The Patriot Act Under Fire

Wall Street Journal ^ | December 9, 2003 | ERIC POSNER and JOHN YOO

[OESY]

The Patriot Act has become a magnet for claims that the government is violating our individual rights. Yesterday, the federal commission investigating the Sept. 11 attacks heard testimony from several prominent law professors on the dangers of the Act. Last month, Al Gore called for the Act's repeal, accused the Bush administration of suspending civil liberties, and claimed that the government was using "fear as a political tool to consolidate its power and to escape any accountability for its use." Democratic front-runner Howard Dean has called the Act "morally wrong," "shameful," and "unconstitutional." Many cities have refused to assist the federal government in its implementation.

[Byron_the_Aussie]

[VasilyZaitsev]

When anti-gun, anti-RKBA, big-government liberals such as Feinstein and Biden support the so-called Patriot Act, then we know that our freedoms are in danger.

[steve-b]

History shows that new security policies usually last only as long as the war or emergency. The president and Congress usually voluntarily give up their emergency powers; when they do not, courts step in.

Yep, that's why (for example) income tax withholding did not survive the emergency (World War Two) that provided the impetus for its adoption.

[templar]

Yep, that's why (for example) income tax withholding did not survive the emergency ...

Or the phone tax.

[ravingnutter]

Given that al Qaeda terrorists have used libraries to conduct research and to communicate, and that their activities can be traced through credit-card receipts and travel reservations, this expansion of FISA is eminently reasonable.

Testimony from Oct 2003, Senate Judiciary Committee:

As you know, several groups including the ACLU, have claimed that Section 215 of the Patriot Act allows the government to investigate the library habits of ordinary citizens. This misinformation has apparently led a number of librarians to warn patrons needlessly of possible government monitoring. This overreaction has only led to further public confusion and misunderstanding about the scope of the Patriot Act.

The suggestion that federal agents are snooping on innocent citizens’ reading habits is inflammatory and simply untrue. First, the Patriot Act explicitly protects Americans’ First Amendment rights by providing that an investigation may not be conducted “of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” Second, terrorism investigators have no interest in the reading habits of ordinary Americans. As the Attorney General pointed out recently, as of September 18, 2003, this provision had never been used. The House Judiciary Committee also concluded in its October 17, 2002, press release that its “review of classified information related to FISA orders for tangible records, such as library records, has not given rise to any concern that the [government’s] authority is being misused or abused.”

But historically, terrorists and spies have used libraries to plan and carry out activities that threaten our national security. For example, Brian Patrick Regan, who was convicted last February of offering to sell U.S. intelligence information to Iraq and China, used a computer at a local public library to look up addresses for Iraqi and Libyan embassies overseas. Similarly, in a recent domestic terrorism criminal case, a grand jury served a subpoena on a bookseller to obtain records showing that a suspect had bought a book giving instructions on how to build a particularly unusual detonator that had been used in several bombings. This was important evidence identifying the suspect as the bomber. We should not allow libraries or any other businesses to become safe havens for terrorist planning, financing, or communication. The Patriot Act ensures that business records can be obtained in a national security investigation with the approval of a federal judge. Under the Patriot Act, the government can now ask a federal court to order production of the same type of records available through grand jury subpoenas, but only after the government shows that the records are sought for an authorized foreign intelligence investigation or to protect against international terrorism or clandestine intelligence activities. Moreover, Congress also exercises careful and ongoing oversight: Every six months, the Attorney General must “fully inform” Congress of how Section 215 has been used.

Testimony of Christopher Wray, Chief of the Criminal Division United States Department of Justice

On FISA (from same website):

Critics have also attacked Section 218 of the Act, which allows the use of surveillance under FISA whenever a significant purpose of the investigation is foreign intelligence collection. Critics have suggested that pursuant to Section 218, the FBI may now conduct a secret search or secretly record telephone conversations without a showing of probable cause. This characterization of the Act is misleading.

Section 218 was passed to ensure an integrated investigation of terrorist activity by intelligence and law enforcement agents. As I described earlier, before the Patriot Act, a perceived “wall” inhibited information sharing and coordination between the two groups. Intelligence investigators were afraid that consultation with law enforcement investigators would mean that they would be unable to obtain or continue intelligence-related surveillance. Section 218 recognizes the need for, and legality of, full coordination between the two groups by permitting the use of FISA whenever foreign intelligence is a “significant purpose” of a national security investigation. And Section 504 of the Patriot Act specifically permits intelligence investigators to consult with federal law enforcement officers to coordinate efforts to investigate or to protect against threats from foreign powers and their agents.

As with other Patriot Act provisions, safeguards exist to ensure that Section 218 is not abused, most notably the fact that a surveillance or search under FISA can be ordered only if the government demonstrates, to the satisfaction of a federal court, that there is probable cause to believe that the target is a foreign power or an agent of a foreign power. Last November, the Foreign Intelligence Surveillance Court of Review upheld the constitutionality of Section 218 and the Department’s procedures implementing it. The court held that “FISA as amended is constitutional because the surveillances it authorizes are reasonable.”

In general:

The various misconceptions that have been perpetuated about the Patriot Act are disturbing and simply wrong. The Department is very aware of its responsibility to protect civil rights while protecting the country from future terrorist attacks, and we want to ensure that the American people understand the safeguards embedded in the Patriot Act. As you know, the Attorney General and the U.S. Attorneys have spoken about these concerns recently in communities across the country, and the Department has set up a Web site to address the issue as well. We encourage the members of the Committee and all Americans to review the site, lifeandliberty.gov, to learn more about how the Patriot Act protects our nation’s security while protecting the personal liberties we so dearly cherish.[My note: So do I, knowledge is power.]

[Atlas Sneezed]

Here is a sober, conservative, liberty-oriented view of the Act.

http://federalist.com/papers/03-41_paper.asp

[Joe Brower]

"When anti-gun, anti-RKBA, big-government liberals such as Feinstein and Biden support the so-called Patriot Act, then we know that our freedoms are in danger."

Bingo. Travis McGee has mused aloud about what would befall freedom-loving Americans if and when President Hillary Clinton and A.G. Chuck Schumer were to excercise the powers granted to executive branch under PATRIOT act.

Terror reigns when madness wears the crown.

[El Gato]

If the Patriot Act doesn't change anything regarding new governmental powers, why did it need to be passed? If the intent of the language change regarding the foreign intellegence court was only to allow sharing of the information with prosecutors, why not just state that information obtained could be so used, rather than dilluting the justification, (i.e. primary purpose) allowed for the surveillence in the first place?

[Travis McGee]

Just wait until we find out that A.G. Schumer has (secretly) redifined "domestic terrorist."

See you in hte camps. (Not.)

[Travis McGee]

(From your linked article at The Federalist.)

Areas of Popular Concern

A. Domestic Terrorism Defined

In principle, objections to the expansion of federal authority under the Patriot Act are not without merit. Indeed, as James Madison told Virginia's ratifying convention during its consideration of the present U.S. Constitution, "There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."

The greatest potential problem posed by the Patriot Act is also the most obvious: How does the Patriot Act define terrorism, and who is the arbiter of this judgment? It is almost universally agreed that the federal government must take responsibility for preventing and prosecuting acts of domestic terrorism, but the definition of "domestic terrorism" is the key. If defined too broadly, domestic terrorism could encompass crimes previously prosecuted under the protection of the civil rights guaranteed to any citizen. If what was formerly a criminal prosecution is now defined as terrorism, the civil rights of a citizen, as discussed above, are subject to curtailment.

On the other hand, if domestic terrorism is defined too narrowly, terrorist operatives could potentially slip through loopholes where their activities could only be investigated under the restraints of a criminal procedures code. Out of concern for civil rights, a terrorist act far deadlier than those of September 11, 2001 could occur if the Patriot Act misses the mark in its definition of domestic terrorism.

Section 802 of the Patriot Act, "Definition of Domestic Terrorism," reads:

"[T]he term `domestic terrorism' means activities that--

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended-- (i) to intimidate or coerce a civilian population; ... (ii) to influence the policy of a government by intimidation or coercion; or ... (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States."

[Jim Cane]

"[T]he term `domestic terrorism' means activities that--

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

Ahhhhh, ahhhhhhhhhhhhh, helllllp, I see people speeding in cars while putting on makeup every day. I'm surrounded by terrorists. Womin' ones at that! Heeeeelp! Save me John Aschcroft for I am a man with no penis. Protect me from dangerous to life, criminal law violating women terrorists.

*resume hysteria*

[SCDogPapa]

If the Act marginally reduces peacetime liberties, this is a reasonable price to pay

BUT,,we can't be sure it will stop at that. Give em an inch,,,,you know the rest. I can't see giving up any more of our Liberties!! We have lost too much already!