Getting Specific About the Patriot Act

The Minneapolis Star Tribune ran an editorial today attacking the Patriot Act. It was mostly the usual boilerplate; the Strib says that “American liberty is at stake.” The following is the only substantive paragraph that explains why the Strib thinks the act is such a grave threat:

This law expands the ability of law enforcement to conduct secret searches and surveillance. It permits the FBI to paw through citizens’ medical, financial and mental-health records without notification or permission. It enables investigation of citizens even if they’re not suspected of criminal conduct. Perhaps worst of all, it permits noncitizens to be jailed for the most threadbare of reasons — and authorizes indefinite detention without public judicial review.

Let’s take that paragraph apart sentence by sentence. First: This law expands the ability of law enforcement to conduct secret searches and surveillance. That’s true, although the paper’s reference to “secret searches and surveillance” is silly. Non-secret surveillance doesn’t tend to be too effective. But what, exactly, is the Strib complaining about? The most notable way in which the Patriot Act expanded the government’s ability to conduct surveillance is by authorizing “roving wiretaps” of suspected terrorists. This means that rather than getting a warrant to monitor a particular phone number, the authorities can now obtain authority to monitor any telephone being used by a specified person. The old law was written before the advent of cell phones; in an era in which terrorists constantly switch from one cell phone to another, it was obviously obsolete. Roving wiretaps have been legal in organized crime investigations for years. Does the Strib really believe that the same authority should not have been extended to combatting terrorism? If so, why? Or is the paper referring to some other expansion of the government’s ability to conduct surveillance? It doesn’t say.

Next: It permits the FBI to paw through citizens’ medical, financial and mental-health records without notification or permission. This is a ridiculous characterization of Section 215 of the Patriot Act. FIrst, note the pejorative phrase “paw through,” which reveals the paper’s anti-law enforcement bias. And what does the newspaper mean by “without notification or permission”? Is the Strib complaining because the FBI doesn’t have to get the terrorist’s permission? Apparently so. Under the Patriot Act, the FBI is required to obtain permission in the form of a court order. To understand how foolish the Star Tribune’s characterization of Section 215 is, you really have to read the relevant provisions in their entirety:

SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.

(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
(2) An investigation conducted under this section shall–
(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
(B) 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.

(b) Each application under this section–
(1) shall be made to–
(A) a judge of the court established by section 103(a); or
(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.

(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.
(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

SEC. 502. CONGRESSIONAL OVERSIGHT.

(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.

(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period–
(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and
(2) the total number of such orders either granted, modified, or denied.’

This is what the Star Tribune describes as “pawing through citizen’s records” “without notification or permission.” The paper’s position apparently is that the FBI shouldn’t have the power to subpoena records relevant to an anti-terror investigation. At least, not without the terrorist’s permission.

Next: It enables investigation of citizens even if they’re not suspected of criminal conduct. This one is a bit of a mystery. Maybe the Strib is talking about Section 214 (a) of the Act. In any event, in a counter-terrorism investigation, like an investigation of organized crime, it may be useful to tap the phone of someone who is not himself suspected of being a terrorist, but whose phone may pick up communications by or about terrorists. This doesn’t seem hard to understand, and if this is really what the Strib finds objectionable, it should explain why terrorism investigations should be more restricted than those relating to organized crime.

And, finally: Perhaps worst of all, it permits noncitizens to be jailed for the most threadbare of reasons — and authorizes indefinite detention without public judicial review.

This appears to be the paper’s mendacious description of Section 412 of the Act, which reads, in part:

MANDATORY DETENTION OF SUSPECTED TERRORISTS; HABEAS CORPUS; JUDICIAL REVIEW

SEC. 236A. (a) DETENTION OF TERRORIST ALIENS-

(1) CUSTODY- The Attorney General shall take into custody any alien who is certified under paragraph (3).

(2) RELEASE- Except as provided in paragraphs (5) and (6), the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. Except as provided in paragraph (6), such custody shall be maintained irrespective of any relief from removal for which the alien may be eligible, or any relief from removal granted the alien, until the Attorney General determines that the alien is no longer an alien who may be certified under paragraph (3). If the alien is finally determined not to be removable, detention pursuant to this subsection shall terminate.

(3) CERTIFICATION- The Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien–

(A) is described in section 212(a)(3)(A)(i), 212(a)(3)(A)(iii), 212(a)(3)(B), 237(a)(4)(A)(i), 237(a)(4)(A)(iii), or 237(a)(4)(B); or
(B) is engaged in any other activity that endangers the national security of the United States.

(4) NONDELEGATION- The Attorney General may delegate the authority provided under paragraph (3) only to the Deputy Attorney General. The Deputy Attorney General may not delegate such authority.

(5) COMMENCEMENT OF PROCEEDINGS- The Attorney General shall place an alien detained under paragraph (1) in removal proceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Attorney General shall release the alien.

(6) LIMITATION ON INDEFINITE DETENTION- An alien detained solely under paragraph (1) who has not been removed under section 241(a)(1)(A), and whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person.

(7) REVIEW OF CERTIFICATION- The Attorney General shall review the certification made under paragraph (3) every 6 months. If the Attorney General determines, in the Attorney General’s discretion, that the certification should be revoked, the alien may be released on such conditions as the Attorney General deems appropriate, unless such release is otherwise prohibited by law. The alien may request each 6 months in writing that the Attorney General reconsider the certification and may submit documents or other evidence in support of that request.

(b) HABEAS CORPUS AND JUDICIAL REVIEW-

(1) IN GENERAL- Judicial review of any action or decision relating to this section (including judicial review of the merits of a determination made under subsection (a)(3) or (a)(6)) is available exclusively in habeas corpus proceedings consistent with this subsection. Except as provided in the preceding sentence, no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any such action or decision.

(2) APPLICATION-

(A) IN GENERAL- Notwithstanding any other provision of law, including section 2241(a) of title 28, United States Code, habeas corpus proceedings described in paragraph (1) may be initiated only by an application filed with–
(i) the Supreme Court;
(ii) any justice of the Supreme Court;
(iii) any circuit judge of the United States Court of Appeals for the District of Columbia Circuit; or
(iv) any district court otherwise having jurisdiction to entertain it.

(B) APPLICATION TRANSFER- Section 2241(b) of title 28, United States Code, shall apply to an application for a writ of habeas corpus described in subparagraph (A).

(3) APPEALS- Notwithstanding any other provision of law, including section 2253 of title 28, in habeas corpus proceedings described in paragraph (1) before a circuit or district judge, the final order shall be subject to review, on appeal, by the United States Court of Appeals for the District of Columbia Circuit. There shall be no right of appeal in such proceedings to any other circuit court of appeals.

(4) RULE OF DECISION- The law applied by the Supreme Court and the United States Court of Appeals for the District of Columbia Circuit shall be regarded as the rule of decision in habeas corpus proceedings described in paragraph (1).

(c) STATUTORY CONSTRUCTION- The provisions of this section shall not be applicable to any other provision of this Act.’

So in the Star Tribune’s lexicon, “the most threadbare of reasons” equals certification by the Attorney General that the alien in question is engaged in activity that endangers the national security. “Indefinite detention” means that the alien must be deported, charged or released within seven days, or, if his deportation can’t be accomplished that quickly, he can be held for up to six months if his release would be a threat to the national security or the public safety. And “without public judicial review” means that the alien can challenge his detention by writ of habeas corpus to the federal courts. (I have no idea what the paper means by “public judicial review” in this context.)

As is usually the case with attacks on the Patriot Act, the Star Tribune’s editorial displays no evidence that its author has read the statute. The cartoonish, irresponsible level of the paper’s criticisms is sadly consistent with just about all of the reporting and mainstream commentary on this issue. For informed discussion of the Patriot Act, you pretty much have to seek out alternative media. Better yet, read it yourself.

One more thing: the Strib also attacks the Patriot Act on the ground that there is no evidence that it has been effective:

The president couldn’t be surer that it works. “In a war on terror,” he said last week, “we cannot afford to be without this law for a single moment.” So the president asserts, but what moves him to say so? He’s not cited a single instance in which the Patriot Act has proved pivotal in averting terrorism.

Those Strib editorial writers don’t get out much. They apparently don’t even listen to the radio; in his nationally broadcast radio address on December 10, President Bush said:

America’s law enforcement and intelligence personnel have put the Patriot Act to wise and effective use while protecting our civil liberties. They have used the law to prosecute terrorist operatives and supporters or break up terror cells in New York, Oregon, Virginia, California, Texas, and Ohio.

Maybe that’s not enough detail to satisfy the editorial writers, although, to be sure, it is more detail than they provided in their attack on the law. But there is a limit to how much the President can say in a short radio address. For more information, the Strib editorialists could have gone the web site of the Department of Justice, where they would have seen this article by Frances Townsend, Assistant to the President for Homeland Security and Counterterrorism:

Because of the Patriot Act, law enforcement and intelligence personnel were able to work together effectively to dismantle the “Portland Seven” terror cell. Members of this cell attempted to travel to Afghanistan in 2001 and 2002 and aid the Taliban and al-Qaeda fighting the United States and Coalition forces.

Through an undercover informant, law enforcement learned that at least one member of the group had contemplated attacking Jewish schools and synagogues and even cased targets for such an attack. By the time investigators learned this, they knew the group was dangerous but still lacked sufficient evidence to make arrests. Prosecutors faced a dilemma – they could arrest the cell member and possibly prevent a terrorist attack, but that would risk tipping off other members of the cell.

The Patriot Act provided the way out of this dilemma. It clarified that the FBI could conduct surveillance of cell members and keep prosecutors informed as new information developed. With FBI surveillance continuing, prosecutors held off arresting the cell member while continuing its investigation into other possible suspects. Evidence was gathered, and prosecutors were able to secure additional convictions. Without the Patriot Act, the “Portland Seven” would likely have been the “Portland One.”

The Patriot Act also allowed prosecutors and investigators to work together successfully in the “Virginia Jihad” case. The case involved members of an Islamic center who trained for jihad in Northern Virginia by participating in paramilitary training. This training included eight individuals who traveled to terrorist training camps in Pakistan or Afghanistan between 1999 and 2001 and were associates of a violent Islamic extremist group with ties to al-Qaeda.

Patriot Act provisions made clear that information could be shared with prosecutors that allowed them to bring charges against these individuals. Six defendants pleaded guilty, and three more were convicted of charges that included conspiracy to wage war against the United States and provide material support to the Taliban.

Broader information sharing made possible by the Patriot Act was essential to the prosecution of two men in San Diego involved in a terrorist drugs-for-weapons plot. The two defendants admitted to conspiring to distribute drugs from Pakistan to undercover U.S. law enforcement officers. As partial payment for the drugs, the two sought four Stinger anti-aircraft missiles, which they then intended to sell to the Taliban. Both men are in jail on felony charges of conspiracy to provide material support to terrorists and conspiracy to distribute drugs.

So much for those well-informed editorial writers at the Star Tribune. But now, let’s turn the tables on them. They falsely claimed that the administration had cited no instances where the Patriot Act helped thwart terrorists, while at the same time, they argued hysterically that the Act is a threat to basic American freedoms. But the Patriot Act has been in effect for four years now. If it were such a grave threat to Americans’ civil liberties, then the Strib should be able to cite any number of instances where the administration has used it to infringe on those liberties improperly. Right? So how many such instances does the Strib’s editorial cite? Zero.

This was obviously a lame performance by the Star Tribune’s editorial staff, but it is typical of the substance-free attacks on the Patriot Act that emanate daily from the liberal press.

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