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NYT on "Competing View" of Patriot Act:
From the New York Times:
  Publicly, the debate over the law known as the USA Patriot Act has focused on concerns from civil rights advocates that the F.B.I. has gained too much power to use expanded investigative tools to go on what could amount to fishing expeditions.
  But [newly obtained internal FBI documents] . . . offer a competing view, showing that, privately, some F.B.I. agents have felt hamstrung by their inability to get approval for using new powers under the Patriot Act, which was passed weeks after the terrorist attacks of Sept. 11, 2001.
  One internal F.B.I. message, sent in October 2003, criticized the Office of Intelligence Policy and Review at the Justice Department, which reviews and approves terrorist warrants, as regularly blocking requests from the F.B.I. to use a section of the antiterrorism law that gave the bureau broader authority to demand records from institutions like banks, Internet providers and libraries.
  "While radical militant librarians kick us around, true terrorists benefit from OIPR's failure to let us use the tools given to us," read the e-mail message, which was sent by an unidentified F.B.I. official. "This should be an OIPR priority!!!"
PersonFromPorlock:
The problem is, the New York Times believes a 'fact' is any assertion that supports a Higher Truth. I say wait for Debka to confirm.
12.11.2005 12:31pm
Justin (mail):
Those radical militant librarians ::tsk tsk::
12.11.2005 12:44pm
TJ (mail):
Those radical militant librarians ::tsk tsk::

Indeed... no master by Dewey!
12.11.2005 1:05pm
gbrown (mail):
I am very very interested in what investigative efforts are being blocked by OIPR. The complaining party's reference to "radical militant librarians" suggests that the hindered investigations may be truly bizarre.
12.11.2005 1:25pm
Mary Katherine Day-Petrano (mail):
See comments, earliest Al-Arian thread re: reasonable ground to believe Patriot Act was abused against two American citizens, a bar applicant and her husband, an attorney, just for having raised an Americans With Disabilities Act lawsuit that is very unpopular with the Bush administration and Governor Bush of Florida, and then arresting in admiralty a Vessel believed to be utilized in their surveillance activities.

The most interesting issue is what happens when First Amendment activities are raised under an ADA retaliation, the ADA's express conflict preemption statute that "preempts" (repeals) "other federal laws" is asserted against the Patriot Act, and the related cases are pending in the Eleventh Circuit and United States Supreme Court? E.g., Docket No. 05-7771. It would appear there is no legitimate law enforcement reason to retaliate sufficient to prevent the ADA from repealing in part the immunity provision of the Patriot Act for knowingly and wrongfully using the Patriot Act to retaliate against two disabled American citizens for no other reason than abuse and supression of their unpopular ideas that disability rights should be enforced — even if that affects Bush administration budget concerns.

I wonder if the FBI/US Attorney-DOJ/US Marshal/US Coast Guard/Secret Service/other federal investigative unit would find more instances in which they used the Patriot Act's powers under a formal discovery process in a retaliation/First Amendment suit. Maybe it is humorous to joke about 'militant librarians,' but anyone who has been subject to what appears to be Patriot Act abuse for simply asserting civil rights they are entitled to enforce as American citizens would find no humor there. Especially where a Vessel believed to have been conducting surveillance activities on the civil rights American citizens was recklessly tied to ensure she would break loose in a Hurricane with a high likelihood of killing them, and the only witness brought forth by the other side to controvert those facts was recognized by the District Court Judge to have committed perjury.

Why isn't anyone in the legal profession concerned about the dangerous erosion of Constitutional rights posed by the civil rights abuse under the Patriot Act? Especially to supress and control unpopular viewpoints and ideas.
12.11.2005 1:45pm
Fishbane (mail):
Why isn't anyone in the legal profession concerned about the dangerous erosion of Constitutional rights posed by the civil rights abuse under the Patriot Act?

Because "terrorism" is the new root password to the constitution. It used to be "kiddie porn" and before that "cocaine cartel", but they have good password policies, and change it periodically.
12.11.2005 2:13pm
Ian (www):
Radical militant librarians have always been the shadow leadership of a vast left-wing conspiracy. Back in the late sixties, the Weathermen acted largely under orders from Big Library. Eugene Dennis was a librarian. So was Leon Trotsky.

I've even heard from a reliable source that the radical militant librarians have started to infiltrate the Bilderberger Banking Collective, and that the Illuminanti is powerless to stop them.
12.11.2005 2:40pm
Wintermute (www):
LOL @ fishbane's wit!
12.11.2005 2:45pm
BruceM (mail) (www):
Of COURSE they're going to say this. What, you expect the FBI to admit that it's abusing the powers given by the Patriot Act? When someone accuses you of having too much power, you don't just retort by saying "no I don't" you retort by saying you don't have enough power. If anything, the "compromise" will be to retain the status quo. If you do a good job of saying you don't have enough power you might even get more.

An analogous situation is with the abortion debate. Pro-lifers are doing everything they can to completely ban abortion. Pro-choicers are complacent and are just arguing that Roe v. Wade should not be overturned. Someone arguing to preserve the status quo against someone arguing the status quo should be changed is bound to lose. To preserve the status quo against someone who wants to change it, you need to argue for equal change in the opposite direction. Pro-choice people should be arguing to get rid of the third-trimester rule, they should be arguing that a pregnant woman should be allowed to abort her fetus ANY TIME prior to birth, and they should be arguing for government-subsidized abortion clinics on every street corner, which will perform abortions on demand, without question, and anonymously. They should be arguing for these things just as vigorously as the pro-lifers are arguing for their position. Then there's a chance Roe will survive and the status quo of legal, albeit restricted, abortions will remain inviolate.
12.11.2005 3:58pm
Daniel Chapman (mail):
"Should be"?
12.11.2005 4:12pm
Lawbot2000:
Why stop there? Why not argue for the legalization of infanticide.
Want the death penalty abolished? Argue for the penalty for triple homicide to be 5 years parole. The compromise will surely be no more death penalty.
12.11.2005 6:01pm
Hattio (mail):
I'm not going to endorse everything Bruce M said, but his basic point is; that this is a case of the FBI saying exactly what you'd expect, is pretty sound. Basically, the accusation is that the executive branch, and particularly law enforcement types, can't be trusted to judiciously use the expanded powers you give them. Or, IOW, that they will claim there to be terrorists anytime they have a hankering to look at something. So, as proof this is wrong, Orrin trots out a law enforcement type who says "Trust me, these people ARE really terrorists and we're not getting surveillance powers." Then you add in the bit about militant librarians, and you expect to change our minds. Come on Orrin, have more respect for your reader's intelligence.
12.11.2005 10:25pm
ichabod_65 (mail):
Why don't you have a link to said e-mail? It is proper to provide proof when one makes a claim. :-)
12.11.2005 11:08pm
Harry:
You folks are unfairly tarnishing Orin. He is simply linking to a NYT article. He gave no comment on the article. From his past posts, he trys to clearly articulate what is Patriot Act and what is not, but rarely does he offer his opinion on the Act itself. From Orin, more than anyone, I've learned to read through the spin on the Patriot Act. You can't debate the issues if they are constantly clouded with false statements. I don't know, but I suspect from past comments he's made, that he would be closer to reducing it's reach than people might suspect.
12.11.2005 11:16pm
OrinKerr:
Hattio,

You seem to be imagining a quite different post than I actually wrote. FWIW, I didn't intend to send any of the messages that you seem to be reading into my choice of excerpt.
12.11.2005 11:28pm
OrinKerr:
Oh, and in response to Harry, I am indeed in favor of a number of restrictions on the Patriot Act, ranging from tighter restrictions on "sneak and peek" warrants to a higher threshold on pen register orders to the introduction of a suppression remedy for violations of the electronic surveillance statutes. I have written at length about these issues in my scholarly articles, which can be accessed here. In terms of where I fall on the broader debate of Patriot Act-related issues, though, it depends on the issue; sometimes I agree with the DOJ, and sometimes I agree with the Patriot Act critics. As I see it, it depends entirely on the specific issue; it's really hard to generalize these questions, as the devil often is in the details.
12.11.2005 11:42pm
carpundit (www):
Orin,

A higher threshold on pen registers? At a time when it's getting harder and harder to see through the electronic evasions of the criminals (disposable cash-paid cell phones, internet telephony, instant messaging) you want to raise the bar on the government's use of pens, an unintrusive collection technique that only provides information already being revealed to others (the phone company)? I don't get it. In any event, thank you for continuing to explicate the USAPA.

All,

My interpretation of "radical militant librarians" is that the writer was disparaging the librarians but not actually worrying about them, because -as we've now seen- the government doesn't seem much to give a damn what people are reading.

Fishbane,

Very funny. But I don't actually see the erosion of civil liberties that some people decry.

CP
12.12.2005 8:56am
Houston Lawyer:
For anyone who's been following the news, the organized librarians seem to have taken an absolutist view of the first amendment (objecting to porn filters on computers available to children) and to the privacy of library users. I find the reference amusing. It's certainly possible that abuses of the Patriot Act have taken place. Given the past performance of our various law enforcement agencies, a few abuses are almost guaranteed. The question is whether the Patriot Act results in any measurable reduction in our liberty and, if so, whether that reduction in liberty is reasonable in exchange for the supposed security enhancements achieved as a result thereof.
12.12.2005 9:46am
Justin (mail):
Hm. I thought Orin chose that excerpt because it was funny. I'm now curious what Professor Kerr does think of the excerpt and the article.

I usually don't respond to Houston lawyer, except to say that even if I grant everything he states as true, that does not justify a reference to librarians as "radical milintant[s]". Radical militants do things like blow up FBI headquarters. Environment Liberalization Organization = radical militants. GreenPeace = not radical militants. See?
12.12.2005 10:09am
Justin (mail):
Errr, that should be "liberation"
12.12.2005 10:10am
Ofc. Krupke (mail) (www):
Justin, I think the reference to "radical militant librarians" in the email is a joke. Are you saying it's not a funny image?

Just because someone is in law enforcement doesn't mean they don't have a sense of humor. And yes, I would even go so far as to include the FBI in that.
12.12.2005 10:59am
Aaron:
MY best friend is a FBI, and he told me that before he entered the Academy, he had to have his sense of humor sugically removed... sans anesthesia.
12.12.2005 4:30pm
Aaron:
Er, "FBI agent" and "surgically" (should not drink and type)
12.12.2005 4:31pm