The Real Reason the PATRIOT Act Is Unnecessary

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Here are the three "modifications" that convinced four Republican senators who had opposed reauthorization of the PATRIOT Act in its current form to cave:

1. National security letters, administrative subpoenas that do not require judicial approval, could no longer be served on libraries, even those that offer Internet access, unless they are themselves ISPs. (NSLs are ostensibly limited to credit, financial, and communications records.)

2. People receiving NSLs would not have to tell the FBI the names of their lawyers (a requirement included in the reauthorization legislation Congress almost passed last year).

3. Recipients of Section 215 subpoenas–which are approved by the secret Foreign Intelligence Surveillance Court based on a minimal showing of "relevance," cover a broader range of records than NSLs ("any tangible thing"), and are accompanied by gag orders–could seek permission to talk about the subpoenas after waiting a year.

Pretty lame. (The Washington Post, by the way, has a much clearer account of the deal than either The Washington Times or The New York Times, both of which left me scratching my head.) But as Sen. Russell Feingold (D-Wis.) suggested when the National Secret Agency's warrantless wiretap program was first revealed, the squabbling over the PATRIOT Act seems less important now that we know President Bush reserves the right to do pretty much anything he considers appropriate to fight terrorism, regardless of what the law says. If he thinks he has the authority to secretly disregard the Foreign Intelligence Surveillance Act's restrictions on wiretaps, why should we believe that his administration is punctiliously following the legal requirements for seizing records or conducting physical searches?

In a CBS News interview last month, Bob Schieffer asked Bush, "Do you believe there's anything a president cannot do if he…considers it necessary in an emergency like this?" Bush said "there are clear red lines" and offered two examples:

1. "I don't think a president could…order torture." (If so, it's not clear why he used a bill signing statement to signal that he won't necessarily obey the congressional ban on torture.)

2. "I don't think a president can order the assassination of a leader of another country with which we're not at war."

A good follow-up question would have been, "Is that it?" Because if that's an exhaustive list, why even bother with the PATRIOT Act?

NEXT: You've Come a Long Way, Buddy

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  1. Can the gag order on not telling anyone about the tap be constitutional under the first amendment? I know judges issue gag orders but, is there precedent in a statute for private citizens/companies (as opposed to employees of the CIA, NSA, etc.)?

  2. calling claire wolfe. I’m just saying…

  3. Ultimately Congress knows that they will be held responsible if there is another 9-11. For that reason, while they love to grandstand about the Patriot Act, they are loath to repeal it because they are more worried about another 9-11 than they are about the Patriot Act, especially if they can grandstand and make political hay about it without having to pay much of a price. Repeal the Patriot Act and see how many people who voted for repeal are still in office if there is ever another 9-11. Of course if there ever is another 9-11 or worse, the public will demand the government ensure their safety and the borders will be sealed, and there will be a new Patriot Act which will show how tame the current one really is. At that point, we will find out what it really means to loose our civil liberties. It sure would be nice if there is not another 9-11 and we don’t have to face the prospect of a panicked public demanding the government do something. God knows we wouldn’t want to give an inch on civil liberties now to avoid the risk loosing the whole mile later.

  4. Ultimately Congress knows that they will be held responsible if there is another 9-11.

    See, I thought we’d hold the attackers, their accomplices, and their sponsors responsible.

    John, I know you’re a lawyer, and I know a lawyer’s job in America is to find somebody else to blame so that those who do wrong don’t have to take responsibility, but, come on!

  5. Our liberties and our freedom should not be dependent on whether we happen to endure another terrorist attack. Incidentally–and I’ve said this repeatedly–whether we beef up our security or not, we remain incredibly vulnerable to attack. There are already terrorists here, and I’m sure there are plenty we don’t know about. And is there any question that they could get their hands on weapons and get access to some vulnerable strategic site? Of course not. I used to be amazed that we hadn’t suffered a major Arab terrorist attack before 9/11.

    I’m not suggesting that we stop trying to prevent attacks or trying to catch these guys, I’m just saying that the USA Patriot Act, the wiretapping, and all the other stuff isn’t going to protect us from all dangers. And if the public would go ballistic with the next attack and demand martial law, then what are we waiting for? Might as well become Singapore now.

  6. i never new Feinstein and Durbin were republicans

  7. Thoreau,

    Of course the people who do the murder are responsible, but ultimately the government that fails to stop them will be held accountable as well. Not in the same way the terrorists will be, i.e. we won’t be shooting anyone in Congress, but they will be held accountable by loosing their jobs; a prospect that is no doubt comparable to death for some of them. Your response is very literal and pedantic, which is frankly quite unlike you.

    Like or not, if the government cannot protect the security of its citizens it will be replaced by one that can. If you think that we will have anything approaching the civil liberties we have now in the aftermath of another major terrorist attack, you are kidding yourself. The question is how we best keep another terrorist attack from happening. Doing that does more to protect civil liberties than anything else.

  8. John-

    See, I understand what you meant, but I’m sick of the whole “It’s all James Madison’s fault!” mentality about terrorism.

  9. Not to mention this late story…looks like now you’ll have to sign a logbook and go behind the counter just to get a pack of Sudafed or Nyquil..geez, can someone tell me WHAT this has to do with National Security?

    Whole story here

  10. If I had realized that protecting civil liberties would lead to the deaths of 3000 people, the destruction of 4 air planes, the collapse of two tall buildings, and a giant chunk taken out of the nation’s #1 military base, I never would have proposed the Bill of Rights.

    My bad. You have to understand, I secretly converted to Islam, and an Imam told me that I should do whatever it takes to weaken the American government.

  11. Uhhh, you want the REAL reason?

    Because the passengers on board airliners now automatically wrestle any possible terrorists to the deck (ground)?

    They all know that depending on government’s efforts at security will get them killed anyway, may as well go down whilst fighting.

    The patriots act, instead of the Patriot Act. That would be real security!

    Now if only every one of US would realize that none of Bushco inc. “contracting with america” homeland security actually works.

  12. amazingdrx-

    A+

    Thank you. In the olden times, passengers (and crew) were told to sit quietly, with their hands in their laps, and let the “experts” handle the situation.

    Anybody who stands up in the aisle of a commercial airliner and says, “I am taking control of this plane” is going to have mighty tough sledding.

    98% 0f the money thrown at the TSA has been wasted.

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