Wednesday, May 25, 2005

Patriot Act

Someone wanted to talk about the Patriot Act.

As you may recall we were running scared when the law was enacted. We had just experienced a horribly successful terrorist attack. At the time we didn't know how many more might be coming. John Ashcroft certainly believed other attacks were coming. It was politically unpalatable to do nothing even if we didn't have a clue about what would be effective or not. We had no good plan. We didn't know the strength or weakness of the attackers. We didn’t know how many different attacking groups there might be. So we guessed. We cobbled together a bunch of measures from the intelligence and law enforcement wishlist with little regard for potential abuse or unintended consequences.

Now, of course, we have a better understanding of the threat as well as some experience under the provisions of the act. It turns out the Osama bin Ladin group were the only major players in the attack and there were no other players waiting in the wings. The anthrax attack is still a mystery but there has been no recurrence, only hoaxes. The perpetrator has been accidentally inhibited or no longer has the wherewithal to launch another attack. We may never know if he was a part of the OBL organization. But Ashcroft's fear of a series of attacks has proven to be typically overblown.

Those in favor of the act argue that the changes were incremental, not revolutionary. Such things as libary peeking were already allowed for grand juries. In some cases, government conduct came under regulation where previously there was no regulation whatsoever on the conduct. In support of their position they point out that the delayed-notification search warrants have been used 108 times resulting in the seizure of material 45 times. And there has been no evidence discovered yet of abuse under the act. There has been no need to invoke the libary peeking provision of the act.

Those on the other side point out that simple exercise of first amendment rights can be sufficient cause to bring you under surveillance. There is even less protection for those who are not native-born. They argue that even a grand jury was under the supervision of the court system if it where to authorize library peeking. In many of the cases where libraries and other entities voluntarily turned over information, the mere threat of invoking the act was sufficient to motivate the party. It seems to me that this is simply a form of abuse that can be denied. Law enforcement no longer needs probable cause to gain access to personal information. Where the delayed-notification warrants have been used, it was in the investigation of non-terrorist wrongdoing. The detractors point out that there is a bit of disconnect in saying that the changes were small and incremental and in saying that the changes have been highly effective. It's hard to believe that both aspects are objectively true. In any case the secrecy permitted by the act makes it very difficult to assess the actual effectiveness of the act. They also point out that the FISA powers may have expanded way too much. FISA cases were over-reaching before PATRIOT and under PATRIOT roving surveillance loosen the restrictions even further. Fishing expeditions are now possible (and probable). Perpetrators of violence get slapped with an additional crime of domestic terrorism if it can be shown that they hoped to influence government policy with the violence.

Part of PATRIOT has been ruled unconstitutional. It made a crime out of talking with terrorist groups regardless of the content of the talk. If you advised them to renounce terrorism and seek their goals by nonviolent means you were in violation of the act. Another feature of the act even prevented reporting about the constitutional challenge until the case was decided. A second part of PATRIOT was also ruled unconstitutional. NSL’s presented to ISP’s to get everything on a person without telling the person was ruled to be a prior restraint on speech. I have my suspicions whether the prior restraint argument is going to hold up.

Before PATRIOT, FISA only rejected 4 of 14,000 warrants. Many of those warrants were based on allegations that proved false. The bar for getting a FISA warrant is now much less. There will be even more warrants issued on false allegations. The NSL’s have been used a lot (At least a 5 page list).

My first conclusion is that in high stakes poker and national security it's dangerous to be a chicken. There's no way that running from inflated fears makes for good law. We have seen how a law for fighting terror allows itself to be used for fighting more ordinary crime. Maybe we have it backwards in that we need to have better laws for fighting ordinary crime and these will cover the terror problem as well. There is just not enough accountability for it to be good law. I suspect we will eventually be up in arms about abuses that have already happened but are still being kept under wraps. We’ll never hear about them until DOJ prosecutes. And almost by definition if DOJ doesn’t prosecute, they have abused their powers.

I think our country would be better served if we pierced the secrecy of actions taken under the act is such a way that the effectiveness and weaknesses of the act can be judged. We need to allow the act to die and put a law in place that avoids running afoul of the first and fifth amendments. I wonder if Ashcroft was replaced partially because PATRIOT was his baby. The act is going to get hammered by Congress, especialy if abuses show up when the veil of secrecy is lifted to them. With John gone the current Attorney-General is insulated from potential PATRIOT blowback.

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