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Tuesday, May 11, 2004
Looking into the Patriot Act

By Steven Taylor @ 12:20 pm

Pejman notes the following WSJ piece on the USA Patriot Act by Michael Mukasey, chief judge of the U.S. District Court, Southern District of New York.

Judge Mukasey notes what I have long-thought, that the very name of the law is part of the problem (I have long maintained that it is “creepy"):

I think one would have to concede that the USA Patriot Act has an awkward, even Orwellian, name, which is one of those Washington acronyms derived by calling the law “Uniting and Strengthening America by Providing Appropriate Tools Required to Interrupt and Obstruct Terrorism.” You get the impression they started with the acronym first, and then offered a $50 savings bond to whoever could come up with a name to fit. Without offering my view on any case or controversy, current or future, I think that that awkward name may very well be the worst thing about the statute.

Indeed.

In regards to what the Act does, there is an interesting note on the wire-taps, which I was aware of:

I think most people would have been surprised and somewhat dismayed to learn that before the Patriot Act was passed, an FBI agent could apply to a court for a roving wiretap if a drug dealer switched cell phones, as they often do, but not if an identified agent of a foreign terrorist organization did; and could apply for a wiretap to investigate illegal sports betting, but not to investigate a potentially catastrophic computer hacking attack, the killing of U.S. nationals abroad, or the giving of material support to a terrorist organization. Violations like those simply were not on the list of offenses for which wiretaps could be authorized.
As well as the now-infamous “Wall":
Well, there is one documented incident involving an FBI intelligence agent on the West Coast who was trying to find two men on a watch list who he realized had entered the country. He tried to get help from the criminal investigative side of the FBI, but headquarters intervened and said that was not allowed. That happened in August 2001. The two men he was looking for were named Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on Sept. 11, they were at the controls of the airplane that struck the Pentagon. This provision of the statute, permitting information sharing, could not pass Congress without an agreement that it would sunset on Dec. 31, 2005, and so unless that provision is changed, come Jan. 1, 2006, we will be back to the rules that prevailed in August 2001.

And on the “Sneak and Peak” Warrants that I was only semi-aware:

The statute also codifies the procedure for issuing and executing what are called “sneak and peek” warrants that allow agents, with court authorization, to enter premises, examine what is there and then leave. These warrants had been issued by courts before the Patriot Act was passed, including my own court-although I have never issued one myself-on the fairly simple logic that if it is reasonable under the Fourth Amendment to enter premises and seize things, it should also be reasonable to enter premises and not seize things. The statute permits agents to delay disclosure of their presence to the person who controls the premises, again with court authorization. Here too, the logic seems obvious: If you leave behind a note saying “Good afternoon, Mr. bin Laden, we were here,” that might betray the existence of an investigation and cause the subjects to flee or destroy evidence. There are analogous provisions that were in existence long before the Patriot Act permitting a delay in notifying people who are overheard on wiretaps, and for the same reason.
And about the much-feared library-record subpoenas:
What about the section the librarians were so concerned about, Section 215? Well, it bears some mention that the word library appears nowhere in that section. What the section does authorize is the issuance of subpoenas for tangible things, including business records, but only upon approval by the Foreign Intelligence Surveillance Court. Such a subpoena can direct everyone, including the record keeper, not to disclose the subpoena to anyone, including to the person whose records were obtained. That section also specifically forbids investigation of a citizen or a lawful alien solely on the basis of activity protected by the First Amendment. It requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period.

Let me hasten to add that it is not impossible to imagine how library records might prove highly relevant, as they did in one case, very much pre-9/11-the case of the “Unabomber,” Ted Kaczynski. Some of you may recall that Kaczynski was apprehended soon after a newspaper agreed to publish his manifesto, and was caught based principally on a tip from his brother, who read the manifesto, and recognized the rhetoric. But one of the ways that tip was proved accurate was through examination of library records, which disclosed that the three arcane books cited in the manifesto had been checked out to Ted Kaczynski from a local library-a devastating bit of corroborative circumstantial evidence.

Indeed, while I have been open to the idea that there is something wrong with the Patriot Act, I have yet to be given information that would persuade me of its evils. Rather, I have noted that many people take whatever they don’t like about the War on Terror (such as the prison camps in Guantanamo or the holding of Jose Padilla) as being a result of the Patriot Act. I had a mini-argument with a student in one of my classes about how are rights are being taken away because of the Patriot Act, and when I asked what specifically was concerning her, she cited Guantanamo-and that was it.

As the sub-title of the column note: “Before attacking the Patriot Act, try reading it.

Filed under: War on Terror

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