This So-Called PATRIOT Act

Yesterday, as a conference committee was about to consider the PATRIOT Act reauthorization bill, Rep. Roscoe Bartlett (R-Md.), one of only 17 Republicans to vote against the House version, reiterated his objections:

Contrary to our history, our Constitution, and cherished legal principles, this bill gives the government vague sweeping powers, instead of specific limitations. It does not contain effective checks and balances on these powers. None of these extraordinary expansions of power for the government should be made permanent....

Under this so-called PATRIOT Act, each of us faces the prospect that the government could treat us as guilty with very little evidence. It could investigate us in secret based upon unproven complaints against us. That puts all of us as individuals at risk and at the mercy of any disgruntled neighbor or coworker who alleges we are involved in terrorist activity. It could be me today, or a neighbor or member of a labor union or church group tomorrow. No one can say where it would end....

Supporters argue Americans should have no "sanctuaries" of privacy. The government should be allowed to investigate us and search for evidence against us anywhere with as few limitations as possible. With this permanent expansion of government powers, we will no longer have areas, such as our homes, that deserve greater privacy protections. That is not the America that I know and love.

I first heard from Bartlett's office after I wrote a column criticizing the Bipartisan Campaign Reform Act, which he wants to amend so that interest groups organized as nonprofit corporations don't have to check the calendar before they can criticize politicians. Soon after I was added to his mailing list, the press releases assuring me that Bartlett is determined to protect me from the threat of gay marriage made me wonder if campaign finance was the only area where we agreed. I'm glad to see there are a few others (he's good on gun rights and eminent domain too).

Of course, I used to assume that Republicans who criticized the PATRIOT Act and other aspects of the war on terror as threats to our civil liberties must be acting on principle. But now that Dave Weigel has explained that such a stance may be politically savvy, I'm not sure what to think.

Comments

Cliff | November 10, 2005, 10:39am | #

Why do Republicans hate America?

joe | November 10, 2005, 10:44am | #

Most Republicans don't hate American, Cliff.

Most of them are real PATRIOTS.

riot act | November 10, 2005, 10:49am | #

cuz you can't spell PATRIOT w/o "riot"

Ruthless | November 10, 2005, 10:50am | #

Next there'll be the Sliced Bread Act, followed shortly after by the Greatest Show on Earth Act.

crimethink | November 10, 2005, 10:55am | #

And thus the "Why do[es] X hate America?"-post-meter passes the 10,000 mark. With all the parodiable lines this administration and their supporters offer, you'd think we could move on to a new one...

x | November 10, 2005, 10:59am | #

They hate us for our freedom fries.

Stan | November 10, 2005, 11:18am | #

They hate us coz all our men have huge penises. Oh wait that's the japs.

Brian | November 10, 2005, 11:21am | #

Why do you hate America's "Why do[es] X hate America?" cliche?

Lucky we can't post pictures in here. I still laugh when someone puts an irrelevant Mission Accomplished picture in a Fark thread.

joe | November 10, 2005, 11:23am | #

If we can't ask why people who dissent from the White House hate America, then the terrorists will have won.

Larry A | November 10, 2005, 11:24am | #

Bartlett is determined to protect me from the threat of gay marriage made me wonder if campaign finance was the only area where we agreed. I'm glad to see there are a few others (he's good on gun rights

The Pink Pistols have to be the loneliest people on Earth.

Attorney for Lou C. Fer | November 10, 2005, 12:07pm | #

Why exactly should Americans have sanctuaries of privacy? The abuse of power/mistake arugment offered a few days ago can easily be solved with more effective oversight of police agencies.
And yes, the innocent have nothing to fear.

Phil | November 10, 2005, 12:30pm | #

And yes, the innocent have nothing to fear.

**cough**

**cough, cough**

Phil | November 10, 2005, 12:32pm | #

And yes, the innocent have nothing to fear.

**cough**

**cough, cough**

I guess if one is operating from a position where 5, 10, 15, 20+ years in prison for something you didn't do isn't particularly scary, sure. Meanwhile, many of the rest of us figure that if this is how badly the police often fuck up with the restrictions they have on them now, loosening those restrictions is probably not a very good idea.

Attorney for Lou C. Fer | November 10, 2005, 12:35pm | #

Phil-Hence the statement that the watchers also must be watched. If that sort of thing can be prevented, the arguments against total surveilance are skimpy at best.

Phil | November 10, 2005, 12:46pm | #

You want to live in a police state, son, I can get you passage to Cuba. Me, I sorta like freedom.

Shannon Love | November 10, 2005, 12:46pm | #

"The presumption of our innocence until the government first proves we are guilty is a bedrock principle of our nation, said Congressman Bartlett"

I suppose it is far to much to ask that United States Congressman understands the difference between being a suspect and being convicted of crime? I was unaware that the Patriot act tossed out presumption of innocence at trial.

Bartlet seems to make the argument that it is immoral and politically dangerous to look for evidence that an individual is a terrorist unless we already have evidence that the individual is a terrorist. That line of reasoning seems to present certain practical problems with causality.

I would take such critics more seriously if they conveyed the impression that had given the least thought to the practical challenges presented by trying to prevent terrorism instead of regurgitating pious cliches.

Ken Shultz | November 10, 2005, 1:11pm | #

Shannon,

Would you object if Senator Bartlett had pointed out that probable cause is a bedrock principle of our nation?

I'd take your objection more seriously if you suggested something to prevent government abuse. ...rather than sacrifice our bedrock principles to fear.

joe | November 10, 2005, 1:22pm | #

"Bartlet seems to make the argument that it is immoral and politically dangerous to look for evidence that an individual is a terrorist unless we already have evidence that the individual is a terrorist."

It only seems that way to you, Shannon, because you are determined to blur the line between non-intrusive observation, and the sort of investigation that has traditionally been recognized as requiring a warrant.

Your entire phrasing seems constructed to nullify the concept of "probable cause."

quasibill | November 10, 2005, 1:25pm | #

"practical challenges presented by trying to prevent terrorism"

and the practical challenges posed by any crime, or poverty, or drug addiction, or auto accidents, or bee stings.

Risk management is not self-defense. Risk management is a function for the private market, not the government. And yet we always get people who claim to be libertarian foaming at the mouth about preventing terrorism, or having to eliminate terrorism before we can be free.

Sorry, that's not the country our founders envisioned. The Constitution is fairly clear that crime doesn't need to be eliminated before people have rights. But keep on going with your living constitution style analysis of a government granted broad powers to violate the rights of many people in order to manage individual risks...

zach | November 10, 2005, 1:30pm | #

More effective oversight of police agencies? As in, Court oversight? As in, what the PATRIOT Act is designed to restrict?

Hakluyt | November 10, 2005, 1:36pm | #

Much of what the Patriot Act allows can't be used in Court to begin with, so "probable cause" isn't an issue. I mean, I suppose you could bring some derivation of a Bivens action, but that even seems a stretch.

Hakluyt | November 10, 2005, 1:39pm | #

Ken Shultz,

If the cops aren't using it in a criminal investigation, you will likely never know and they don't need to worry about any repercussions. Further, if something from the investigation leads to an arrest (in that it leads to another source of information, etc.), well, the whole "fruit of the poisoned tree" concept is on life support anyway.

Hakluyt | November 10, 2005, 1:40pm | #

The beauty of PATRIOT is that much of what it allows is secret and thus not reviewable by an open court (here I am discounting the FISA courts as real checks on the powers of the FBI, etc.).

Hakluyt | November 10, 2005, 1:47pm | #

Oh, and the solution to PATRIOT is political. Don't expect much help from the judiciary.

zach | November 10, 2005, 1:50pm | #

Don't expect much help from the judiciary.

I didn't realize people did.

Hakluyt | November 10, 2005, 1:51pm | #

zach,

When folks start talking about "probable cause," they clearly are contemplating some role for the judiciary.

zach | November 10, 2005, 2:00pm | #

Mostly they're talking about why the PATRIOT Act is a bad thing, precisely because it eliminates the need for probable cause in some cases, by eliminating Court intervention in those cases. They're not saying the PATRIOT Act will be overturned by the courts.

Ken Shultz | November 10, 2005, 2:04pm | #

I'm concerned about more than just what can be used in court.

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:

SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.

(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities...

My understanding is that under Section 215, law enforcement doesn't need probable cause so long as the investigation is done to "protect against international terrorism or clandestine intelligence activities..." This seems to run contrary to 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."

----The Fourth Amendment

Shannon wasn't referring to probable cause, but it's a big concern to me. ...and I don't think whatever it is that proponents of the Patriot Act claim it will save us from is worth sacrificing this bedrock principle.

Meanwhile, I'm as concerned about administrative gag orders as anyone.

Stretch | November 10, 2005, 2:12pm | #

this bill gives the government vague sweeping powers, instead of specific limitations

Bingo! Honestly, isn't it possible that we could increase the government's effectiveness in preventing terrorism while still imposing limits? The Patriot Act basically says that the government can do whatever it wants, whenever it wants, to whoever it wants at any time for no real reason. Of course, I'm not a terrorist so I have nothing to fear...right?

If the terrorists hate us for our freedom, then they must be liking us more by the day.

Hakluyt | November 10, 2005, 2:12pm | #

zach,

Its not that it eliminates probable cause, its that probable cause would never apply in the first place.

Ken Shultz,

The question in that case comes down to whether you have a privacy right in the records kept on you by businesses. The Court is going to say an emphatic No!

Hakluyt | November 10, 2005, 2:14pm | #

Ken Shultz,

In other words, from the standpoint of the Court's current jurisprudence, PATRIOT isn't that big of a deal (at least on any sort of macro level).

Hakluyt | November 10, 2005, 2:21pm | #

Ken Shultz,

And of course the general problem with PATRIOT ACT complaints is that they generally are fairly ignorant ones (I'm not saying this about you).

Sec. 206, 213, 214, 215, 218, 505, and 802 seem to be the areas that most folks who understand the mechanics of the Act are willing to argue are in some way problematic. That's where we should focus. I'd like to help you along this path, but I have a meeting in about forty minutes.

Ken Shultz | November 10, 2005, 2:29pm | #

215's the one I cited.

Larry A | November 10, 2005, 2:52pm | #

If you pass enough laws, no one is innocent.

zach | November 10, 2005, 2:58pm | #

Its not that it eliminates probable cause, its that probable cause would never apply in the first place.

...hence the need for it is eliminated.

Shannon Love | November 10, 2005, 4:27pm | #

There are two problems with applying ordinary criminal probable cause to the PREVENTION of terrorist attacks.

First, the major component of probable cause in the vast majority of criminal investigations is the fact that the crime has already occurred. Investigating conspiracies to commit crimes is virtually impossible unless a private citizen with knowledge of the conspiracy contacts the authorities. (Something Bartlet seems to regard as a bad thing anyway.) In the vast majority of cases, the police powers activate only after people are dead, injured or property destroyed. This might be a tolerable tradeoff in ordinary crime but it is probably not when dealing with mass-casualty military attacks.

Second, it is quite possible for terrorist to function without committing any breach of the law (beyond conspiracy) until they actually strike, The 911 attacks did not require the perpetrators to break any laws in order to effect the attacks. The minor crimes they did commit were largely the result of laziness. In such cases, how do we generate any probable cause to begin an investigation?

The ugly, ugly truth is that if you want to intercept a terrorist attack BEFORE it occurs you cannot wait until a crime has occurred that would grant you probable cause in a traditional criminal case. You have to go trolling, looking for patterns in lives of huge numbers of people, the vast majority of whom will be completely innocent, looking for information that might indicate who of a tiny minority of individuals might be planning an attack.

This is obviously politically dangerous but not necessarily more dangerous than allowing the attacks to occur.

Liberal orders have never collapsed into authoritarian ones by becoming more effective in preserving law and order. It is the opposite pattern that has ruled the last 150 years. Liberal orders fail because they cannot maintain basic order and people turn to authoritarianism out of desperation. The knee-jerk rejection of increased powers is every bit as dangerous to freedom if it cripples the state from fulfilling its basic mission of violence prevention.

People overly concerned with the slippery slope find themselves in avalanche instead.

zach | November 10, 2005, 4:39pm | #

[quote]Liberal orders have never collapsed into authoritarian ones by becoming more effective in preserving law and order.[/quote]

You're assuming that the PATRIOT Act will make the preservation of law and order more effective. It still amazes me that the 9/11 commission found that problems with cooperation between agencies and executive decision making were the errors that allowed the attacks to happen, but limits on civil liberties are the proposed remedy.

zach | November 10, 2005, 4:42pm | #

Oops.. forgot that doesn't work on H&R.

darchiba | November 10, 2005, 5:29pm | #

The reason they go after individual freedom when it was their fault to begin with is because nothing is ever the governments fault don't you know that!!! They take and tout all claims of greatness (whether false or make believe) and refute all accusations of incompetence even with undeniable evidence to support the claims of their guilt.

This is why drug laws will likely not change until the old crusty fucks that have supported and backed more and more laws do us all a favor and stop breathing. Do you think they will admit to consistently failing over decades to do a damn thing while all the time imposing more and more laws on individuals and restricting their freedoms.

To me the whole Patriot Act is just another example of a government knee jerk reaction to a problem. Something is which to appease the sheeple and front as a governing body with their finger on the pulse of all thats wrong and swiftly acting to make it alllllllllll right. Which at the same time takes focus away from what they did alllllllllllll wrong all along that got us in the mess we are in now. Its a repeating cycle that in the end as things are now never accomplishes any of the original goals set. So what must we do when the jig is up and the proof has arrived that the last scheme failed. Well we must blame everyone but ourselves and then proceed to hastilly add 1000 more pages of law and regulations to the already non working laws and regulations. This is how you end up with 50,000 pages of incoherent jibberish on subjects that never should have even been addressed by these fools to begin with. When the law makers sign laws that affect themselves as politicians directly (ie campaign finanace reform) and then later are told they are breaking the very law they came up with and voted for. Then for some reason they are shocked that the 3,000 pages of law they signed says they can't do this and that and the other thing. So if they focused so little on something so obviously important to them as politicians that they passed law they end up breaking exactly how much thought and review are they exercising when it comes to laws for all us lil people that have no affect on the politicians or government?

Anyway as for Patriot Act we have been having that for years before 9/11 anyway. All the government really needed to do was start every terrorism investigation as if it was drug related. After all most all of these right like ohhhhhhhhhhh Presumed Innocence and Probably Cause have already been erased from the law books in the name of a safe drug free society. Now if they are willing to trample those rights to protect you from no one other than yourself just think what rights will be history as they attempt to protect you from an actual outside threat. This whole idea that we must give up freedom to have freedom is just plain stupid. Once we give or should I say have taken from us what was once ours by right it is never given back and more and more is sought for the taking.

Free or drug free take your pick because you can't have both. Same applies to all other freedoms as well and until the sheeple realize that you can not get what you want while giving that very same thing up at the same time we are all fubared.




___________________________
T E R M L I M I T S!!!!!!!!!!!!!

Shawn Smith | November 10, 2005, 6:48pm | #

Shannon Love,

In the vast majority of cases, the police powers activate only after people are dead, injured or property destroyed.

So most of the traffic stops and drug arrests involve death, injury, or property damage? That's news to me. Thanks for the info.

Shannon Love | November 10, 2005, 7:13pm | #

Shawn Smith,

Actually, so-called victimless or more accurately complaint-less crimes, present the same problems as finding terrorist. Nobody calls the cops complaining someone sold them some weed. In order for the police to find people dealing and using drugs they must go actively trolling for them even though there is often no immediate evidence of a crime. This is why vice laws are so corrosive to civil liberties. Even so, police must be able to show that they had some information making it likely that the target of their investigation was committing a crime before they have probable cause. As far as I am aware, nobody has yet been prosecuted for merely planning to use illegal drugs. (although I suppose we shouldn't give them any ideas.)

In short, even though there may not be a complaint or gross evidence of a crime in the case of drug investigations a physical act, creating the drugs, transporting the drugs, selling the drugs or using the drugs, usually did occur that creates some evidence that generates probable cause.

Hakluyt | November 10, 2005, 7:51pm | #

Shannon Love,

Nobody calls the cops complaining someone sold them some weed.

Heh. Actually there are incidences of something like that actually happening. And of course people call the cops on drug dealing all the time, though they themselves are neither the dealer or the seller.

Shawn Smith | November 10, 2005, 8:15pm | #

Shannon Love,

As far as I am aware, nobody has yet been prosecuted for merely planning to use illegal drugs.

I guess Raich v. Gonzales wasn't about people planning (hoping) to use illegal drugs (marijuana), but about the effect on interstate commerce. Again, thanks for the info.

And of course, one of the first uses of the the USA PATRIOT Act was to get information on political corruption here in Las Vegas with some members of the Clark County Commission. That wasn't even close to a terrorist plot. It was just some politicians getting caught asking for money for favorable zoning decisions for a titty bar operator.

I get the sense, and I could be completely wrong here, that you believe government has the ability to protect us from terrorist attacks. I believe it doesn't. I also would just prefer to not have government employees be given the information that, in criminal hands, would lead to identity theft, because the leadership in government changes so frequently. I don't want to trust my political opponents with the power the USA PATRIOT Act gives them.

There's a story over at Marshall Brain's blog (Manna) that has an interesting take on how to solve these problems. It was to make sure NO ONE, including government employees, had any expectation of anonymity. Anyone could know at any time what any particular person was doing or had done. Some of that story appealed to me, but I wouldn't expect that appeal to be shared with many (any?) people here.

Ken Shultz | November 10, 2005, 9:58pm | #

First, the major component of probable cause in the vast majority of criminal investigations is the fact that the crime has already occurred.

How is this different from unreasonable search and seizures under the Patriot Act?

Investigating conspiracies to commit crimes is virtually impossible unless a private citizen with knowledge of the conspiracy contacts the authorities.

Investigating Fourth Amendment violations is virtually impossible with gag orders and without judicial review of warrants.

This might be a tolerable tradeoff in ordinary crime but it is probably not when dealing with mass-casualty military attacks.

You're making a judgment about the value of the Constitution relative to the likelihood and severity of a potential attack. Well here's my value judgement--I'd rather take my chances with a terrorist attack than chuck my Constiutional rights.

...Out of curiosity, how many military attacks has the Patriot Act prevented?

You have to go trolling, looking for patterns in lives of huge numbers of people, the vast majority of whom will be completely innocent, looking for information that might indicate who of a tiny minority of individuals might be planning an attack.

With the government protecting us from terrorists so, I wonder who's going to protect me from the government in your safe society. ...and here I was depending on the government to protect me from cowardly Americans who would sacrifice their rights in the name of security.

This is obviously politically dangerous but not necessarily more dangerous than allowing the attacks to occur.

I'm not willing to put my rights on hold until we no longer need to fear terrorism.

...The day we no longer need to fear terrorism will never come.

Ken Shultz | November 10, 2005, 10:16pm | #

I think we've talked about this before Shannon, but I see this a being a lot like our Second Amendment rights. I'm not saying that our Second Amendment rights increase the likelihood of being shot in a robbery, but let's assume they do. I'd rather take my chances with a robbery than give up my Second Amendment rights. ...and so would most of the people I talk to who support the Second Amendment.

As a society, we've predicated our criminal legal system on the idea that we'd rather let criminals--even violent ones--go free than let prosecutors bring evidence against them in court that was collected in a way that's incompatible with the Constitution. For many, these kinds of values are, indeed, what it has meant to be an American.

This is not London during the Blitz. We were in greater danger during the Cold War. We must always remain vigilant against those who would save us from our Constitutional rights. Politically, there is nothing you can offer me that's more important to me than my freedom--including security. Try again if you please.