Is Extending the PATRIOT Act a Compromise?

|

House Judiciary Committee Chairman F. James Sensenbrenner has introduced a bill that would make permanent the 16 provisions of the USA PATRIOT Act that are set to expire at the end of the year. The legislation throws a few bones to critics of the PATRIOT Act:

1) It would change the standard for obtaining secret Section 215 orders demanding "any tangible thing." Currently the FBI need only tell the Foreign Intelligence Surveillance Court "that the records concerned are sought for an authorized investigation…to protect against international terrorism or clandestine intelligence activities." Under Sensenbrenner's bill, the FBI has to state "that the information likely to be obtained from the tangible things is reasonably expected to be (A) foreign intelligence information not concerning a United States person, or (B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities." But it looks like the court will still be required to take the government at its word, as opposed to deciding whether it has made an adequate showing of relevance.

2) Sensenbrenner's bill also would clarify that an individual, business, or organization presented with a Section 215 order has a right to consult an attorney and to challenge the order before a review panel, despite the section's nondisclosure requirement. But since such orders will usually pertain to the records of a third party (a patient or bookstore patron, for example) and the recipents will still be barred from informing the people whose records are sought, it's doubtful that this provision will provide much protection in practice.

3) Perhaps most significantly, the bill does not include new administrative subpoena powers requested by the Bush administration that would allow the FBI to obtain records without even cursory judicial review. A spokesman told The Washington Times that Sensenbrenner "has not spoken fondly in the past of administrative subpoenas."

The administration's reaction was mostly positive:

"We will consider suggestions for clarifying and strengthening the act," [said White House spokeswoman Dana Perino]. "We appreciate Chairman Sensenbrenner's action today, as it is a strong demonstration of the importance of these tools for law enforcement to combat terrorism."

Asked specifically about the failure to include administrative subpoenas, she said, "The legislative process is just beginning, and we will continue to work with Congress as it moves forward. Our number one priority is reauthorization of the act as it was passed in 2001."

Those comments lend support to the theory that the main point of the proposal to expand PATRIOT Act powers was to make retaining them by repealing the sunset clauses look like a compromise.

NEXT: Mexico's (and the U.S.'s) Real Problem (Watery Chicken Potpie Edition)

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Yeah, if you threaten to shoot someone in the face, then, shooting them in the foot looks pretty good by comparison, eh?

  2. Jacob, your reading seems right on, but I have to say I think Patriot Act critics are fools to reauthorize Patriot Act powers without sunset clauses. It keeps the DOJ from overly using them.

    But getting a win on no admnistrative subpoenas would be good…

  3. Best of the Web pointed out that administrative subpoena are widely used to investigate things like Medicaid fraud and that it seems a tad strange to say that such powers are legitimate to prevent monetary crimes but not to prevent mass murder.

    This very much fits a pattern with criticisms of the Patriot Act. People get all hysterical about some supposed unprecedented power granted by the act only to discover it has been in common use in other contexts for a long time. Critics can’t point to incidents were the powers have been abused but nevertheless they are absolutely confident they will be if used to stave off military attacks.

    Most critics can’t seem to get their head around the idea that unlike civil criminals, terrorist cannot be deterred by threats of capture after the act. With civil criminals we can safely wait until there is public evidence of a crime. With terrorist, if their is public evidence of their crime it is to late. To prevent deaths, they must be intercepted before they act and indeed before they have committed any crimes at all. The only means of doing that is by actively searching for people whose pattern of activity matches that of known terrorist. That in turn means searching through data associated like library records, tax records, intent logs, credit card records etc looking for signs of terrorist-like activity.

  4. terrorist cannot be deterred by threats of capture after the act

    Right. Terrorists obviously don’t care what happens to them after their attacks, hence the attackers in Spain (and probably London?) used timers or remote-controlled detonators.

  5. Great way to apologise for this bullshit, Shannon. I suppose next you’re going to argue that since the gov’t has wanted a lot of these expanded powers for years, isn’t now the time to give it to them? Afterall, they’re only going after terrorists, right?

    I’m sorry, but the price we pay to live in a free society is the fact that folks can move about relatively undetected if they want. The includes serial killers and other “bad guys” as well as terrorists. Will atrocities be commited? Probably. But does that warrent taking away the principles this country was founded on? If you think so, I feel sorry for your (anybody who feels that way) grasp of what America stands for.

    I love this little tidbit: “(B) relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities.” Which, again, could be just about anything.

  6. Well Lowdog sit on your ass and treat terrorists like common buglers and wait and see what happens. Then, when we have another 9-11 or worse, see how many civil rights we have then. Most people in this or any country will not give a rats ass about their rights to privacy if they feel like having them will put them in real danger of death. If letting the FBI look at my credit card records or amazon buying habbits is the price of stopping terrorists, I can pay that price. I would rather pay that price now then have another 9-11 and pay the price in liberty I would have to pay to a truely paniced and angry public.

    There is only one change I would make to the Patriot Act. I would make any of the evidence ceased under it admissible only in Court cases and relating to charges involving terrorism. This would prevent DOJ from using the powers to investigate garden variety crimes such as drugs or racketeering. I do agree that if unrestrained, prosecutors and police will use these tools in ways they were never intended to be used. Having such a clause would go a long way to prevent that.

  7. thoureau,

    The obvious counter-argument to your assertion is 9/11 where all the successful attackers planned to die or the numerous suicide attacks world wide over the last 15 years.

    Terrorist are not civil criminals. They are have military mindset. If they can carry out their attack and get away they will but if it is a choice between carrying out a successful attack and getting caught or killed and not carrying out the attack at all they will chose the former. The bigger and more lethal the attack the more likely this is to be true. Somebody willing to kill 10,000 people with nerve gas for political reasons is probably willing to die in the attempt (or at least can find a patsy who is.)

    With civil criminals we can almost always plan on the fear of capture after the fact to deter a crime. Crimes were this is not true, like passion driven murder-suicides, are impossible to deter. One recent such crime occurred in a courthouse in the midst of dozens of armed police officers. We have to plan on the very real possibility that the terrorist either don’t plan on surviving or considered it acceptable if they get caught after the fact.

    It is theoretically possible to carry out a terrorist attack without committing any civil crime at all prior to the attack. It is definitely possible to do so without committing an obvious public crime whose investigation would provoke no political controversy. The only crime that may exist is conspiracy which usually can only be uncovered by active spying of some kind.

    Consider what the “evidence” of 9/11 would look like when portrayed in the media if the plot had actually been intercepted: A money trail uncovered by covert intelligence, anti-American ranting on the internet and a bunch of Arab guys in flight-training. Big deal. Beyond overstaying their visas they didn’t commit any civil crimes at all. It would be very easy to portray the investigation into the plot as a comically hysterical overreaction on the part of the FBI. Civil libertarians could legitimately have claimed that the FBI had no grounds for an investigation except for a suspicious pattern of otherwise legal behavior.

    Had we been willing to stop thinking of terrorism as a civil problem pre-9/11 it quite possible we could have headed of the attacks and we wouldn’t be having this conversation right now.

  8. Shannon-

    Traditional law enforcement tools such as patrolling the streets and waiting for victims to complain of a crime will indeed fail against terrorists. What about the intelligence approach? Plant undercover guys, pay off informants, etc. Going to known bad guys and seeing who they work with seems more fruitful than letting Alberto Gonzales go through my credit card receipts to find out what sort of Valentine’s Day gift I bought for my wife.

    Indeed, one of the best arguments for due process is that it forces the cops to focus: Every cop who’s busy investigating the kid who checked out some “subversive” books from the library is a cop who could be following some more promising lead. By forcing the cops to justify their actions in front of a judge we make sure the cops are thinking carefully about what they’re doing. Call me crazy, but I feel safer if I know that somebody is making sure the cops are thinking carefully about their work.

  9. Lowdog,

    There are exactly zero historical examples of societies becoming totalitarian by the incremental erosions of liberties. We can argue whether it might happen or will happen but we can’t point to any real world cases where it has actually occurred.

    By contrast, we can point to numerous instances where the breakdown in civil order caused by the ineffective use of state police powers lead directly to an explosive expansion of state power. Both the rise of Fascism and Communism were preceded by widespread civil and economic disorder. People supported the increased power of the state as the only means of surviving the chaos.

    You might be personally willing for tens of thousands of Americans to die every year in terrorist attacks but don’t count on the vast majority of your fellow citizens feeling the same way. The surest road to authoritarianism is an ineffective state.

    The first obligation of the state is to protect citizens from violence. A libertarian, minimalist state must do so in a highly effective focused manner. Correctly identifying the nature of a threat is the first step. We must think of terrorist as covert military teams operating within the civilian population and create a body of law around that concept. Most of the powers in the Patriot Act are in fact based on this concept. The major task then is restrict the powers granted by Act solely to acts of politically motivated violence.

  10. Shannon,

    And USA PATRIOT supporters can’t get their heads around the idea that when you grant the government powers under one pretext, it will find some way to abuse them for another purpose. You can’t have any confidence that the people the government is going after are “terrorist,” just because it says they are. We’re not talking about “terrorsts”; we’re talking about ACCUSED terrorists. And thanks to the USA PATRIOT act, the accused are prevented from even *knowing* they’re suspected, or exercising the traditional common law protection of being present at a search to make sure evidence isn’t planted.

    As for precedent uses of administrative subpoenas, that’s the damn POINT! The administrative state has already created huge lacunae in our traditional common law rights of due process, starting with administrative robbery (excuse me, civil forfeiture) by federal tax collectors in the 19th century. Since then, the administrative state has gradually expanded the use of prerogative law, with more and more agencies able to make arrests and seize property without ever proving your guilt to a jury.

    Apologists for USA PATRIOT are always saying, “We’re just using the same powers to fight terrorists that we were already using in the drug war.” That’s not a defense of USA PATRIOT–at least for anybody but statist shitheads. It’s an indictment of the drug war.

  11. “There are exactly zero historical examples of societies becoming totalitarian by the incremental erosions of liberties. We can argue whether it might happen or will happen but we can’t point to any real world cases where it has actually occurred.”

    Shannon, I assume that you have a “nuanced” explanation for: (A) Soviet Union (erosion from 1921 to 1936); (B) Germany (erosion from 1920 to 1941); (C) Japan (erosion from 1920 to 1936).

  12. SR – indeed.

    John – I like your suggestion. But when you’ve got the government claiming that drugs fund terrorism, we’re back to square one.

    I think we should be hunting these motherfuckers in their caves, and trying to infiltrate their ranks, as thoreau said. I also fail to see how, with the tools they had before 9/11, the intelligence community couldn’t have gone after terrorists just fine.

    I guess I’m just not very worried that we’re going to have “…tens of thousands of Americans…” dying every year if we don’t have the fucking patriot act. I mean, seriously, do people really believe that the patriot act is the only thing standing between us and a firey death by jihadists?

  13. “There are exactly zero historical examples of societies becoming totalitarian by the incremental erosions of liberties. We can argue whether it might happen or will happen but we can’t point to any real world cases where it has actually occurred.”

    How can you make this assertion? Based on what “facts?” This is a vacuous argument.

    I, too, would like to see your nuanced explanation for Stalinist Russia.

    Live free, fall or fight.

  14. “Critics can’t point to incidents were the powers have been abused but nevertheless they are absolutely confident they will be if used to stave off military attacks.”

    I’m no expert on Patriot. …but it’s my understanding that one of the provisions allows the federal government to slap a gag order on anyone hit by an administrative subpoena. If that is indeed the case, doesn’t that make it extremely difficult for critics to point to incidents where powers have been abused?

    …The federal government hasn’t condemned its own actions regarding Patriot in closed committee, so there must not be any incidents of abuse–am I supposed to accept that?

  15. Terrorist are not civil criminals. They are have military mindset. If they can carry out their attack and get away they will but if it is a choice between carrying out a successful attack and getting caught or killed and not carrying out the attack at all they will chose the former.

    My own recent experience suggests that 2/3 of a terrorist cell are fanatics and 1/3 are mercenaries who care only about themselves. But among the fanatics there’s always at least one who loves his or her child more than his or her cause. And there’s always at least one rogue government employee among the terrorists.

  16. Also, one of the terrorists is usually the mummy Imhotep. Fortunatly these Mohammedians (or Osirians or whatever) prefer nuclear attacks to plagues of locusts and flies.

  17. It doesn’t help matters that most counter-terrorism personnel are more interested in turf wars and office politics than actually catching terrorists. If people would just be nice to me and let me do my job without yelling at me I could catch more terrorists. It’s not fault that they need me to fix their mistakes. And when I try to offer personal advice and emotional support they act all surprised.

    Honestly, my co-workers have so many issues that I frequently wonder if I’m the only normal person at CTU!

  18. I feel you Chloe – why, if my son hadn’t smoked pot and immediately engaged in a bisexual threesome (which, as I understand, is a common reaction to the pot), a great deal of trouble could have been averted.

  19. You think you guys have it bad? I died of a deadly virus because wimply liberals in Congress wouldn’t authorize enough funds for hazmat suits!

  20. Not to mention that I was tortured by the government when I refused to disclose information on a highly compartmentalized undercover operation!

  21. Jeez, if you guys had just called me I would have hand-to-hand fought with whoever needed to be dealt with. And Gael, just be happy my dad wasn’t the interrogator.

  22. It’s amazing how sanguine some folks are about the Patriot Act. The act says nothing about mandating angels in the executive branch. Remember Nixon? Clinton and the FBI files? Who can doubt that the terrible powers granted to government in the act will be used to someday to thwart and punish dissent?

    Do what you can. Our liberty and that of our children may well depend on our contacting our representatives in congress and telling them to let the provisions that are set to expire, do so.

    http://www.visi.com/juan/congress/

    If we won’t fight for our liberty, who will?

  23. Hell yeah, Rick! How about COINTELPRO? Shit, all that stuff would have been LEGAL if it was done today. Asscrack or Gonzales would just have to claim they were investigating “suspected terrorists,” and they’d be in like Flynn.

  24. Good point Kevin. And it’s great to see you posting at H&R! Seems you were gone for a while.

  25. The first obligation of any state or government is to maintain its position of power and authority; the safety of its citizens or subjects will always come second (or third or fourth etc.) Leastways, that’s always been the case as far as I can tell. No matter how many in this country were to die in a terrorist attack you can rest assured that our “fearless leaders” (some of them anyway) would survive. Remember one thing: government power seldom shrinks or is relinquished once gained. Remember one more thing: the government ain’t yo’ friend.

  26. John: Well Lowdog sit on your ass and treat terrorists like common buglers and wait and see what happens. Then, when we have another 9-11 or worse,

    Anybody remember when John “Phantoms of Lost Liberty” Ashcroft testified before Congress that nothing in the U SAP T RIOT Act would have prevented 9/11? I didn’t think so.

    see how many civil rights we have then.

    Yes, we must destroy freedon in order to preserve it. Bravo.

Please to post comments

Comments are closed.