Nathan Sales Defends the Patriot Act:
I'm not an expert on the Patriot Act, but I confess that my general impression of it is negative (all these libertarians I hang around with, I guess).
But my colleague Nathan Sales has a column in the Christian Science Monitor that gives me some pause. His argument is that the Act itself is fundamentally ok and not really that radical and that its proper use is a matter of prudence and oversight not a radical limiting of its reach (or its elimination). For a skeptic like me, I found it to be quite thought-provoking.
Either ask for the tools as a matter of general law enforcement (and be prepared to justify that to Congress) or restrict those tools for use in bona-fide cases of international terrorism (and, no, potheads in BC are not international terrorists).
As almost always, the key is to actually examine the law itself and the changes it made, rather than to listen to the rabble screaming for or against it.
Pat, if S&P warrants ought to be regulated for general law enforcement use, Congress should just come out and say that they are establishing a standard for S&P warrants for general law enforcement. Why do such general provisions belong in a bill for providing anti-terrorism tools?
Your cockfighting example brings me back to the days in 2002-03 when I often used to blog about stories that would blame the Patriot Act for something that invariably had pretty much nothing to do with the Patriot Act. Ah, the good old days of "the Patriot Act ate my homework." And then the old complains about how no one read the bill (they only had a month!) and how many of the provisions weren't directly about terrorism (as the Administration acknowledged and everyone knew, but whatever). Good times.
I would object to a bill containing only provisions that I support if it were marketed as doing something entirely different than what it was intended.
Moreover, I support the IL Constitution's requirement that each bill passed by the legislature be only "about one time".
Those should have been passed in a separate bill. I have no qualms with the provisions, only the mixing of unrelated matters.
Because, generally speaking, federal legislation such as the PATRIOT Act is written as a long series of editing instructions for the current USC. Such legislation often focuses on specific sections of the USC and frequently includes edits to unrelated sections including those that involve the legal definition of matters like, e.g., what constitutes an electronic communication. An important function of the PATRIOT Act was to clarify a large number of statutory matters relating to FISA, intelligence gathering, and like matters and to modify these in light of advances in communication technology like cell phones, the Internet, email, etc. Congress should probably have dealt with these matters incrementally in the decades between FISA and 9/11. But they didn't. It took 9/11 to focus Congress on these issues. Congress had to be deal with them in order to make other crucial aspects of the PATRIOT Act function as designed, so Congress included all these incremental pieces of supporting legislation in the PATRIOT Act.
josil, of course the provisions themselves aren't at issue (I've said that before), but the precedent of using a terrorist attack to go shopping on the government's list of desired revisions to the law is not a wise one.
Absolutely. Those could have been down any time in 2002, however.
Why would you need to change general provisions to make crucial aspects of a terrorism investigation work as intended? In the case of S&P warrant, for instance, there was no need to disturb the status quo generally when you can write the provision to only apply to investigations that the AG certifies are related to international terrorism.
I don't see the need to be coy about this whole thing -- the FBI wanted a lot of these provisions before 9/11 and just happen to get them in a bill about reforming our response to terrorism?
So to criticize the Patriot Act for that flaw, without noting that it applies equally to just about every single piece of major legislation passed by Congress in the past 50 years, is just as misleading as you claim the Patriot Act "marketing" was.
By the way, who cares about the "marketing" of some bill? The beauty of a bill is that it has specific text. We can read it for ourselves. When Congress takes more than 3 days to consider it, we can read it and call our Congressmen about it, and tell them what we think of it, no matter how it's "marketed."
And yes, the FBI wanted a lot of these provisions long before 9/11. They didn't get them and, partly as a result, 9/11 happened. Wow! What a shocker. The FBI said: "we TOLD you we needed those provisions, can we please have them NOW?"
This article implies that the PATRIOT Act only made things explicitly illegal that were already enough to get people into serious trouble, and further that this Act protects the government legally for doing something that was a normal practice. It largely fails to mention the scores of other pointless provisions that were unnecessary or seemed out of place for an Act created to stop/prevent terrorism. Just the name of this Act alone, but with the additional "sense of urgency" in congress, show the theatrics of the situation which made it into law.
Further the article claims that abuses of this Act could be fixed through transparency in government, but isn't it easy to claim that this bill removes some of that transparency?
So then are we to believe that our law enforcement could not have broken up the supposed terrorist organizations without the PATRIOT Act? Of course the Justice Department wants you to assume that's the case, but at least the organization in Portland has been challenged as being nothing more than a charity, and that the government had been tracking it long before 2001.
I still don't want to choke this law down as necessary to protect the country from 19 guys who got less than million dollars in funding over the course of years. The only laws that could prevent such a thing would be too draconian for the Yoo's of this country.
It is a bit interesting that so many people who rabidly assert that the federal government is generally inept in most other ways and are eager to impose burdensome regulations and otherwise bungle everything it touches, seem to believe that those members of the federal government involved in "security" are benighted experts who have our best interests at heart and can be trusted to do the right thing when it comes to our liberty and fundamental rights.
I'd rather not. Since I made no specific claims, you could argue:
A) in the same manner, or
B) in a superior one.
Just trying to give you the leg up on an argument that's more ideological and less fact-based than arguing about abortion. If you want my critiques, you'll find them in the writings of Jefferson.
Can you believe that 8 years out, we're still having the SAME discussions with people who are seemingly incapable of pointing to any specific provisions of the Act that they don't like?
I have very clear memories of nearly identical conversations dating back to the time the bill was still being debated!
Oren linked to Michael Silence's comment, which linked to the news story: Patriot Act used to search for evidence in cockfighting case. Some relevent grafs:
"A" is not an option, because it would involve something along the lines of saying you want us to be attacked again, because you oppose the law. That's clearly ridiculous, but it is the opposite of your general whining about the law.
"B" is also not an option, because you have just said generally that the bill is bad. There's lot of provisions in it, so I don't know which ones you don't like. I suppose I could point out a couple of common fallacies critics have made about the bill, but I've already done that with one of them (the sneak-and-peek warrants), and you haven't addressed that issue.
The writings of Jefferson, eh? Which provisions of the Patriot Act do you think violate Jeffersonian principles? Why, exactly, do you think that particular law violates Jeffersonian principles?
No, you think it's just a bad bill, but you have no idea why that is, other than that it's some kind of general encroachment on your freedom. But you can't say how it encroaches on your freedom.
The point is that cops could ALREADY do that, long before the Patriot Act was ever passed. Cops had been executing "clandestine entry" warrants for many years. The Patriot Act put LIMITS on their use. It for the first time ever LIMITED the crimes for which those types of warrants could be used. If the Patriot Act had never been passed, those cops could STILL have done exactly what they did, perfectly legally.
Both of you, Pat &Mr. Cramer, are correct. I cannot specify specific provisions within the act that I find encroaching on my freedom. I can not say that law enforcement seeing what books I've read is necessarily an infringement on rights. I have no idea of the scope of this Act, or in all the ways in can be applied, because even the Wikipedia article (which features Orin Kerr as a wiki) is too damn long to read.
The best information I have about the provisions of this bill come from articles like this one. Which I critiqued above: it sets a precedent of providing increased energy to the government, it removes transparency (if only by being so damn long that even members of Congress didn't read it, and makes it easy for government to get warrants), and is not going to do anything to prevent another terrorist incident (Anthrax, OKC bombings, JFK, a single person doesn't leave themselves voicemails, but can be terrorists all the same).
I don't work at the ACLU, I do barely understand this act, I have less understanding of the Patriot Act then I do taxes, but everything I have read, especially by organizations that I find credible (Cato, ACLU, &VC) have for the most part been highly critical for providing too much ease for the government to circumvent the principles of the 4th amendment. Yes, you are entirely correct, I have barely an idea of what I'm talking about, that is why I was writing in generalizations and theory.
Could you find me an article to explain why this Act is necessary? Because that is why in principle I do not endorse this Act, as I would any law. Because I do not understand the explicit need for this Act, I oppose it.
I thought, but maybe I'm confused, that Prof. Kerr was saying that the story had nothing to do with the PATRIOT Act. I was trying to understand how to reach that conclusion.
I am not sure why you think the reporter did no "real research" or did not "report the actual truth". I'm certainly not vouching for the reporter's accuracy, but I don't see how the reporter's story differs materially from your own point that S&P warrants existed prior to the PATRIOT Act.
More from the news story above:
Sure, you can have them NOW for any case involving international terrorism and, we can discuss at a leisurely pace whether that ought to be extended too all investigations.
Not exactly, they had to get the judge to sign off on it.
In some cases, the Act is more strict than the judges would have been, in some cases more lenient. Similarly in the case of roving wiretaps, it was up to the judge whether a particular application satisfied the particularity standard of the 4A, whereas the act standardized it.
Again, I don't really have much beef with the provisions as applied to international terrorism, but it's a bit disingenuous to go to the American people and say "Hey, we need these provisions to fight terrorists and by the way, can you make them apply to my drug investigations too!."
I guess I was the only one who, on quick reading of title, thought it had something to do with a hotdog vendor donating some profits to defend the Patriot Act...
One can only imagine the reception should it be reported that John Yoo proudly stands by his testicle-crushing position (until the mitigation phase of his disbarment proceeding, at least), or that Judge Bybee is still secretly proud (hiding behind his robe, of course) of his wastecanned torture memos, or that David Addington still dismisses all criticism of his discredited handiwork.
Anyone know how Mr. Addington's job search is going? Surely the Syrians, Uzbeks or Algerians could use a seasoned torture counsel . . . did I miss the announcement?
"One can only imagine the reception should it be reported that John Yoo proudly stands by his testicle-crushing position"
That's really great writing. To come up with a metaphor for a strong position so evocative that...what? OH. NOT a metaphor. Sorry...
Given the clash between our hard-fought traditional liberties and National Security Letters, no-notice searches, warrantless searches, vague powers, indefinite detention and the like, should not the first burden should be allocated to Patriot Act supporters to justify their support of the vast expansion of government power (and corresponding diminution of civil liberties) associated with the Patriot Act?
Which particular provisions of the Patriot Act were necessary to enable a competent government to defend the United States?
your point about 'hasty' looks appropriate. two questions:
1. what do you think of the renewal of PATRIOT Act? that couldn't have been hasty.
2. do you share the same feeling about the hasty stimulus bill?
2. My feelings about the stimulus bill resemble my feelings about the PATRIOT Acts in some important respects. Opportunists have used legitimate concerns regarding important issues, and an imprecise clamor for action, as cover for crazy-quilt, overblown, dubious legislation. One important difference is that the opponents of the PATRIOT Acts, in my judgment, wore whitish hats. With respect to the stimulus debate, neither side has exhibited much claim to the higher ground. In both contexts, I fear, strong public policy will be among the casualties.
If that is your argument then I think you expect too much. It would be confusing to change the public identification of the law as it was being debated in congress.
The rules already applied to drug and sundry cases. The Patriot Act was playing catch up.
Was the Portland charity whose members used to have shooting practice in a local quarry?
In many cases, the act allowed investigative techniques beyond what was acceptable before (unless you pulled a very sympathetic MJ -- there was certainly a stochastic element).
Most clearly, removing Jaime Gorelick's wall that prevented counterterrorism and criminal investigations divisions of the FBI and CIA to talk to each other and share information. This was a pretty direct cause of the inability to put two and two together about the reports that FBI was getting from their field agents about Arabs taking flight training for jets--but not particularly interested in takeoff or landing training.
I don't think the S&P warrant to bug marijuana smugglers in Northern WA would have passed muster in the 9CA without the specific statutory authorization. Maybe in a more conservative district ...
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.