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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.

Oren:
I don't think that the PATRIOT act was particularly whacked when applied to terrorists (even if, IMO, that's a profound waste of time) but what irks civil libertarians in me is its use in drug and other sundry cases. It's an issue of truth in advertising. If the executive feels that greater latitude is required to combat drug smuggling or bank fraud, it should have the integrity to go to Congress and ask for the power to go after those things. Instead, we were sold PATRIOT as a tool for preventing terrorist attacks and instead, it's used to bug weed smuggling tunnels on the Canadian border.

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).
3.6.2009 3:57pm
PatHMV (mail) (www):
In many instances, the Patriot Act created NEW protections which did not previously exist. For example, critics decried the Patriot Act for allowing "sneak and peek" warrants, invading a home or business quietly, without leaving a trace. But the Supreme Court had long before authorized sneak and peek warrants, and they were routinely used in mob investigations. Prior to the Patriot Act, there were no statutory limitations on such warrants, it was up to individual law enforcement officers and judges to decide if they were appropriate in a particular case. The Patriot Act actually imposed standards for such warrants for the first time.

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.
3.6.2009 4:00pm
Oren:
Don't forget cockfighting. That's important to national security.

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?
3.6.2009 4:05pm
Clayton E. Cramer (mail) (www):

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?
What's your objection: You aren't happy that a side effect of the PATRIOT Act is that it put stricter standards on S&P for non-terrorism cases?
3.6.2009 4:11pm
OrinKerr:
Oren,

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.
3.6.2009 4:13pm
PatHMV (mail) (www):
Pushing through a major bill, with long term implications for the entire country, in just ONE MONTH???? How horrible! My God, how could Congress and the Administration ever do such a thing?
3.6.2009 4:17pm
Oren:
Clayton, I object to any attempt to change general provisions of law enforcement in a bill marketed as being about terrorism.

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".


... how many of the provisions weren't directly about terrorism (as the Administration acknowledged and everyone knew, but whatever).

Those should have been passed in a separate bill. I have no qualms with the provisions, only the mixing of unrelated matters.
3.6.2009 4:26pm
josil (mail):
I have read a lot about repression and worse in the Soviet Union and Germany in the 1930s. Having this perspective, I cannot not understand the overblown reaction to the Patriot Act. If you know what it means to hear a knock at the door in 1930s Europe, it is difficult to understand the "shreddingthe Constitution" rhetoric emanating from hysterical Libertarians and the even more numerous left wing cranks.
3.6.2009 4:26pm
Oren:
sed s/"about one time"/"about one thing"/
3.6.2009 4:26pm
Pro Natura (mail):

Why do such general provisions belong in a bill for providing anti-terrorism tools?

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.
3.6.2009 4:27pm
Oren:
Pat, this is a particular flaw that both parties are quite guilty of. Why does that matter here?

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.
3.6.2009 4:28pm
Oren:

Congress should probably have dealt with these matters incrementally in the decades between FISA and 9/11.

Absolutely. Those could have been down any time in 2002, however.


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.

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?
3.6.2009 4:35pm
PatHMV (mail) (www):
Oren, I too would like for Congress to adopt a "single purpose rule" for bills, much as we have in my state. But they haven't.

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?"
3.6.2009 4:49pm
FWB (mail):
Ex parte Milligan
3.6.2009 4:55pm
Fidelity (mail) (www):
Certainly and interesting article, but it does little to address the concern of what a precedent the PATRIOT Act presents. How will the next John Yoo in 20 years, of my generation, interpret this Act? How will this Act be interpreted by the children of VC readers who grow up with this in everyday life?

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?


"According to the Justice Department, the Patriot Act helped take down Al Qaeda cells in Buffalo, N.Y. and Portland, Ore."


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.
3.6.2009 4:57pm
PatHMV (mail) (www):
Fidelity, care to actually point to specifics to back up your hysterical claims? So, you know, there could be actual debate over the specifics, rather than labeling and name-calling?
3.6.2009 4:59pm
AlanfromOntario:
It's proper use is a matter of prudence?

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.
3.6.2009 5:00pm
Clayton E. Cramer (mail) (www):

Clayton, I object to any attempt to change general provisions of law enforcement in a bill marketed as being about terrorism.
Odd. I thought that fighting terrorism had some significant law enforcement involvement. I can see if PATRIOT Act had loosened general provisions of law enforcement under the pretense of fighting terrorism. But in many areas, it tightened those provisions.
3.6.2009 5:02pm
Clayton E. Cramer (mail) (www):

Certainly and interesting article, but it does little to address the concern of what a precedent the PATRIOT Act presents. How will the next John Yoo in 20 years, of my generation, interpret this Act?
Fortunately, it had a five year expiration on it. And I was disappointed when it came up for renewal, in spite of all the liberal whining about it--that they didn't make it again a five year expiration. They made it permanent. (There were some specific provisions, such as taking down Jaime Gorelick's wall that should have been made permanent.)
3.6.2009 5:05pm
Clayton E. Cramer (mail) (www):

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.
Could you list the specific provisions that have you upset? Is it taking down Gorelick's wall (which did definitely prevent cooperation between FBI's counterintelligence and criminal investigation branches in a way that made 9/11 possible)? Is it allowing judges to issue warrants for lists of library books that someone checked out? Be specific. I might agree with you on some items. But my experience is that most people upset about the PATRIOT Act just don't like the idea that anything Bush touched isn't infected.
3.6.2009 5:09pm
Fidelity (mail) (www):
care to actually point to specifics to back up your hysterical claims

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.
3.6.2009 5:10pm
PatHMV (mail) (www):
Clayton,

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!
3.6.2009 5:11pm
Fub:
OrinKerr wrote at 3.6.2009 5:13pm:
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.
I'm not sure I understand this comment, except that perhaps Oren's link was not directly to the cockfighting/PATRIOT Act story.

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:
Acting under the authority of the Patriot Act, the agents had obtained a search warrant that allowed them to clandestinely enter the property, search for evidence and not tell anyone about it until the government or a judge was ready to let the owners know they'd been there.

Originally touted as a tool in the struggle against terrorism, the Patriot Act now was being used in the hills of East Tennessee as part of a shadowy war that had been going on for decades, a struggle that pitted the federal government against a homespun Appalachian culture that had churned out generation after generation of proud outlaws.
3.6.2009 5:19pm
PatHMV (mail) (www):
Fidelity,

"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.
3.6.2009 5:19pm
PatHMV (mail) (www):
Fub:

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.
3.6.2009 5:21pm
PatHMV (mail) (www):
I realize that it's difficult for the public to understand these issues, when reporters like the one Fub cites are incapable of doing real research and reporting the actual truth.
3.6.2009 5:24pm
Fidelity (mail) (www):
Which provisions of the Patriot Act do you think violate Jeffersonian principles?

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.
3.6.2009 5:46pm
Fub:
PatHMV wrote at 3.6.2009 6:24pm:
I realize that it's difficult for the public to understand these issues, when reporters like the one Fub cites are incapable of doing real research and reporting the actual truth.
First, I simply posted the link that Michael Silence provided in his comment on Knoxnews. Oren linked to Silence's comment earlier in the thread.

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:
Such warrants weren't a new tool that was created by the Patriot Act, according to the Justice Department. The ability to conduct such searches had been upheld by the courts for many years, but the 2001 Patriot Act codified how they are to be used and, according to critics, greatly expanded the conditions under which they can be sought.
3.6.2009 5:47pm
Oren:

"we TOLD you we needed those provisions, can we please have them NOW?"

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.


If the Patriot Act had never been passed, those cops could STILL have done exactly what they did, perfectly legally.

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!."
3.6.2009 6:31pm
Oren:
Incidentally (and off-topic), I owe Orin an apology (or at least a confession I was wrong) about Herring. It seems my dreaded result has not come to pass:

Where the police intentionally used an old warrant list, they could not rely on Herring to avoid application of the exclusionary rule. People v. Morgan, 2009 Ill. App. LEXIS 46 (February 9, 2009):
3.6.2009 6:32pm
Thoughtful (mail):
Nathan Sales Defends the Patriot Act

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...
3.6.2009 6:36pm
ArthurKirkland:
One of the authors of the Patriot Act tells us he believes his work still holds up . . . and that generates thought-provoking pause?

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?
3.6.2009 8:05pm
Thoughtful (mail):
Arthur Kirkland:

"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...
3.6.2009 8:12pm
Prosecutorial Indiscretion:
I, too, grew weary of people identifying every Bush administration policy they disliked as arising from the Patriot Act. God forbid anyone actually read the actual statute. There's a reason it passed with so little opposition - by and large it's a reasonable piece of legislation. And it's a bit ridiculous how even now people bring up complaints factually divorced from the law itself, and how they are so easily cowed when asked to identify particular provisions that anger them.
3.7.2009 2:16am
ArthurKirkland:
The original Patriot Act was passed a month or so after September 11. It was a hasty, overreaching reaction by an overwhelmed (and, we have learned, undermanned) administration enamored of shortcuts and one-way secrecy.

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?
3.7.2009 11:44am
Sagar:
ArthurKirkland,

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?
3.7.2009 12:11pm
ArthurKirkland:
1. The process associated with the ironically named PATRIOT II was better in one respect -- more deliberate, although its parents tried to misuse time pressures -- but shared plenty of the fearmongering and manipulation associated with the original. The substantive problems -- lack of sunset provisions for a lengthy list of hard-to-define, hard-to-justify expansions of government power -- strike me as a larger issue than any modest improvement in process.

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.
3.7.2009 1:30pm
kietharch (mail):
Doesn't legislation proposed by the executive change shape as it goes through congress? if so in this case ( I do not know if congress made any changes at all to the Patriot Act but I suspect that they did) are you arguing that the initial public title of the proposed law should then have been changed?

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.
3.7.2009 4:18pm
davod (mail):
"but what irks civil libertarians in me is its use in drug and other sundry cases"

The rules already applied to drug and sundry cases. The Patriot Act was playing catch up.
3.7.2009 9:34pm
davod (mail):
"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."


Was the Portland charity whose members used to have shooting practice in a local quarry?
3.7.2009 9:37pm
Oren:

The rules already applied to drug and sundry cases. The Patriot Act was playing catch up.

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).
3.8.2009 11:37am
Clayton E. Cramer (mail) (www):

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?
Your argument would be a bit stronger if you could articulate the specific examples that you are talking about. My guess is that you can't. With a small number of exceptions, the PATRIOT Act formalized and made statutory actions that had been accepted by the courts for many years. In some cases, such as requests to see lists of library books checked out, it actually narrowed governmental power by requiring judges to issue warrants.


Which particular provisions of the Patriot Act were necessary to enable a competent government to defend the United States?
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.
3.9.2009 11:49am
Oren:

Your argument would be a bit stronger if you could articulate the specific examples that you are talking about.

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 ...
3.9.2009 12:10pm

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