Sunday, February 01, 2004

A Political Survey
Part 2-
Patriot Act and FISA

The first question in Rep. Smith's survey of his constituency concerns the Patriot Act, HR 3162, also known as the 'Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001'. The question asked is:

The Patriot Act

The Patriot Act, passed in 2002, allows law enforcement to use some of the most aggressive tactics ever allowed under the Constitution to prevent terrorism and apprehend terrorists. Although the law enforcement powers have been approved by the Supreme Court, some say that these powers could pose a threat to civil liberties.

1. The powers in the Patriot Act:
Are unjustified and should be repealed.
Need to be exercised as little as possible and under public supervision.
Are probably justified to protect the American people.

As an introductory comment, I would like to state my objection to the now-common practice of referring to serious legislation by politically-motivated and/or potentially misleading titles. (In a previous post, I proposed a new law, “Joseph's Law,” that would outlaw this practice.) The title, “Patriot Act,” implies that it would be unpatriotic to question the Act. This is bizarre: what could be unpatriotic about engaging in political inquiry?

The Patriot Act has indeed sparked volumes of discussion about such diverse topics as: checks and balances, protection of civil liberties, and appropriate application of police powers. Some of the public discourse has, undoubtedly, been ill-considered or poorly thought through; nonetheless, such discourse is to be encouraged; not dismissed or maligned.

By way of background, the Patriot Act was written in the aftermath of the terrorist attacks that occurred in the United States of America on September 11, 2001, henceforth referred to as “9/11”. The 324-page Act was written, debated, and passed in the interim between 9/11/2001 and 10/26/2001. Due to the fact that this Act a) expanded the authority of the Executive Branch of the US Government, and b) was conceived and implemented without the usual degree of deliberation and public debate, Congress wisely incorporated sunset provisions; these require Congressional review and affirmative renewal by 12/31/2005. This provision is congruent with the philosophical basis of the Constitution: that legal authority is granted to the US government by the citizens of the USA. Note, however, that only certain sections of the Act are subject to the sunset clause.

Although the question in the survey regards the Patriot Act specifically, I note that the concerns raised about the Patriot Act also are relevant to related legislation: FISA (Foreign Intelligence Surveillance Act), and the Homeland Security Act. Discussion of these is beyond the scope of this article.

Numerous objections to the Act have been raised in a variety of public forums. The most serious of these, in my judgment, are:

  • Weakening of requirements for probable cause for surveillance

  • Weakening of judicial oversight

  • Increased governmental secrecy

  • Weakening of protection of civil liberties that had been built in to FISA

  • The new possibilities for using surveillance data collected pursuant to the Patriot Act and/or FISA for prosecution of crimes that are not related to terrorist activities

  • The requirement for Congressional review to renew some provision of the Patriot Act, without a corresponding requirement for the Executive Branch to report to Congress the implementation, successes, and problems that are related to activities conducted pursuant to the Patriot Act

For discussion of these issues, please refer to the analysis at the Electronic Frontier Foundation website,  Human Rights First website, and the Electronic Privacy Information Center website. For a rebuttal to some of these concerns, see the Dept. of Justice website.  Attorney General John Ashcroft's defense of the Patriot Act is reported in the Washington Times.

To get back to the question, my answer is:

Need to be exercised as little as possible and under public supervision.

I would add that careful attention should be given to the review of the provisions that are subject to the sunset clause. In fact, I think that the entire bill should be reviewed; not just the parts subject to the sunset clause. Furthermore, the US Government should make an effort to provide as much transparency as possible regarding an proposed expansion of the Patriot Act. The haste with which the Act was written and passed is understandable. But now that there is less urgency, it is important that the Government and its citizen take the customary time and care in consideration of any additional terrorism-related legislation. Unfortunately, this does not paper to be the agenda of the current Administration. AG John Ashcroft is on record  as saying:

Mr. Ashcroft said he was able "dispel some myths" about the original Patriot Act when testifying earlier this month before a House Judiciary Committee considering a second act.

He said people's fears about the government spying on them are alarmist.

"Some people cannot start their cars and say, 'Oh, it's the Patriot Act, " Mr. Ashcroft said.

This is an example of the kind of dismissal of political discourse that I said earlier is inappropriate. When such a highly-placed government official makes such comments, it lends credence to the notion that some officials in law enforcement may not be disposed to exercise the implementation of the Patriot Act with due prudence and restraint.

Another matter of grave concern is the process, within the Dept. of Justice, that promotes expansion of the Patriot Act. Specifically, it has been reported that the DOJ has work on legislation that would do exactly that. A draft of the proposed legislation, entitled "Domestic Security and Enhancement Act of 2003",  has been leaked and is available for download. As it is marked “Confidential – not for distribution/ draft”, and I cannot be sure that distributing it is appropriate, I will not post the link. I must say, though, that there is a certain irony to this. Mr. Ashcroft has stated that judges should not legislate from the bench. If it is inappropriate for the Judicial Branch to write law, certainly it is equally inappropriate for the Executive Branch to do the same.  I understand that there is an accepable role for administrative law, but the actual drafting of sections of the Federal Code is the role of Congress.   If the staff of the DOJ feel that they need a new law to serve a particular purpose, they should ask Congress to draft the law.  If they want to comment on law that is being considered by Congress, they should make their comments in an open forum.  It ought to be illegal for the DOJ to produce and circulate confidential documents that are intended to influence the legislative process.  A disturbing aspect of the case is that the DOJ denied that it had done this, even after the document had been leaked:

Barbara Comstock, director of public affairs for the Justice Dept., released a statement saying that, "Department staff have not presented any final proposals to either the Attorney General or the White House. It would be premature to speculate on any future decisions, particularly ideas or proposals that are still being discussed at staff levels."

This statement specifies that no “final proposals” have been presented yet. I suppose this is literally true, since a draft is -- by definition -- not a final document. But is is a lie of omission to say that no final proposals have been made, yet neglect to mention that an extensive (120-page) draft has been submitted.

Note that, ordinarily, I would provide a link to the source of any direct quotes. Since the source of this quote contains a link to the draft report that is marked “confidential', I am not providing the link here.

In summary, Mr. Smith has asked an appropriate question in his survey. It is my hope that this promotes serious consideration of the Patriot Act and related legislation. I hope also that Mr. Smith is among those who engage in a careful review of such legislation. It is my opinion that the Patriot Act should be exercised as little as possible, and with public supervision, consistent with the concept of checks and balances.  In addition, it is my opinion that the legislative process should be left to Congress, especially with such important and controversial issues as the Patriot Act and the proposed Domestic Security Enhancement Act.