The Patriot Act

I made the following comment in my post on Homeland Security:

The Bush Administration used 9/11 to put through a huge reduction in both our freedom and civil liberties. It's way overdone and dangerous.

Hector and Tony Alva want to know exactly what I mean by that.

Here are some examples of what I don't like in the so called "Patriot" Act:

The government no longer has to show evidence that the subjects of search orders are an "agent of a foreign power," a requirement that previously protected Americans against abuse of this authority.

The FBI does not even have to show a reasonable suspicion that the records are related to criminal activity, much less the requirement for "probable cause" that is listed in the Fourth Amendment to the Constitution. All the government needs to do is make the broad assertion that the request is related to an ongoing terrorism or foreign intelligence investigation.

Judicial oversight of these new powers is essentially non-existent. The government must only certify to a judge - with no need for evidence or proof - that such a search meets the statute's broad criteria, and the judge does not even have the authority to reject the application.

Surveillance orders can be based in part on a person's First Amendment activities, such as the books they read, the Web sites they visit, or a letter to the editor they have written.

A person or organization forced to turn over records is prohibited from disclosing the search to anyone. As a result of this gag order, the subjects of surveillance never even find out that their personal records have been examined by the government. That undercuts an important check and balance on this power: the ability of individuals to challenge illegitimate searches.

And here are some more things I don't like:

The "Patriot" Act puts the CIA back in business of spying on Americans. The Patriot Act gives the Director of Central Intelligence the power to identify domestic intelligence requirements. That opens the door to the same abuses that took place in the 1970s and before, when the CIA engaged in widespread spying on protest groups and other Americans.

The "Patriot" Act creates a new crime of "domestic terrorism." The Patriot Act transforms protesters into terrorists if they engage in conduct that "involves acts dangerous to human life" to "influence the policy of a government by intimidation or coercion." How long will it be before an ambitious or politically motivated prosecutor uses the statute to charge members of controversial activist groups like Operation Rescue or Greenpeace with terrorism? Under the Patriot Act, providing lodging or assistance to such "terrorists" exposes a person to surveillance or prosecution. Furthermore, the law gives the attorney general and the secretary of state the power to detain or deport any non-citizen who belongs to or donates money to one of these broadly defined "domestic terrorist" groups.

The "Patriot" Act allows for the indefinite detention of non-citizens. The Patriot Act gives the attorney general unprecedented new power to determine the fate of immigrants. The attorney general can order detention based on a certification that he or she has "reasonable grounds to believe" a non-citizen endangers national security. Worse, if the foreigner does not have a country that will accept them, they can be detained indefinitely without trial.

I hope that helps.

Comments

[hey]

i see no problem in going after greenpeace (if it does engage in dangerous activities as a protest) for terrorism...

ELF and ALF are domestic terrorist groups, and are very close to greenpeace activities

if greenpeace does a bannering of a nuke site (a typical greenpeace tactic) they should be treated like terrorists, as we can't give any unauthorized entrants to nuke or military sites the benefit of the doubt. same goes for protestors at military sites.

as you may or may not have noticed, we are fighting a global guerilla war against enemies who have demonstrated their ability and intent of launching attacks from and on our country.

you may want to deny the existence and need to fight this war, but others won't.

and for strongly libertarian analysis of exactly what the patriot act is and isn't, see the volokh conspiracy at www.volokh.com run by a number of libertarian law professors who frequently take a precise look at what the patriot act is doing (they don't like it, but they also show how its opponents are frequently overwrought and incorrect in their criticisims and claims of it being used)

[jim]

"Circulus in demonstrando".

So, Hey, isn't this term 'terrorism' if you apply it to whoever breaks the law for political reasons, then losing its meaning except as a justification for the government to take away our rights?

Specific examples of what the author doesn't like in the PATRIOT Act have been cited. What of those?

[chervokas]

Hey hey-

Bannering a nuke site is an act of terrorism? That's the nuttiest thing I've heard yet. And it illustrates exactly the kind of whacky ideological danger that's at play in the culture today.

To bring this back down to basics here's Webster's definitions of terror in the political sense:

"violence (as bombing) committed by groups in order to intimidate a population or government into granting their demands."

and on terrorism: "the systematic use of terror especially as a means of coercion"

Certainly abortion clinic bombing fits that description (but of course it's already criminal murder, prosecutors don't need new laws to go after those terrorists.)Bannering a nuke site, while it may involve criminal tresspassing that should be prosecuted, is not an act designed to intimidate through violence. This creeping definition of terrorism illustrates perfectly the problem w/ the Patriot Act!

And Fred, you're right on the money about the Patriot Act, like the Alien and Sedition Acts, it is a dark blot on our nation's history of civil liberty for all the reasons you enumerate. You could also add to your list the provisions that limit public access to information through FOIA.

[jackson]

They hate it when you can actually back it up like this, nice work.

[Hector]

hmmm. Nice cut and paste. You cite laws but no examples of the "huge reduction in freedom and civil liberties" rather you cite theoretical reductions at best. Sigh. Regardless, some comments:

- rights for non-citizens. during wartime, what is your specific issue with this?

- classifying as "domestic terrorism" groups like greenpeace that engage in "acts dangerous to human life". what is your specific issue with this?

- the CIA in the domestic spying business is admittedly a risky move but one that nonetheless is mandatory to avoid more 9-11s. Divorcing internal from external intelligence in this era no longer makes sense.

- "A person or organization forced to turn over records is prohibited from disclosing the search to anyone." What is your specific issue with not wanting to alert potential or real terrorists that the feds are on to them? Again, potential for abuse is there but giving terrorists a courtesy notice that the feds are watching is absurd.

- "Surveillance orders can be based in part on a person's First Amendment activities, such as the books they read, the Web sites they visit, or a letter to the editor they have written." If you write a letter to the editor today threatening the President, for example, you can bet the Secret Service will be all over you. If the feds notice you making threatening posts in an internet chat room (a la McVeigh), they should check it out. And if terrorist is stupid enough to check out library books on subjects like "how to make a bomb" then they deserve to be arrested. Keep in mind that during the Cold War students studying the Russian language that subscribed to Pravda got a call or visit from the FBI as a precaution and as far as I know, none of the subscribers were sent to gulags or imprisoned, as they were in the Soviet Union for similar "offenses".

"Judicial oversight of these new powers is essentially non-existent." False. Read the act again.

"The FBI does not even have to show a reasonable suspicion that the records are related to criminal activity, much less the requirement for "probable cause" that is listed in the Fourth Amendment to the Constitution. All the government needs to do is make the broad assertion that the request is related to an ongoing terrorism or foreign intelligence investigation." There is no equivalence between something like 9-11 with an ordinary criminal activity (let's say, murder) in that the state's interests in the former are enormously greater than the leter, the tragedy notwithstanding. If we believe America is about to be attacked and hesitate to pursue a lead to thwart the attack because we fear it might trample on someone's 4th amendment rights, that would be a tragedy and would be seen in hindsight as a massive failure.

"The government no longer has to show evidence that the subjects of search orders are an "agent of a foreign power," a requirement that previously protected Americans against abuse of this authority." That would be because our enemies are not foreign powers in the traditional sense (e.g. USSR, China) but rather loosely affiliated groups of like-minded individuals like Al Qaeda.

As I suspected, your theoretical at best and more of the Democrat hyperbole I've come to expect in this election. Where's the outcry about John Kerry voting for the act and now saying he's against it. WTF?

[Tony Alva]

Appreciate you taking the time to respond to this inquiry, but I don't see where you detail any instances where you YOURSELF have personally experienced these unwarranted searches, had surveillance performed on you, been detained as a non-citizen, or had your records rifled through by The Man. I won't repost Jeff J's position, but most in the center are of the mind that desperate times call for desperate measures and are willing to concede. Most centrist feel that if we must employ these tactics to thwart another 9/11, then that's what we'll have to do. Chervokas is wrong about making light of a trespass on a nuke site. It is a serious breach and ought to be cause for serious concern no matter who the perp is.

I really think that all the hype about civil liberties erosion due to the patriot act is no different than the over reaction that the gun nuts are prone to when somebody proposes some kind of legislation requiring background checks, licenses, trigger locks, etc... Their rallying cry is that the sky is falling and the end of gun ownership is near no matter how well the bill is written and how reasonable it may be. I don’t begrudge the ACLU, or you for that matter, for watch dogging and challenging this or any act. I believe its part of the American checks and balances.

Until I see multiple abuses of the patriot act, one perpetrated on John Q. Public and not those lumps down in Gitmo who were caught shooting at American soldiers, I'm inclined to watch and wait before I start crying fascism. Let's ensure proper oversight and expose blatant abuse.

[Jason Chervokas]

Tony, I'm not sure where most in the center stand, I do know where most of the people I know stand. And I did not make light of breaking into a nuke site; but breaking into a nuke site and bannering it is simply not an act of terrorism by definition. It's an act of criminal trespass against which there are already sufficient legal protections. You wanna make the penalties more harsh for trespass at a nuke facility? Fine. But if the gov't wants to start defining tresspass and bannering as terrorism that would be a perfect example of how a creeping use of an ill-defined term turns into an apparatus of state abuse.

Similarly, Hector, we don't need new laws to prosecute groups who engage in acts that endanger human life. We've got all sorts of felony categories that cover that--murder, manslaughter, criminal endangerment, conspiracy, and other laws.

Tony, I've heard others make the argument that one should need to point to personal experiences w/ rights deprivation in order to have problems with the potential deprivations a law might engender. That's a bad argument. I couldn't have been personally deprived of any rights by Jim Crow laws--being a white, northern, grade schooler at the time of the civil rights mov't--but I hope I would have had the sense to argue that they were an abridgement of all our civil rights anyway. Similarly, Madison et al put provisions in the First Amendement about religious and press freedom not because there was ongoing suppression in the US, but because they knew that it had happened when the wrong laws were in place in England. To protect liberty it is essential to fight against the creation of legal structures that could gravely imperil it, hopefully before abuses take place. That's my kind of preventive war to protect democracy.

As to preventing another Sept. 11, let's remember what happened that day. A bunch of guys with box cutters hijacked three planes. The FBI had one of the potential hijackers in custody. The gov't had another two on a watchlist but they weren't caught at the border months before. There was no failure of our legal structure involved. The laws were working. And at least in the case of Mousaui the field agents were working. But there were plenty of failures in execution. That attack could have been prevented. I'm not saying it's a slam dunk that it would have been or should have been. But given the intelligence at the national level and FBI field work, the possibility that it could have been prevented is a realistic one. There was no failure of law and none of the new stuff in the Patriot Act would have changed any of that. The Patriot Act is based on and governed by hypotheticals and hypotheticals only, hypotheticals that were poorly thought through as the bill was rushed through Congress.

Finally, Hector, I thought Kerry and all the Dems who voted for the Patriot Act were wrong. Furthermore I've long critized Kerry's vote on the Iraq use of force issue. As I said at the time--he came back from Vietnam and opposed the war, but when, as a Senator, he had an opportunity to vote on the modern day equivalent of the Gulf of Tonkin resolution (ie, a vote to send troops into harm's way on a trumped up pretense), he voted for it not against it. It was a major failure on his part.

[Tony Alva]

Jason, good post, but the Jim Crow analogy is a huge stretch in comparison and the idea that the law should differentiate between some ballsy Green Peace protester bannering a nuke plant and some terrorist operative disguised as a Green Peace protester doing surveillance on a nuke plant is, well, tough to differentiate. That is exactly why in this instance the act will make law enforcements job a little easier. The act doesn't make the act of bannering more restrictive, It simply sets a limit on where you can banner. Most folks, I believe, are willing to concede this in this day and age and nuke plants, and all other high-risk security targets for that matter, are off limits for this kind of thing. That's what Washington Square Park in DC is for in the interim. If that ends up curtailing some protestors right to free speech, so be it. The constitution will not collapse under the weight. This is exactly why the Patriot Act has not been a relevant campaign issue during this election year and it hasn't been contributed to any real polarization. Most Americans don’t have an issue with it. That’s just my opinion as a non-lawyer American citizen.

I laud the Democrats who had the guts to vote for this act. It shows that there are some amongst them who are willing to grasp the realities of how we can better catch terrorists and prevent attacks. Time will tell if it was all worth it. If it’s nothing but oppressive legislation and it can be demonstrated that John Q. Public is suffering under it, it should be easy to repeal. Until then I guess I’ll just live my unknowingly oppressed life here in the U.S. in ignorant bliss. I still contend that the best way to not have your rights infringed by the “heavy” thumb of this new act is avoid engaging in criminal activity, don't hang out with criminals, and NOT be a terrorist.

[jackson]

So we wait for the potential to become a reality before we do anything about it, right? Doesn't that sound like the opposite of the current pro-invasion crowd's view of things? Weather or not the Patriot Act has been abused yet in not the issue, the issue is that it can, and left intact it will.

[Jason Chervokas]

Tony, I agree with you almost entirely about the bannering and nuke thing, I was reacting on that point principally to the comments of "Hey" which equated bannering w/ terrorism and I think illustrates the social dangers inherent in a lot of what's going on, dangers that concern me greatly.

Simple, non-egregious protections like stiffer penalties for trespassing at sites like that, where we all agree potential dangers exist, seem perfectly reasonable. The problem is how little discussion, scenario planning and concern for civil liberties issue went into the drafting and passage of the Patriot Act. I don't think it's a all unreasonable to say that there are some good things here, some bad things here, and some things that need to be changed, let's just not extend it, let's improve it in ways that address everyone's concerns. But that's the kind of discussion that has been forestalled by the Administration's "my way or the highway" approach to governing.

[double g]

Think about it- a bunch of government workers all hired to work as part of defensive and offensive Intelligence gathering agencies for the U.S.A -fail, underestimate, miscaculate-however you want to state it -they dont do their job-
and the rest of us have to step several rungs down on the civil liberties ladder-
Conscious effort or residual effect-
No longer should be considered "conspiracy theories"- Call it Manipulation plain and simple