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Patriot Act:

In a gesture intended to be reminiscent of the Patent and Trademark Office's special rule about patent applications for perpetual motion machines — no patent granted without a working model — I propose a new rule about comments that reference the Patriot Act: If you allege that some government misconduct was done pursuant to the Patriot Act, you must cite and quote the relevant section (for instance, from this online version) to prove that the Patriot Act can indeed be involved.

Yes, I know that perpetual motion machines are impossible, and abuse of the Patriot Act is vastly overstated (see, e.g., this post, among many others, for examples) but in fact possible. Nonetheless, annoying times call for annoying measures. (For those curious about the straw that broke the camel's back, see some of the comments to this post.)

Remember, "Patriot Act," like "fascism" and "unconstitutional," is not Latin for "government action I don't like."

LArry (mail) (www):
Bravo! In some families, referring to the Patriot Act (or Roe or Casey) without providing specifics will get you written out of the will and disowned.

I hope that in the future you do the same regarding civil rights legislation and anything that the Supreme Court did.
8.22.2005 1:07pm
Flatlander100 (mail):
You wrote: Remember, "Patriot Act," like "fascism" and "unconstitutional," is not Latin for "government action I don't like."
Shouldn't "and 'judicial activism'" be part of that list?
8.22.2005 1:14pm
Larry (mail):
Flatlander, It sure would be nice if people were required to cite to not only the case but the specific text that they are referring to. The problem is that when you start blogging for a non-lawyer audience or people that put politics first and law second (or that take their talking points from one political party or another), it gets very difficult to do this, because they prefer to chant slogans about "activism" or "the patriot act" or something.
8.22.2005 1:19pm
Jeffersonian (mail):
The irony of the situation is that critics of the Patriot Act undermine their own case by blaming it for every cat stuck up in a tree.
8.22.2005 1:31pm
Rob Lyman:
Prof. Volokh, I have often invoked this rule in both online and face-to-face discussions. I do not think I have ever gotten a compliant response. But with your greater eminence, you may do better than I have.
8.22.2005 1:42pm
Lou Wainwright (mail):
Eugene, while I appricate your effort you might want to aim a little higher than emulating the Patent Office. After all, they fail at meeting even the impossible standard.

As for the Patriot Act, what I would find useful is the answer to this question: has it helped? What has it empowered the government to do, that was before illegal, that can be shown to have produced a good outcome? I've seen enough protestations over what the Patriot Act isn't to convince me that it really doesn't trample over my Civil Rights, but I've never seen a clear justification for it that shows that it was worth the trouble it has caused.
8.22.2005 1:46pm
just me (mail):
Mr. Wainwright -

I can't speak for national security, but I can point to this salutary effect of the Patriot Act: it helps me to quickly sort out commentators that I respect from those that I don't. As soon as I see the breathless freak-out post on the Patriot Act, I can stop reading the other posts by that author. Judicial nominations are good for that, too. :-)

Just Me
8.22.2005 1:55pm
Larry (mail):
To me, there is nothing worse than the kind of people that scream "judicial activism" or "Patriot Act" without providing specifics. Hopefully, members of the VC will remember this and, in the future provide specific legal cites when posting political talking points.
8.22.2005 2:07pm
Tom Perkins (mail):
As for a citation of the Patriot Act being misused:
from

" David Keene, chairman of the American Conservative Union in Washington, D.C., said federal agents are not doing anything illegal, but he was not sure if their actions were proper.

"Most of the prosecutions (under the act) have not involved terrorism," Keene said. "In fact, within the last month, the Justice Department has urged U.S. attorneys to look creatively at the act and pointed out that these powers are not limited to terrorist investigations."

and

"Brian Michaels, an attorney in Eugene, Ore. who has written articles critical of the Patriot Act, said he was surprised the use of the act in the Galardi case came to light so quickly.

"It's a felony for anyone receiving a subpoena under this act to tell anybody," Michaels said. "This has added a layer of secrecy." "

Myself, I am skeptical of the portions of the act which make mentioning that one is the subject of a subpoena authorized by the act a felony being portions which cover this case, but who am I to argue with an attorney?

Unlike perpetual motion machines, which I am dead certain cannot exist, or the coherence of the vectors of the Brownian motion of the molecules of water in a cup randomly being aligned in such a way that the water launches itself out of the solar system, which by comparison is merely unlikely--the PATRIOT ACT is the sort of law which is unwise because it is open to abuse, has been abused already, and will continue to be abused in the future--in fact, it is only the imagination of such folk as Larry which can limit the ways and magnitude of the abuse of laws like the PATRIOT ACT.

And Larry, if we're going to talk about what's nice.

It would be nice if every law passed at every level of government had to cite the portions of the applicable organic law which the legislature purported to make that law legitimate, and if jurors were invited by the judiciary to judge the legitimacy and application of the law in that light, as well as only the evidence at hand.

That would make, I think, for many fewer such august families as those you mention; I think that would be very nice, and that we would be better off as a society and nation for it.

Yours, TDP, ml, msl, &pfpp
8.22.2005 2:09pm
roaming gnome:
I had a guy seriously tell me at social function that he thought america was getting scary because of the Patriot Act. I asked him, exactly which part of the Patriot Act you object to. nevermind a citation, he couldn't even say anything like "sneak-and-peek" or "library records," either of which I was prepared to and would have been happy to explain to him. he just changed the subject. it was sort of pathetic and goes to show how even a person I would have expected to have some kind of rational answer has been overwhelmed by the propaganda.

along the same lines, in a recent episode of "Law and Order," which is usually pretty accurate about legal issues, one of the cops was frustrated by the inability to get an arrest of a suspect. He said, "Can't we just use the Patriot Act"? There was an immediate cut to a scene of a Swat team busting down a door and taking the suspect in, implying of course that the cops could use the PAtriot ACt to arres someone w/o normal probable cause or warrant requirements. More liberal propaganda, and this time from a show that is generally, IMHO, quite pro-prosecution.

I should add that I thought the tinfoil hat guy comment that set this off this policy was being humorously ironic, until I read his later comments.
8.22.2005 2:12pm
Tom Perkins (mail):
Er... Here's the link. Which I swear I used the link button for. I don't know what happened to it above.

Patriot act bites brothel owner.

Yours, TDP, ml, msl, &pfpp
8.22.2005 2:21pm
Sir Mix-A-Lot:
I once had a fairly interesting conversation with someone about the justice of "sneak-and-peek" search warrants. This person did know generally what she was talking about and put together a basically coherent argument as to why they were unjust. We had agreed to disagree when she added that she was particularly concerned about such warrants because she was convinced that the FBI had actually executed one on her apartment in response to her having written a scathing letter to her Congressman about the Patriot Act. She said that no one else would have been able to tell that the place had been searched, but she knew that some of her things had been moved. I tried to reassure her that the FBI probably had better things to do than search her house--and that under "sneak-and-peek" the target of the search does get notification anyway, just a few days after the search (hence the appropriate name, "delayed notification warrants.") She didn't seem molified however.
8.22.2005 2:25pm
Larry (mail):
I forgot. Why do I rarely talk to non-lawyers.


It would be nice if every law passed at every level of government had to cite the portions of the applicable organic law which the legislature purported to make that law legitimate, and if jurors were invited by the judiciary to judge the legitimacy and application of the law in that light, as well as only the evidence at hand.


Now I remember.
8.22.2005 2:43pm
Paul Gowder (mail):
Eugene, are you making reference to a specific claim made by someone that a specific government abuse was permitted by the Patriot Act?
8.22.2005 2:47pm
Tom Perkins (mail):
Sir Mix-A-Lot, with the Secret Service doing things like this, her 'paranoia' seems fairly reasonable. Sec.213.b.3 of the PATRIOT ACT makes the period of delay indefinite.

`the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.'

Yours, TDP, ml, msl, &pfpp
8.22.2005 2:48pm
Tom Perkins (mail):
Well Larry, I have to ask you.

Do you disagree with the sentiment? If so, for what reasons?

Or do you not understand the sentiment?

Yours, TDP, ml, msl, &pfpp
8.22.2005 2:52pm
Larry (mail):
You are using tin-hat language, so, no, I don't understand it. But it is cute and I urge you to send everone you can letters with those terms in it.
8.22.2005 2:59pm
cfw (mail):
It looks like a reasonable test, but is the bar a bit too high? After all, one could not convincingly tell the pernicious effects of the laws enacted in Germany in and around 1933 until well after the government had become too well-established to easily dislodge. One should not need to show a train wreck or a ship of state run aground before challenging changes to criminal procedure that look unconstitutional. If EV had a seat on the USSCT, he would not have leave to apply such a "show me the blood" test, would he? One must have at least some leave to argue "unconstitutional on its face" it seems to me.
8.22.2005 3:07pm
JohnAnnArbor:
Mr. Perkins, your link led to an article where the person clearly lied. No agent shows up at your door and says "We hear you have anti-American material." Get real. Even if you think that they would bother over such things, think of the resources it would take up and the backlash as people complained in increasing numbers.
8.22.2005 3:16pm
Kris:
"It would be nice if every law passed at every level of government had to cite the portions of the applicable organic law which the legislature purported to make that law legitimate, and if jurors were invited by the judiciary to judge the legitimacy and application of the law in that light, as well as only the evidence at hand."

Not to get between you and Larry, Tom, but I don't understand this "sentiment" either. By "organic law," do you mean some form of the natural law of which Rousseau was such a fan? Or do you mean perhaps an "organic" document of law, like the Constitution or, for the Charleton Heston fans out there, the Ten Commandments?

As for jurors judging the legitimacy of the law, I can only revert to the old story of the stolen cow. A man was on trial for stealing a cow. The cow's owner took the stand and testified to seeing the defendant steal the cow. The defendant took the stand and admitted that he had stolen the cow. The jury came back: "Not guilty." The judge said, "I don't think you applied the law in the case very well. Go back there, review the jury instructions, and deliberate some more." When the jury returned, the foreman stood up and said, "Not guilty, and he has to give the cow back."

Jurors are invited to review the legitimacy of laws passed by legislators in the voting booth. Apparently, Tom, you believe that keeping up with the passing of said laws and following the careers of legislatures in order to cast an informed vote that affects the legislative process is too great a burden on American citizens. This is both disheartening and delightfully ironic when considered in light of your "helpful" suggestion.
8.22.2005 3:27pm
Tom Perkins (mail):
Well Larry let's see if your legal education permits you to parse this. I'll keep it at the national level to avoid nonspecific terms like "organic law", which might throw you.

Can you understand this?

--It would be a good thing if an amendment were passed which required the national legislature to cite in a the portion of the Constitution which authorized the law which they passed.--

Have I lost you yet?

--It would also be a good thing if a defendant's attorneys could, on the basis of a Constitutional Amendment, raise before a jury the issue of whether the jury agreed with the justification the national legislature gave for the law which the defendant was accused of violating.--

You still with me?

What is you learned opnion?

Yours, TDP, ml, msl, &pfpp
8.22.2005 3:34pm
jallgor (mail):
Ok,
Now I feel compelled to "get in between Larry and Tom." Or maybe I am just bored at work.
--It would be a good thing if an amendment were passed which required the national legislature to cite in a the portion of the Constitution which authorized the law which they passed.--
Why? What's wrong with our current system where federal prosecutors or lawyers argue in court about which portion of the Constitution authorized a law (or, as is more likely, that no portion of the Constitution forbids it). Also, your post seems to assume that it would be difficult for the legislature to cite to such Consitutional authority for many laws. There are, however, relatively few laws that are found to be Unconstitional and that's despite the best efforts of some very fine legal minds. So what exactly does your Consitutional amendment add to the process other than having the unnecessary step of having the legislature explicitly state which clause they are relying on (you' probably see alot of "Commerce clause" and "necessary &proper clause" references.
--It would also be a good thing if a defendant's attorneys could, on the basis of a Constitutional Amendment, raise before a jury the issue of whether the jury agreed with the justification the national legislature gave for the law which the defendant was accused of violating.--
That's called arguing that a law is unconstitutional except we ask judges to make that decision not juries. Why would it be a good thing to let juries decide what laws are unconstituional? Do you really feel that most juries are competent to do so? Would people still get to appeal such issues of law if they feel the jury was wrong? Does the appeal go to an appelate judge or to an "appellate jury" and then finally to the "Supreme Jury" ?
I am glad you put your suggestion in plain English. I couldn't figure out what you were saying in your first post. Now that I understand what you are saying, I realize how much I disagree with it.
8.22.2005 4:15pm
Tom Perkins (mail):
John, if you can cite anything showing it to be a lie, I'd appreciate it. Letyour fingers do the walking.

Kris, by orgainc law I generally meant the constitution of a state or the national governemnt, but I did not want to exclude the charter of a territory, or a home rule city (where of course a state constitution and the federal one could also be applicable).

What is more sad, that jurors are not aware of every jot and tiddle of the law, or that Congress--to mention the PATRIOT ACT--didn't itself read the whole thing first. If they didn't, how could it be innapropriate to ensure jurors are given every opportunity to refresh and expand their knowledge of the law as they are asked to make life-altering decisions on some narrow slice of it?

"Not guilty, and he has to give the cow back." That may very well be a jural decision more in keeping with community mores than anything the legislature would prescribe, and if such decisions are to be made, they should be made by juries, not by prosecutors, defense lawyers, and judges in chambers agreeing on deferred prosecution, or some permutation of the like.

"Jurors are invited to review the legitimacy of laws passed by legislators in the voting booth. Apparently, Tom, you believe that keeping up with the passing of said laws and following the careers of legislatures in order to cast an informed vote that affects the legislative process is too great a burden on American citizens. This is both disheartening and delightfully ironic when considered in light of your "helpful" suggestion."

Voters are asked to review the general performance of the legislature and usually the specific performance of an incumbent legislator against the prospective performance of a challenger. I don't think they do too badly, all things considered. To reiterate, voting is a judgement of overall, generic merit.

Jurors have a different task. In keeping with the common law (and still, reluctantly, according to the Supreme Court, the law of the land), they are to judge the specific law, the application of the law as it is specific to the case at hand, and the specific facts of the case. It has been a tragic judicial fad of the last century that jurors are not to be informed of their first two jobs, and that officers of the court who do so can be censured if they do, or even if they acknowledge those tasks exist.

You are being disheartened by, and find delightfully ironic, the difference between apples and oranges. With respect to judging the merit of the acts of the legislature, voting and being a juror are two different things.

Yours, TDP, ml, msl, &pfpp
8.22.2005 4:27pm
Sir Mix A Lot:
Tom, you posted a link to an article that had a) nothing to do with the Patriot Act; b) described activities that, fairly or not, the Secret Service has engaged in many times prior to enactment of the Patriot Act, and c) was on a far-left website and was based almost entirely on the self-serving report of the person involved, including quotes like ""Ma'am, we've gotten a report that you have anti-American material, or something like that, in your apartment," he said, according to Brown..."They just said they had gotten information from some place," she says. She speculates that it was from the police officer who visited for the second noise complaint.

Your citation to this article only goes to prove Eugene's and my point.
8.22.2005 4:30pm
Larry (mail):
For the reasons given by jallgor I disagree with you, too.

Also, because you are not a lawyer I have to say that I don't respect you, either. Indeed, in my culture is is downright odd not to be a lawyer, and now I see why. However, I urge you to send letters to whoever you lay people send letters to telling them these things. This should keep you out of trouble and provide entertainment for many.
8.22.2005 4:37pm
jallgor (mail):
Tom,
Jurors in this country are NOT asked to "judge the specific law." It ocassionally happens that a jury refuses to follow a law because they disagree with it but if they do this, they are going beyond what they have been empaneled to do. Jurors are finders of fact and they are supposed to apply the facts to law based on the instructions given to them by the court.
8.22.2005 4:50pm
Tom Perkins (mail):
Sir Mix A Lot, a) I didn't claim it had anything to do with the PATRIOT ACT, I gave it as an example of how your acquaintance's paranoia was depressingly reasonable, then I cited a portion of the PATRIOT ACT which makes the delay of a "sneak and peak" indefinite, showing that your belief she'd have heard something was just your assumption, b) in light of that, why should the fact the the Secret Service was acting this way before the PATRIOT ACT make us comfortable with the PATRIOT ACT--if they were taking an inch, we should give them a mile?, c) on the Google search link you'll find many other references than the first ones which come up, one of which I posted. Please look through them and tell and if you still think it didn't happen...

If that still doesn't turn your crank, I presume you are fine with the first example of the Patriot Act being--I think---misused, where a garden variety bribery case was being used as an excuse to "look creatively at the act and pointed out that these powers are not limited to terrorist investigations." You are fine with the PATRIOT ACT being used to combat garden variety crimes as opposed to terrorism?

Yours, TDP, ml, msl, &pfpp
8.22.2005 5:19pm
john (mail):
When my leftists friends complain about the Patriot Act I typically respond with: "Patriot Act? That's nothing. I hear that congress is considering passing a law that would require each local and federal law enforcement officer to carry a handgun. What's worse, each officer would be allowed to decide on his own, without our prior review or approval by a court, when he or she needed to use deadly force. Of course they say that the officers will be trained and each case reviewed carefully, but you know it will all be a whitewash. I predict thousands dead each year; mostly political enemies of bushhitler."
8.22.2005 5:45pm
Tom Perkins (mail):
Larry and Jailgor,

1) Jury duty and voting are self-evidently two different things, civic acts of fundamentaly differing scope and character. If you disagree, please explain.

2) Jailgor writes: "Jurors in this country are NOT asked to "judge the specific law." sadly, that is true today. In fact, defense attorneys aren't allowed to bring it up.

Which of these facts do you dispute:

a) The US Supreme Court did nothing to substantially impair jury nullification until 1895, in United States v Sparf. Even since then, the Supreme Court has refused to condemn the practice outright, and the citations of the USSC justices praising the practice far outnumber their disparagements of it.

and

b) As evidenced by John Jay's statement, "The jury has the right to judge both the law as well as the fact in controversy." and John Adams' statement, "It is not only [the juror's] right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court." the founding fathers felt that jury nullification was a right of juries and a part of due process.

Psst. Hey Larry, do you think the Framers had tinfoil on under their wigs?

Yours, TDP, ml, msl, &pfpp
8.22.2005 5:47pm
jallgor (mail):
Tom,
I would dispute the fact that the current state of affairs is sad but it's something reasonable minds can disagree on. I can envision many hypotheticals where jury nullification would seem to be a good thing but, in general, I am against it so I humbly tend to disagree with Mssrs. Jay and Adams. I applaud your use of precedent (or attempt to distinguish it) and original intent in your argument. You even started to sound like a lawyer there. You might earn Larry's respect yet :)
8.22.2005 6:14pm
CharleyCarp (mail):
Giving jurors enough of a background to understand all the give and take that leads to the instructions would be a good way to completely destroy our legal system. What is now a 3 day trial would take a month. You think jurors would want that? Who can serve? I guess we'd have full employment for law professors, who could come in and give seminars on the Constitution, common law, conflicts, personal jurisdiction, and all the rest. It would certainly give guilty defendants plenty of case to put on.

Does each juror get to re-decide M'Cullough v. Maryland each time? Wickard v. Filburn?

There may be plenty of nullification going on now.* I don't see why anyone but a criminal defendant thinks it's a good idea. We have legislatures to decide whether ex-felons should be allowed to own guns, or whether a person may drive 100 mph past an elementary school.


* There was an op-ed piece a few years back in which it was suggested that a number of acquittals in drug related trials in the District of Columbia were race-related nullifications. ('No matter what the evidence, I'm not going to vote to send another young black man to jail'). You want this?
8.22.2005 7:11pm
CharleyCarp (mail):
I certainly would like a chance to re-decide United States v. Curtis Wright. And I guess individual jurors would be free to re-impose Roe should it be overruled.
8.22.2005 7:20pm
von (mail) (www):
Sorry if someone already mentioned it, but:

It's somewhat inaccurate to talk about the Patent Office's "special rule" against the patenting of perpetual motion machines. In fact, it's the application of a very general rule -- the rule that patents must be "useful" (codified at 35 USC 101) -- to a specific circumstance.

Also, though the MPEP (Manual of Patent Examining Procedure) provides very specific guidelines for when patent examiners should issue a Section 101 rejection (see, e.g., 706.03) -- and notes that "perpetual motion machines" are among those that should ordinarily get such a rejection -- it's tough on my ears to call the MPEP a "rule." The MPEP provides guidelines for patent practice and is, in general, binding on patent examiners (except for the section on interferences, which the Board of Patent Appeals and Interferences has specifically stated should not be followed). However, the examiner is not the final authority on patentability -- ultimately, the Courts are -- and the MPEP is not binding on the Courts.

My two, very persnickety, cents. (Good post.)
8.22.2005 7:59pm
sir mix a lot:
Tom, I never doubted that the Secret Service visited this women. I doubted, and continue to doubt, her account of that visit. in response, you cited a google search that turns up reports of her account at "refuseandresist.org," "cannabis news," and "thirdworldtraveler." those dont' add much to her story's credibility.

so, you cited a dubious source in order to back up a paranoid claim. again, that's exactly what Euguene is concerned about and only goes to prove his point.
8.23.2005 10:57am
Tom Perkins (mail):
sir mix a lot, you are skeptical of her account. Ok. I'm sure you have a basis other than bias for your skepticism.

I am sure you will find no countervailing account anywhere, including with the Secret Service.

It is then, I think, not a dubious source.

As I said before, if they are taking an inch--performing an investigation and taking names, notes, etc.*--in this case, why should they be given a mile--the USA PATRIOT ACT. I also note you have nothing to say about whatever provisions of the patriot act law enforcement can imaginetively stretch to other sorts of investigations than terrorism being so stretched. Should I presume you approve and are comfortable with whatever evolution in the use of the patriot act which you think is likely to occur?

The argument against the patriot act which should suffice is that it is an emotional band-aid for the security service bureaucrats and political officers of this nation, giving them a fig leaf of insufficient powers to hide behind, and paper over their failings with--when they could have prevented 9/11 with the authority they already had if they hadn't had their heads up their alimentary tract.

What powers they don't need they shouldn't have.

That is a full and sufficient reason for the patriot act to be voided.

*On looking at the poster for one second, they should have apologized and left. Period.

Yours, TDP, ml, msl, &pfpp
8.24.2005 11:06am
A. Nonymous (mail):
The AP has its own troubles, making reference to a "library clause" in the Patriot act today.

news.yahoo.com/s/nm/20050826/pl_nm/security_libraries_dc

"The U.S. House of Representatives, ignoring protests from civil liberties groups, voted this summer to reauthorize 16 provisions of the act that expire at the end of the year, including the library clause. "
8.26.2005 11:18am
Kris:
Sorry, Tom. Away on business, so I don't know if anyone is even reading these comments anymore, but let me respond to: "Jury duty and voting are self-evidently two different things, civic acts of fundamentaly differing scope and character. If you disagree, please explain."

I don't disagree with your statement here. I was merely pointing out that jurors are THE SAME people as voters (at least, if they so choose to fulfill both civic duties). And those people already have a voice regarding their views on the legitimacy of laws that are passed -- their vote. That's the place where a view on the legitimacy of a law is properly expressed. If you think a law is bad, vote out the guy who wrote it, and push the new guy to get rid of it! Yeah, it takes more time and effort, and more focus and more information, and more education, and more concern and...wait, I can see why you don't think American citizens today should be held to this...

But as for worshipping at the altar of the almighty juror, since I'm a former prosecutor, let me explain to you what my job was in the courtroom. If I asked you, and God bless your idealistic little heart, you'd say it was to prosecute criminals by proving a case beyond a reasonable doubt. Not to be cynical, but that's a nice try. My job was to make the jurors LIKE ME. If they liked me more than defense counsel and his client, they convicted. PERIOD. It's not a matter of presenting the right evidence. It's a matter of how you present it. Given the opportunity (and believe me, I always gave it to them) jurors will be MORE THAN HAPPY to replace the intelligent thought process necessary to properly deliberate with their kneejerk emotional reaction about which side seems more honest and friendly.

Given this (it seems anecdotal, but juror studies and the existence of the jury consultant industry bear it out), I think you'd be as unhappy with the unjust results of jurors' legal interpretations as folks are now with unjust verdicts that result from this same phenomenon. I'd invite you to trial watch a bit if you don't believe me and play the game yourself: watch the trial and ask yourself which attorney you like more. Then wait for the verdict. Try this at home. Works in civil cases, too.

By the way, I had very few acquitals. I'm very likeable.
8.26.2005 3:46pm