June 03, 2004
A Measured Analysis of Abuses under the Patriot Act
The Patriot Act is becoming a major issue of dispute not only between President Bush and his liberal critics, but between Bush and those in the Republican Party with more libertarian leanings. As a libertarian and a supporter of the ACLU, I tend to oppose any expansion of government power that reduces the warrant or probable cause requirements for criminal investigations. While I have often heard about the dangerousness of the Patriot Act and have repeatedly said that I support the repeal of the sections that decrease Fourth Amendment protections, I admit that I did not actually know of any specific examples of abuse under that Act.
After spending a significant amount of time searching allegations of abuse under the Patriot Act as reported by reputable newspapers (thank you google!), I am a bit underwhelmed at the extent of the credible examples of abuses. Of the reported civil liberties abuses under the Patriot Act, almost all of them appear to be cases of law enforcement verbally abusing detainees, something not authorized under the Patriot Act. To blame the Patriot Act for abuse by police is equivalent to blaming criminal law provisions for abuse performed against prisoners in our prison system. The problem is that police do not respect these individuals’ rights to be free from abuse, not that the Patriot Act countenances this abuse.
I was skeptical of the Justice Department report, so I further investigated to see what other reputable sources had to report about Patriot Act misuse. The most credible claims of abuse are that the Patriot Act has been used to punish and capture non-terrorists, something that should surprise those who supported the measure as an anti-terrorism law in the wake of September 11th (this is a New York Times article- I have linked to a different source with the same text because some do not have access to New York Times online). For example, FBI officials in Las Vegas admitted to using the Patriot Act to obtain financial statements in a political corruption investigation. The federal prosecutor later denied using the Patriot Act to obtain phone conversations and other communications in that case, but it appears that they still concede using the Patriot Act to obtain the financial data. Also, a lady was prosecuted under the Patriot Act after she forged a threatening letter while aboard a cruise ship in hopes of making the ship dock so she could return to her boyfriend. She was sentenced to two years in prison, instead of the possible twenty- so this was no great injustice given the inconvenience her actions caused those on board the cruise and the cost to authorities from her hoax. It is odd, however, that she was prosecuted under a supposedly anti-terrorism measure.
Other allegations of Patriot Act applications to non-terrorist activities were less impressive. For example, some argue that the prosecution of Hai Duc Le under the Patriot Act for accidentally exploding a pipe bomb was improper. Yet, Hai Duc Le had a massive amount of explosives that he planned to detonate remotely, so it does not seem out of line to characterize his actions as terrorist. Finally, some critics point to the case of Martin Dwayne Miller, who was charged with the manufacture of nuclear, biological or chemical weapons of mass destruction for making methamphetamines. However, these reports are extremely misleading and disingenuous, as Miller was prosecuted under North Carolina State law and not under the Patriot Act.
Perhaps even more surprising was that, apparently, the government has never actually used the most infamous power under the Patriot Act, to obtain records from libraries under section 215. Given the outcry over this power, one would expect to find at least one credible claim of the government’s use of this power. Perhaps the Justice Department has used section 215 to obtain library records and has just kept the use secret (and then lied when it said that it has declassified the information), but this is an allegation without any substantiation.
While there are some troubling allegations regarding use of the Patriot Act against non-terrorists, I think even a libertarian like myself would have to admit that these do not justify the outcry that the Patriot Act has already destroyed our civil liberties. These abuses should certainly be opposed and exposed, but I will admit I expected to find far worse- mainly because the anti-Patriot Act rhetoric has been so sweeping.
The best way to sum up my opinion of the Patriot Act after doing this research was stated by Georgia Republican Bob Barr, "I don't care if there were no examples so far. We can't say we'll let government have these unconstitutional powers in the Patriot Act because they will never use them.” The government seems to have done a decent job of showing that it has not used its power under dangerous sections like 215, but what is interesting is that they are not denying that the Patriot Act does give them the expanded power to obtain library records and the like. Freedom-loving people know that provisions that enhance the government’s power do not lie dormant for long. Perhaps the Patriot Act has not led to the wide-spread violations of civil liberties that groups like the ACLU have implied, but I think there is just as much reason to repeal the provision of the act that would allow for such abuses before constitutional violations start occurring.
Posted by Misha Tseytlin at June 3, 2004 11:09 PMA level-headed response, Misha.
You’re right that most of the people decrying the Patriot Act have no idea what it actally contains but have some amorphous notion, stoked by leftist and even far-right rhetoric, that it abolishes the Bill of Rights and establishes Nazi Germany. Remember that the Act came about by open debate and passage by our representative bodies (not executive fiat) and that the most controversial parts of the Act (like the library-record provision) still require findings of cause and a court order. I’d be for repealing parts of it as well, but after the terrorist threat subsides somewhat.
Posted by: Martin at June 4, 2004 01:05 AMA timely and excellently treated subject in my opinion, Misha. It is the potential for abuse that will inevitably become manfifest if corrections are not made, that is so troubling, as opposed to the cited abuses to date.
Much of the Patriot Act is justified and defensible in these times. But, to the extent that its provisions open the door for abuses of rights clearly defined under the Constitution now, or in the future, the Act must be amended. It serves not the American people to protect them from foreign threats without, while opening the door to threats from police powers within.
Posted by: David R. Remer at June 4, 2004 01:11 AMMartin, you may defer your rights under the Constitution until after the threat is over, but, I will not. I learned how the Germans acquiesced to losses of rights and freedoms all in the name of defending the fatherland and we know how that turned out. Our own founding fathers exhort voluminously on this issue warning that freedoms deferred are most likely freedoms lost. It is the nature of governments to protect power, and the Patriot Act grants in a few of its provisions, too much power that can too easily be jusfified in perpetuity since terrorism, having always been with human society, is not likely to disappear in the next couple of generations.
Posted by: David R. Remer at June 4, 2004 01:17 AMDavid, what “freedoms” have you lost as result of the Patriot Act? Please share.
Yes, I for one am willing, at least for the time-being, to forego my right to spend six months at a “boy’s camp” in the mountains of Afghanistan and then come home, enroll in flight school and be ignored by law enforcement officials. It really doesn’t cramp my style that much. If a court finds that I’ve fraternized with suspected terrorists, I guess I’ll just have to live with the order for roving wire-taps ordered by a judge. If I go a step further, and check out weapons-manuals from the library, buy mountains of fertilizer from the local hardware store and spend all my time writing e-mails to Pakistan, I guess I’ll just have to live with the subsequent violations of my sacred right to privacy.
The founding fathers knew that to preserve our rights, a balance has to be struck to ensure our security. The Consitution (and the passage of the Patriot Act was a consistutional process) is not a suicide pact. Not a license for absolute freedom from reasonable limitations—that would be anarchy and freedom for nobody. So again, what freedoms have you personally lost as a result of the Patriot Act?
Posted by: Martin at June 4, 2004 01:45 AMMartin, the freedom I have lost is the security of knowing that my government, or an agent of my government, cannot make me disappear from my family and my life as a result of poor judgement or inadequate evidence. There are a number of David Remer’s in this country, and there is an epidemic of identity thefts taking place.
What if a terrorist stole my identity and perpetrated a terrorist act in my name? Under this unrevised Patriot Act, I could disappear, and have no access to an attorney, my family, or anyone outside the government. Our founding fathers would have revolted if their government tried to implement this kind of King George law.
With as many death row inmates as our justice department has been releasing these past few years, there is ample evidence innocent people are wrongfully incarcerated by this government - and that is WITH lawyers and trials. Think about it, and if you don’t think this is a perilous situation, then, perhaps becoming one of the first U.S. citizens to be mistakenly disappeared, would change your mind.
Posted by: David R. Remer at June 4, 2004 05:30 AMDavid’s right. I’m not too worried about this administration, or the Kerry administration that will follow it next year. It’s the one 15 or 20 years from now that I’m worried about.
I wrote about this topic earlier and listed all the things I thought was wrong with the USA PATRIOT Act in one of the comments. I’ll repost it for fun:
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I saw that argument (lefties are being USAPATRIOT alarmists without having any idea which specific parts they object to) made by someone else in the Republican column, and it may be true. I found the act to be a tough read. :)
But there are plenty of people who have made the effort. Here’s a pretty good site for getting up to speed on the USAPATRIOT Act. It’s got an annotated version of the different changes made to existing legislation (it’s annoying trying to piece together legislation that reads, “in section IIa, the word ‘may’ is replaced with the word ‘will’.), and there’s a really good index of subsequent legislation to amend the act.
Also, here’s what the ACLU thinks. And here is an index of other analyses.
It’s important to note that, despite what some conservatives are saying, the attempts to amend the act are bipartisan; it’s not just a liberal issue.
Personally, I think most of THEUSAPATRIOT Act is Ok (though I think the FBI would be better served by upgrading their equipment, rather than running to Kinko’s every time they need to send an email). The parts I really have a problem with are the parts that everyone else, Democrats and Republicans, have a problem with. We need to:
- tighten up the provisions which allow law enforcement agents to make searches on their own initiative without a court approved warrant
- require agents to have probable cause before getting access an individual’s private records (prevent agents from “going fishing”)
- close loopholes that would allow building a government database of each citizen’s private information
- require the justice dept. to be more transparent to congress on the use of delayed warrant searches
- exempt bookstores and libraries from “rubber stamp” requests for a citizen’s purchase and check-out records (ie - make them subject to the usual court ordered warrants)
Some people have no problem with those invasions of privacy. Some also don’t have much of a problem with the administration seeking to circumvent Constitutional guarantees of freedom.
As I said in the article, I don’t think there’s some sinister plot on the President’s part to create a dictatorship. I think it’s an understandable reaction in the face of something like 9/11, that people would want to exchange their civil liberties for a more protective federal government, and I think the President is sincerely trying to provide that.
Unfortunately, I suspect that the President (and many US citizens) don’t realize what these actions mean for the future of our freedoms.
Dictatorships don’t happen overnight. It’s a slow process of eroded civil rights, helped along by well-meaning people who are willing to trade some freedoms here and there for security.
American Pundit, that is a very often repeated myth. In fact, dictatorships by and large DO happen overnight.
Little incremental changes are just not how it happens. Dictatorships are more like wildfires than glaciers, and almost any totalitarian state of the last century you can name proves this. In fact, if anything has proven to be true, it’s that permitting greater civil liberties during times of national stress is precisely what LEADS to dictatorships. Hitler, Lenin, Ho Chi Minh, the Ayatollah Khomeini could all have been stopped at crucial early points if it weren’t for the namby-pamby weakness govermenets who believed that the best way to deal with these guys was appease and ignore them. We all want to preserve civil rights—an important part of that mission is stopping those amongst us who want to destroy them.
Posted by: Martin at June 4, 2004 11:49 AMHitler did not pop up over night as a dictator, Martin. He is the most notorious and exemplifies the veracity of American Pundit’s comment. Mao came into power rather abruptly, Mussolini did not. Stalin did, and most following him moved up through the ranks. Ho Chi Minh was drafted in by popular demand, Paul Pot came in through abrupt means. So, where in this little world history lesson is evidence of your claim of myth?
Posted by: David R. Remer at June 4, 2004 01:34 PMThe Patriot Act has two main aspects to it:
1) It gives broad authority to law enforcement agencies to gather information (without a warrant).
2) It regulates banking behavior in certain particulars such that it makes more information readily available for investigation (see above), and also requiring certain practices such as more robust disaster preparedness procedures (translating to solid database backups so that a terrorist strike won’t knock a financial institution out of action completely).
Now, liberals on the non-libertarian or anti-libertarian edge of that spectrum, e.g. those who never met a batch of economic regulation they didn’t like, or those who stay awake at night worrying to death simply because a single mother has the firearms capability to defend herself against a rapist intruder into her home, those sorts of people are an easy “sell” for the Patriot Act, because they already put the camel’s nose under the tent and sell out liberty for economic “justice” (as they see it), or for “safety” from the “danger” of law-abiding individuals keeping and bearing arms.
The anti-libertarian liberal end of the foundation for the Patriot Act will see all attempts to bring them into a more libertarian view, as “right wing”, and ironically, their own partisanship becomes their own worst enemy because it entrenches them further and further into an attitude that liberation is “right wing nazi” and restriction is “good and evolved and educated and liberal” and such.
That faction (within a faction) is a lost cause, and I would write them off, I think.
The other end of support for the Patriot Act affords more traction and opportunity. Even the most stalwart of foreign policy hawks in the right wing CAN be led to a conclusion, with reasonable discussion, that an excess of power in the hands of government makes us LESS DISTINCT from our enemies, and as such constitutes a victory FOR said enemies.
For the above reasons, when debating with members of the binary partisan factions of the One Official Party in America, I tend to exercise this debate more patiently and more thoroughly with “Conservatives”. Thinking conservatives, who listen to Bill Bennett on the radio, or watch Dennis Miller on TV, they are accessible to reason, and I think it’s possible to eventually chip away enough of the more egregious line items of the Patriot Act to where that vaunted “potential for abuse” is widely limited, and to where the checks and balances designed by this country’s Founders for government itself, are also in place for legislation to combat terrorism.
I agree with Misha that the most alarming thing in the immediate present is how non-terrorist acts are being lumped in with terrorist. Of all the red flags, that is the reddest and the brightest, and calling for closest attention.
If we can’t immediately shut down the Patriot Act, we can at least amend it to where the more urgently needed safeguards are in place.
Very Good blog. I had been searching for a site like this for some time, but was unable to find one. So I recently started my own. Now I have come across yours.
I will put a link to your blog on mine, as I want people interested in any third parties or independent candidates to be able to find as much info as possible.
James
http://thirdparties.blogspot.com/
Nobody objects to giving police and Feds greater and better powers to go after terrorists.
But it should be limited to that, and the law should not be written without checks and balances for those powers. The rule of law requires that. Power must be given with responsibility and accountability, or else the system will run out of control.
There was recently an accident at a neighbor’s house, where a van came around a turn badly and ran into their fence. One of these fellows loudly protested, “but nobody was killed”. I don’t believe I was the only one to remind them that this particular fact did not mitigate the fact that the van barreling off course could indeed kill somebody.
The USA PATRIOT act, with it’s unconstitutional, overly broad and overly vague powers is a law just ripe for abuse. That few abuses have occured yet should not comfort anybody. Just like a van going off course is deadly regardless of whether it actually kills somebody, the PATRIOT act is a harmful piece of legislation whether or not it’s used fully.
Posted by: Stephen Daugherty at June 4, 2004 06:03 PMWelcome to WatchBlog, James. We look forward to your perspectives and debate on current political events and positions.
Posted by: David R. Remer at June 4, 2004 11:39 PM***OKAY NOW DOES EVERYBODY SEE THE POTENTIALITY OF THE SLIPPERY SLOPE WITHIN THE “SUNSET PROVISIONS”?
NO? Well let me explain ‘em Misha, David, Martin, Y’all.
Okay now after five years all of this comes up for revue by an intelligence commitee(possibly others) at the government level, Buuuut…
BUUUUUT! the history of how the Patriot Act was used to fight terror over that five year period REMAINS CLOSED TO THE COMMITEE and the senate! That means no one other than the FBI and the I.A.O. and other spygroups in these newer post 9-11 intelligence agencies will be privy!
DARPA Network, OAI, and the FBI will only have access to something that our own elected officials can’t even revue!!!!
That’s the slippery slope people our elected officials are refused right to see the application of how this is being used, GOT IT!
Posted by: skunkbud at June 6, 2004 04:05 AM###Welcome to the NEW WORLD ORDER Mr. Orwell###
Posted by: skunkbud at June 6, 2004 04:14 AM“As a libertarian and a supporter of the ACLU.”
Given the ACLU’s wrongheaded stance on the 2nd Amendment, is your support at times tepid?
Posted by: FilthyMcNasty at June 6, 2004 03:30 PMMy support for the ACLU is tepid on many fronts- I do oppose their unwillingnes to protect the right to bear arms and their disregard for the rights of unborn children. In areas like 4th amendment rights (which is what the Patriot Act implicates) I am a strong supporter of them.
Posted by: Misha Tseytlin at June 6, 2004 03:51 PMPrecisely, Skunkbud. Nail on the head. Slippery slope turns to precipice in pretty short order, doesn’t it? Representative government? Not where security is concerned at least under this Republican invention.
Posted by: David R. Remer at June 6, 2004 05:43 PMSlippery slope arguments can be used to support anarchy, because if there is any government at all, it might go out of bounds and become oppressive.
http://www.nizkor.org/features/fallacies/slippery-slope.html
A measured application of leveraging technology to gather life-saving terrorist information real-time, need not be a “Big Brother 1984” scenario, if there are checks and balances as with the governmental structure itself.
Checks and balances have been severely eroded by this one party Government. That is why either Bush has to go or the Senate has to return to the Democrats. Then we have some of the eroded checks and balances returned.
Posted by: David R. Remer at June 7, 2004 02:03 PMUm, David. A one party goverment? Are you thinking of Cuba or China? There are plenty of checks and balances in place, or haven’t you noticed the difficulty the administration has had passing bills or even getting routine judicial appointments through Congress?
Posted by: Martin at June 7, 2004 11:54 PMThank God for the fillibuster. The last resort for men and women of reason and common sense. :)
Martin,
“A one party goverment?”
I think of it as “one party” but not for the same reason David does. I see both Democrats and Republicans as being just two different factions of one overall, umbrella “establishment party”, working for the perpetuation of the status quo, squashing true dissent, derailing the efforts of some to bring about true change, and perpetuate the legacies of the existing aristocracy. They’re both the party of “the rich”, but they get together and play “good cop, bad cop” to hoodwink the public.
AP,
“Thank God for the fillibuster. The last resort for men and women of reason and common sense. :)”
I remember Robert Byrd’s filibuster back in Bush Sr.’s day, where he went on for hours about “My dog Billy”. Bob Dole, in his sense of dry wit and congenial humor, brought out a picture of his own dog and spent a few minutes about it in “rebuttal”, LOL. I was thinking, “we’re paying these guys to talk about DOGS fer chrissake!” But yes, the purpose of the charade was to kill a bill that Byrd and his supporters thought of as particularly bad for their share of the pork.
Martin, if you hadn’t noticed, the majority of both houses is Republican, and the paliamentary rules have been changed by the Republicans to favor their majority. Let’s add this up, shall we: President = Republican, Senate majority = Republican, House of Rep. majority = Republican.
Hmmm…. my calculator sums this up as a Republican dominated government -, might want to send yours in for repairs. Looks like one party dominated government to me and anyone who can follow the math here.
Posted by: David R. Remer at June 8, 2004 02:15 PMDavid,
“my calculator sums this up as a Republican dominated government”
The aristocracy is in charge, no matter whether you see “D” or “R” next to the names of its functionaries. “Tax the middle class” and “give to the rich (via contracts)” are both phases of the two-phase pump. Yes, yes, yes, Kerry promises this and that, but might he be simply voting for it before he votes against it? Or even if he really does try to hold the line on that campaign promise, will his own party even let him restrain himself from lowering the heavy-taxation bar from $200K to $30K, incrementally, over time?
Posted by: Ciggy at June 9, 2004 02:43 PMWow, Ciggy. Lot’s of cynicism there. At some point you just have to trust that the candidate who you think represents your values will do everything he can to further them.
If he turns out to be a bald-faced liar, like Bush, then you just get rid of him and try again.
Ciggy, your argument can be made about anyone who runs for public office, “What does he really want? What is he really trying to acomplish?” People are already asking that about Nader.
Who’s your candidate? I’ll show you how easy it is easy to play the game where you give a candidate evil motives for something they haven’t even done yet. :)
AP,
“If he turns out to be a bald-faced liar, like Bush, then you just get rid of him and try again.”
That’s not how it turned out, under Clinton. The Establishment actually worked to defend him BECAUSE of his lies, not in spite of them. They called it “statesmanship”.
“Trust” of a politician is very similar to “trust” of a mechanic (with a nod to the Dead Kennedys’ Trust Your Mechanic here, for those who know their old school punk rock songs). It’s best not to do so fully, and sting operations to catch them with their hands in the cookie jar, as a warning to others, are always in order.
“Who’s your candidate?”
I’m not sure whom I’m going to write in yet. Part of me wants to knee-jerk for “whoever the Libertarian is” like previous campaigns, but it might be possible to trott out someone whose value set is even closer to my own. Or I might go the hero-worshipping route and write in McCain, in spite of policy issue differences.
