor to identify the specific place or facility to be monitored.  As for the past use of “roving wiretaps” – as stated in the PATRIOT Act- I would like to know where they conduct these. Law enforcement agents who always had to name the suspect and the location of the wiretap-as well as abide by other restrictions- would inevitably have to find another legal way to follow these suspects.  Law enforcement has done this and they still do.  This provision of the PATRIOT Act. Is Unconstitutional and goes against everything this country stands for-freedom.  Your use of the word “merely” in the last sentence of the paragraph frightens me.  Our representatives want to “merely” change the constitution.  George Washington, Thomas Jefferson and the other Founders would be appalled.

NUGENT: In addition, this legislation also extends through December 8, 2011, provisions that define an “agent of a foreign power” to include any non-U.S. person who engages in international terrorism or terrorism-preparatory activities.  Essentially, this portion of the legislation simply allows the government to subject an individual terrorist to the same type of surveillance used to monitor foreign intelligence agents or members of an international terrorist organization.

BAEZA: “Terrorism-preparatory activity.”  Just what does this entail Congressman?  And your statement. “Essentially, this portion of the legislation simply allows the government to subject an individual terrorist to the same type of surveillance used to monitor foreign intelligence agents or members of an international terrorist organization” makes no sense considering the first sentence of the paragraph.  Please treat your constituents as intelligent human beings and do not try to confuse us with gibberish.

NUGENT: Providing for the common defense in today’s era means combating terrorism wherever the terrorists are and whoever they are.  As a 38 year veteran of law enforcement (the last 10 years as Sheriff of Hernando County) I have watched the criminals change and evolve with the times.  I know for a fact that terrorists who hate our country and way of life have done the same.

BAEZA: Providing for the common defense does not give Congress the power to legislate away the Constitution and the Bill of Rights.  As a former long time law enforcement officer you should be fully aware of the provisions of the Bill of Rights and specifically the Fourth Amendment.  Yes criminals do change with technology, but so must law enforcement as long as they abide by the Constitution and the Bill of Rights.  If you believe otherwise you are advocating a “living” Constitution.  As for your statement referring to terrorists who “hate our country and way of life” I would reply that study after study has shown that terrorists do not hate us for our way of life, they hate us because we occupy their countries.  If you have questions about this statement please read “Dying to Win” and “Cutting the Fuse” by Robert Pape and any article by former CIA official Phil Giraldi.  The absolute best book to read on the Unconstitutional PATRIOT Act is “A Nation of Sheep” written by Judge Andrew P. Napolitano.

NUGENT: After careful consideration of both sides of this issue, I joined with my fellow Tea Party Caucus members Michelle Bachmann (R-MN) and Mike Pence (R-IN) in voting to approve this 10 month extension.  With over 90 new Members of Congress, we need time to hold hearings to determine the effectiveness and appropriateness of these security measures.  While the authorities granted our law enforcement agencies expire from time to time on a schedule, the threat our nation faces does not.  Until the new Congress has had an opportunity to review both the current policies and their implementation, I am not comfortable allowing these provisions to expire.

BAEZA: I care not who you voted with, I care how you voted.  Your vote on this issue violated your oath to the United States Constitution.  Period.  You know, as a former law enforcement officer, that the provisions you voted to extend are completely at odds with freedom and the Constitution.  You should be very aware of the Fourth Amendment to the Bill of Rights provided to refresh your memory-“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”  As you can see, your vote to extend these extensions violate the Fourth Amendment and therefore you have violated your oath to the Constitution.  As for your comfort, I care not; it is my comfort in freedom that I am concerned with retaining.

NUGENT: Again, thank you for taking the time to contact me regarding your concerns about the PATRIOT Act.  As I said at the beginning, my colleagues and I are dedicated to returning the federal government to the proper size and role that the Founders intended.  That means maintaining and supporting a strong national defense.  As your representative in the federal government, I will continue to rely on your views as a guide to restoring our government to the people.  I appreciate hearing from you on this and I look forward to hearing from you again.

BAEZA: Your staff was contacted and even educated by Judge Andrew P. Napolitano’s video about the PATRIOT Act. My concern was your vote.  You voted unconstitutionally.  Period.

NUGENT: Again, thank you for taking the time to contact me regarding your concerns about the PATRIOT ACT.  In the future, I invite you to visit my website at http://www.nugent.house.gov.  There, you can track specific pieces legislation and sign up for my newsletter, the SITREP.  Modeled after the “situation reports” I used in the military and as Sheriff, the SITREP is a “just-the-facts” update I send you about everything that’s going on in Congress that week.

BAEZA: I do not appreciate the military/law enforcement term “SITREP.”  You are now a Congressman.  Please act like our representative and not a creature of the state.

We welcome the Congressmen to an actual debate on the Patriot act on the Liberty Underground show.  We will also post any response to this article.