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May 24, 2004

Talking Sense on the Patriot Act

In what may be a hopeless quest, Jeff Jacoby tries to inject a little sanity into the Patriot Act controversy:

Take Section 215 of the Patriot Act, one of the law's most controversial. It allows investigators to obtain records and other "tangible things" in the course of a terrorism investigation. This, the ACLU informs us, means that "the FBI could spy on a person because they don't like the books she reads, or because they don't like the web sites she visits. They could spy on her because she wrote a letter to the editor that criticized government policy."
There's just one problem with that scenario: It isn't true.
To begin with, the FBI cannot request any documents or records without first getting judicial permission. That permission must come in the form of an order from the Foreign Intelligence Surveillance Court -- a federal court specializing in counterterrorism and international intelligence that was created by Congress during the Carter administration. No judge on that court is going to authorize government agents to spy on a citizen merely because of his reading or web-surfing habits. Why not? Because the law forbids it. Which law? Why, the Patriot Act.
"An investigation conducted under this section," Section 215 commands, "shall . . . not be conducted of a United States person solely upon the basis of activities protected by the First Amendment." In case that isn't clear enough, Section 215 says it twice. And for added protection, it directs the attorney general to tell Congress every six months exactly how many court orders have been requested, and how many of those requests have been granted.

- Cassandra

May 24, 2004 at 08:00 AM | Permalink


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At a debate I attended last year on this subject, the Federal Attorney kept talking about the judicial oversight, and the ACLU attorney kept admitting it was true. The only argument the ACLU attorney had was that the oversight review was a pretty low standard. But he also admitted that the standard was a standard approved in organized crime investigations at least by one Federal Circuit Court of Appeals -- in other words, the language of the act was an adoption of (admittedly government friendlier) Fed appeals court decisions on search and seizure law in areas where no federal statute controlled and the Courts had filled in the blanks.

The proper use of the Patriot Act no longer concerns. The misuse of it, or the misuse of the enemy combatant standards (which Congress has still yet to speak on) concerns me more.

Posted by: KJ at May 24, 2004 12:31:00 PM

I think Congress needs to do their job. What aggravates me is when they can't be bothered to give the issue the attention it deserves and then they go around bad-mouthing an act they voted for. Why do we want to cut terrorists more slack than organized crime? I don't get it. If the Patriot Act is so draconian, why the heck did they vote for it?

The answer is that it's not, and they are just mugging for the cameras.

And the status of detainees is a separate issue. I haven't read up on this, but from the little I have read there is a real issue of whether you consider terrorists or detainees not in uniform to be enemy combatants. Not that they should have no rights, but you know as well as I do that if a law is written to protect specific parties and they don't fit the legal description of the protected class, they're usually SOL.

If Congress wants that changed, the proper remedy is for them to leg-is-late (what a concept) a new law into being. Maybe they could even get John Kerry to show up for the vote and actually earn his paycheck. Until that point, the Executive branch is going to interpret the law in a way that gives max protection to national security interests - this isn't exactly a shocker.

You might find this of interest:


Posted by: Cassandra at May 24, 2004 2:48:56 PM

There has been a debate in the office: What if the Patriot Act falls into the wrong hands (some people here think John Ashcroft is the ANTICHRIST). I merely pointed out to them that William & Hillary Clinton would have broken every aspect of the Patriot Act in their 8 years of office. When they howled for proof, I merely reached inside my desk for the ream of proof I always have handy.

There is one big difference between Bush and Clinton: Bush is trying to save this country, Clinton was trying to destroy it.

Posted by: Purple Raider at May 24, 2004 8:37:14 PM