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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.
|11.10.05 @ 10:50AM|#
Next there'll be the Sliced Bread Act, followed shortly after by the Greatest Show on Earth Act.
|11.10.05 @ 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...
|11.10.05 @ 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.
|11.10.05 @ 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|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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."
|11.10.05 @ 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...
|11.10.05 @ 1:30PM|#
More effective oversight of police agencies? As in, Court oversight? As in, what the PATRIOT Act is designed to restrict?
|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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.).
|11.10.05 @ 1:47PM|#
Oh, and the solution to PATRIOT is political. Don't expect much help from the judiciary.
|11.10.05 @ 1:51PM|#
zach,
When folks start talking about "probable cause," they clearly are
contemplating some role for the judiciary.
|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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!
|11.10.05 @ 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).
|11.10.05 @ 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.
|11.10.05 @ 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|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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!!!!!!!!!!!!!
|11.10.05 @ 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|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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.
|11.10.05 @ 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.
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