BOISE – In an unlikely partnership, U.S. Rep. Butch Otter, R-Idaho, and University of Idaho law professor Elizabeth Brandt have co-written an article critical of the Patriot Act that’s been accepted for publication in a prestigious law journal.
Brandt is a longtime American Civil Liberties Union activist who served on the ACLU’s national board for a decade.
“I don’t think there are a lot of other Republican politicians who would have been willing to write an article with somebody from the ACLU,” Brandt said. “I was honored to be asked to participate, as it was an opportunity to show that even in a highly charged political arena, ideas can transcend politics.”
Otter has been an outspoken critic of parts of the USA Patriot Act, which expanded law enforcement powers in the wake of the Sept. 11, 2001, terrorist attacks. When the Notre Dame Journal of Law, Ethics and Public Policy approached him about writing an article on his concerns for its upcoming February issue, he asked Brandt to co-author the article with him.
The two had met at a September 2003 panel discussion on the Patriot Act at the law school. Otter’s press secretary, Mark Warbis, said, “That’s what led to this invitation.”
Otter is a student of American political and constitutional history, Warbis said, but, “he’s not a lawyer. … He felt that he wanted someone who he trusted to work with him on the subtleties of the law involved … so he asked professor Brandt.”
“Although they may be politically from different ends of the spectrum, they agree on the need to protect our constitutional rights and civil liberties, and they were able to find common ground,” Warbis said.
Otter selected the topic: Delayed-notification searches, or “sneak and peek” searches, authorized under the Patriot Act. Both he and Brandt object to that clause of the Patriot Act on civil-liberties grounds.
In the article, the two compare them to a pre-revolutionary tactic used by British authorities in the American colonies called “writs of assistance.” Those writs created general, universal, perpetual and transferable search warrants allowing authorities to search American colonists’ homes and properties to enforce smuggling laws.
“The point that the congressman wanted to make is that it’s a dangerous abridgement of our freedoms,” Warbis said. “The writs of assistance in some ways were one of those aggravations that led to the revolution.”
In particular, civil liberties were infringed by the writs’ lack of specificity or requirements for notice, Warbis said. The article suggests that the Patriot Act’s sneak-and-peek searches have similar problems.
Brandt said, “As a matter of policy, these are the kinds of searches that we think the colonists and the founders would have found to be offensive – entering one’s home secretly without notice, not announcing, not leaving any evidence that you were there.”
The article the two wrote is titled “Preserving the Foundations of Liberty.”
The journal focuses on a particular topic for each of its quarterly issues, and includes a variety of articles related to the topic, mostly by academics or legal scholars. The February issue will focus on security and freedom.
Brandt said, “I was just so pleased and honored that … (Otter) thought to call me.”
Said Warbis, “It’s pretty prestigious, and the congressman is honored to have been a part of it … and equally honored to have professor Brandt join him as co-author.”