How an Ignorant Media Mischaracterized the PATRIOT Act During its 2011 Re-Authorization

Salesman. |||Over at The Atlantic, Conor Friedersdorf re-examines the things newspapers and commentators were saying about the PATRIOT Act and its surveillance-expanding Section 215 during the law's re-authorization two years ago. Some examples:

Nathan Sales, a law professor at George Mason University, wrote, "America needs the Patriot Act because it helps prevent terrorism while posing little risk to civil liberties. The law simply lets counterterrorism agents use tools that police officers have used for decades. And it contains elaborate safeguards against abuse."

McCarthyite. |||Emphasis Friedersdorf's (above and below). Here’s National Review tough-on-terrorism guy Andrew C. McCarthy:

It is a myth perpetuated by the Bush-deranged media that the Patriot Act was a dramatic expansion of federal power and that it unduly infringed on American civil liberties. For the most part, Patriot simply endowed the national security side of the FBI's house with the same powers that had long been exercised by the law-enforcement side. 

Weich-stag. |||And Assistant Attorney General Ronald Weich, in a letter to skeptical Sens. Ron Wyden (D-Oregon) and Mark Udall (D-Colorado):

the Executive Branch has done everything it can to ensure that the people's elected representatives are fully informed of the intelligence collection operations at issue and how they function.

Friedersdorf's conclusion? Secrecy is "corroding our democracy":

In 2011, the debate surrounding the re-authorization of a major piece of domestic legislation was, indisputably, a sham. Legislators were misled. Careful, informed commentators contributing arguments and analysis in the press unwittingly misled readers with content that lacked crucial context. Hard news articles were just as useless for formulating an informed opinion. 

I wrote on the same broad subject earlier this morning.

Reason on Section 215 here, including this Jacob Sullum piece from 2003 expressing skepticism at then-Attorney General John Ashcroft's assurance that worries over the clause amounted to "baseless hysteria."

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  • sarcasmic||

    It is my understanding that the PATRIOT Act took tools that the police had already been using for a while in the war against drug users, and allowed those tools to be used against people suspected of any thoughtcrime, not just those involving politically incorrect chemicals.

  • ||

    I am not clear on why a law had to be passed to allow that. If cops could do A,B and C in their efforts to catch Mr. Smith, could they not also do it to catch Mr. Jones? If they were operating respecting the 4th amendment then the target of their investigation was irrelevant.

    I think we have been sold a bill of goods. I am truly shocked.

  • The Sego Sago Kid||

    Nathan Sales? I loved his work as transporter chief Miles O'Brian on Star Trek: TNG. Looks like his head shrunk a bit though.

  • Mint Berry Crunch||

    Also, Andrew McCarthy was great in Weekend at Bernie's.

  • Spoonman.||

    He did a lot more on DS9.

  • Neoliberal Kochtopus||

    For you TNG/DS9 fans out there:

    Make sure you start at the beginning.

  • jester||

    Operation Shock and Awe was about preemptive war. As in 'we know what they're gonna do'. The PATRIOT act was its corollary to individuals: 'we know what you're going to do, so we'll just arrest you and save the world from terrorism.'

  • MJGreen||

    We know what you're going to do, because we suggested the idea to you and provided you with some (fake) explosives.

  • The Late P Brooks||

    The terrorists will gitcha if ya don't watch out!

  • The Late P Brooks||

    And it contains elaborate safeguards against abuse.

    Of course it does.

  • Tim||

    I notice not one of you is wearing an American flag lapel pin.

  • Pro Libertate||

    I have some pro libertate cufflinks. Does that count?

  • Lord Humungus||

    since I walk around bare chested, the lapel pin keeps falling out.

  • Pro Libertate||

    I'd have thought you'd have branded it on your chest.

  • Spartacus||

    Just get your nipples pierced and put it through one of them. That's what I do.

  • Tim||

    It's all just a joke to you guys, this is why the NSA has to watch all of us, all of the time.

  • Spartacus||

    If they want to watch me putting in my american flag nipple pins, they have to pay, just like everyone else.

  • ||

    Secrecy is "corroding our democracy"

    Greenwald linked to a piece in his latest which really expands on this idea

    The question that bothers me most can be put this way:

    Can there even be an informed public and consent-of-the-governed for decisions about electronic surveillance, or have we put those principles aside so that the state can have its freedom to maneuver?

    I call it unanswered but it’s more than that. It’s like we can’t face it, so we choose not to frame it that way. The question is less unaddressed than it is repressed by a political system that can’t handle the weight of what it’s done. But now that system is being forced to face what happened while it wasn’t looking— at itself. I will show you the problem by quoting four writers who have touched on it. Apologies for the long quotes. But if you can follow me through them, there will be a payoff (in pressthink) at the end
  • Matt Welch||

    That is linked in the Friedersdorf piece, and quoted in my blog post of this morning.

  • Raston Bot||

    In Nate's defense, he's a fucking idiot.

  • John||

    The Patriot Act is huge and complex. Further, reading it isn't good enough. To understand it, you have to understand law enforcement and how prosecutors and cops will actually use the language. I would be shocked if any of the journalists who opined on this ever even read the act. The law profs probably did. But neither the journalists or the law profs know anything about law enforcement. So, they were all talking out of their ass.

    The problem isn't The Patriot Act, it is the FISA provisions and a few other things within the act. And really outside of the small group of attorneys at FBI who do that work, few people understand FISA. And moreover, even if you did, unless you work there, you have no idea how it was going to be applied. And the people who knew that weren't talking.

    I know those provisions pretty well. But I don't have access to the FISA court decisions, so I really don't know what they mean in practice. Since the FISA court is secret, it is like trying to figure out a law by the language of the statute with no idea what the courts have said. It can't be done. The first thing that needs to change is that the FISA decisions have to be declassified. Without that, no one has any clue what this or any law that replaces it actually means in practice.

  • Pro Libertate||

    I recall quite vividly the Clinton administration trying to push quite a bit of what became the USA Patriot Act on us, only to be met by a weird coalition of privacy advocates, banks, and others. Unfortunately, 9/11 erased good sense and love of liberty.

  • R C Dean||

    That's my recollection. The Patriot Act was the authoritarian's wish list from way back that they hadn't been able to push through, and they "didn't let a good crisis go to waste".

  • John||

    That is not really true. Go read the Patriot Act some time. A lot of it is just making it clear that when the intel community knows about a threat within the US, they can tell the law enforcement community about it.

    And only a small portion of it actually relates to this issue.

  • Pro Libertate||

    I'm sure the counselor is thinking especially about the bank (and other financial and not-that-financial institution) requirements. They expanded BSA, OFAC, KYC, etc. quite a bit, after all.

  • Matt Welch||

    That last point, which Wyden has been hammering away at, is crucial.

  • John||

    Without doing that no legislative fix will ever work. If you read the Patriot Act the language is actually not that bad. The problem is that the language is only as good as the court who is interpreting it.

  • Pro Libertate||

    It's one thing to have secret information, like about where the next drone is going to strike. It's another thing altogether to have secret processes, secret checks and balances, secret oversight. By making those things secret, you make them nothing at all.

  • John||

    Imagine if all of the SCOTUS decisions were secret. We would know what the laws and regulations said, but we would have no idea how courts interpreted and applied them. I don't see how you could ever have any real understanding of the meaning of the law then.

  • Raston Bot||

    The NSA is selectively declassifying FISA-related documents. I think the process involves going to wikipedia and looking at updates to Snowden's slideshow, then declassifying whatever they see there.

  • Pro Libertate||

    That's like OJ secretly deciding what evidence can be used against him in court.

  • Emmerson Biggins||

    it is like trying to figure out a law by the language of the statute with no idea what the courts have said. It can't be done.

    I don't doubt the veracity of this statement. But damn do I wish it weren't true.

    When I become technocratic libertarian benevolent dictator, I will pass a meta-law:

    Any time the total compressed length of court commentary on a law becomes greater than the compressed length of the law itself, that law becomes null and void in 180 days after this is first noticed. It was poorly written. Try again legislative branch.

    This will have the bonus of acting like a sunset clause on evertyhing, thereby keeping congress critters busy repassing already existing laws.

  • BiMonSciFiCon||

    Hopefully the other professors at GMU Law are unrelenting in giving that guy shit.

  • T||

    The PATRIOT Act was a law enforcement wishlist that was passed uncritically in a stupid reaction to a one-off event. Anybody who doesn't see a problem in how the bill was passed (no substantive debate, not enough time to read it before the vote, etc, etc) has given up on representative democracy.

    This leaves out the actual content of the bill, which nobody bothered to read before it was passed originally. The reauthorization was basically "nothing bad has happened as a result of passing this, so reauthorize it".

  • Lady Bertrum||

    We had to pass the bill to not see what was in the bill.

  • Citizen Nothing||


  • Aresen||

    How an Ignorant Media Mischaracterized the PATRIOT Act During its 2011 Re-Authorization

    There is a difference between "ignorance" and "willing collaboration in deceit".

  • Invisible Finger||

    How cynical can you get?

    The press were merely following orders.

  • ΘJΘʃ de águila||

    It's that fucking Nazi Bush. Wasn't he still president in 2011?

  • Loki||

    Careful, informed commentators contributing arguments and analysis in the press unwittingly misled readers with content that lacked crucial context.

    Unwittingly? Somehow I doubt that.

  • Citizen Nothing||

    Never underestimate the ignorance and gullibility of reporters.

  • The Late P Brooks||

    In 2011, the debate surrounding the re-authorization of a major piece of domestic legislation was, indisputably, a sham.

    Obviously, BOOOOSH derailed the democratic process. It's not like our noble Senators and Congressmen are too busy pandering to their pet special interests and preening for the cameras to actually read and understand the stuff they vote on.

  • Dave Krueger||

    Wait. Are you saying that the establishment media lies? I'm stunned!

  • Dave Krueger||

    What you see in the establishment media is no more likely to be true that what you hear from the company big-mouth at the office water cooler. It's just that the establishment media reaches a bigger audience.

    Why people aren't more skeptical is beyond me. A basic understanding of human nature learned by most people before high school is all it takes to know that what people say is influenced less by the truth than by what they want you to believe.

  • John||

    And even if you don't think they don't mean well, the fact is these are very complex issues. Even if you are trying, you are likely to get it wrong unless you are very good.

  • Citizen Nothing||

    Reporters really like to think they are more skeptical and not as easily fooled or misled as others. It's a big part of our self-image for most of us. Alas, most of us are wrong.
    But neither are reporters less skeptical than average, they just have, as D.K. notes, a bigger audience than most.

  • John||

    The problem is that to be properly skeptical, you have to know the subject. For example, if you don't know anything about cars, you are not going to be skeptical of what a mechanic tells you. Not knowing anything prevents you from doubting what someone who does tells you.

    Reporters are forced to cover a lot of things and thus don't know much about the subjects they cover. They sometimes do. But not often. For this reason, they are never properly skeptical of what "experts" tell them. They just don't know how.

  • Aresen||

    For example, if you don't know anything about cars, you are not going to be skeptical of what a mechanic tells you.

    My knowledge of cars is limited to "the gas goes in here and the key goes in there" plus being able to change a tire.

    That doesn't make me trust mechanics.

  • John||

    You may not trust them. But if you don't know anything, you won't be able to tell exactly how they are lying to you. And not every mechanic is a crook and some cars really do need repairs. Without knowing something about cars, you have no way of knowing which is which.

    Reporters have the same problem with virtually everything they cover. They have to report something. And someone is telling the truth. They just can't tell who.

  • Aresen||

    Actually, what I do WRT mechanics is I consult people I know to be knowledgeable about cars for reference to a reliable mechanic. I even bring them along to the mechanic if I need an explanation.

    For a reporter, much of the basic information can be obtained from reference materials at hand. Plus, if something is on your beat, you should learn as much as possible about the subject before you interview a person who has a vested interest in a policy being adopted.

  • Dave Krueger||

    I agree. One can always be skeptical, but it's true that the only way anyone can ever know if they are being fed a line of bull is to compare it with other sources. In other words, being skeptical is a motive to learn more.

    There is no doubt that the problem of information asymmetry puts one at a disadvantage, but not knowing everything about something doesn't mean you have to accept what someone else says as god's honest truth.

    Furthermore, there are topics where you ARE going to be knowledgeable and CAN tell if you're being fed a bunch of BS. If so, then you're not being too bright if you trust that source on other topics. People do this a lot when it comes to government.

  • The Late P Brooks||

    Reporters really like to think they are more skeptical and not as easily fooled or misled as others.

    It takes a special kind of skepticism to deny reality in the pursuit of hope.

  • finecare||

    The patriot act has enabled the emergence of a police state.

    What people don't seem to understand is that according to the 2012 Bureau of Justice Statistics' Census of State and Local Law Enforcement Agencies (CSLLEA), there are 17,985 state and local law enforcement agencies employing at least one full-time officer or the equivalent in part-time officers employing more than 1.1 million persons on a full-time basis, including about 765,000 sworn personnel (defined as those with general arrest powers). Agencies also employed approximately 100,000 part-time employees, including 44,000 sworn officers.
    The legislatures continue to drown the American people with thousands of laws allowing all these law enforcement personnel to arrest any one of us on the slightest pretext.

    G-d save us!


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