Stories We Tell Ourselves About the PATRIOT Act

I missed this when the column first went up a few weeks ago, but oh, man, it’s worth revisiting. With the PATRIOT reauthorization, Republicans faced a couple embarrassing moments. First, failing to secure sufficient votes due to in-party defections on the initial go-around. And second, the generalized cognitive dissonance one must face when reconciling tea party rhetoric about “freedom” with the most draconian overhaul of our national security institutions since McCarthy, a dissonance the right tries to reconcile, well, by lying. A line-by-line of National Review Online’s defense of the PATRIOT Act

It is a myth perpetuated by the Bush-deranged media that the Patriot Act was a dramatic expansion of federal power and that it unduly infringed on American civil liberties. For the most part, Patriot simply endowed the national security side of the FBI’s house with the same powers that had long been exercised by the law-enforcement side. Moreover, Patriot provisions often provided more protection and court oversight than existing law-enforcement procedures.

He actually flipped that. Corrected, the quote should read PATRIOT “endowed the [law-enforcement] side of the FBI’s house with the same powers that had long been exercised by the [national security] side.” Reading the equivalence properly, well, that’s a vastly different innovation. The nation was founded on a presumption against domestic military power, formalized in documents like the Posse Comitatus Act. The breaking of the FBI’s internal “wall” was a well-documented event, and NRO, apparently, thinks little of its readers. 

One of the three provisions in the reauthorization is a good example: the business records provision (which opponents demagogued as the “library records” provision even though library records are not mentioned in it — though they are covered in its sweep).

So it’s demagoguery to style a provision after its most offensive part, which does, in fact, exist? Well, at least our bogeymen are real, rather than the inventions of Sarah “Death Panels” Palin.

In a terrorism investigation, Patriot’s business records law allows national security agents to go to a court for authorization to compel the production of all sorts of records that might be relevant to a terrorism investigation. By contrast, when I was a prosecutor investigating terrorism as a law-enforcement issue, and I wanted to subpoena exactly the same kinds of information, including library records, I simply reached into my desk drawer for a subpoena, wrote up my demand, and handed it to an FBI agent to serve on the business (or library) in questio[n]. Contrary to Patriot Act procedures, I did not have to apply to a court for permission, and I did not have to certify that the information I was seeking was relevant to some legitimate investigation … and if the documents demanded were not produced, I could have the custodian of the records jailed for contempt.

McCarthy refers to the “national security letters” provision. The reality of NSLs, though, is a little different than his description.  Under the original PATRIOT Act, they required no substantial judicial oversight.  NSLs had to be approved by a federal magistrate judge, or a judge of the Foreign Intelligence Surveillance Court (FISC). FISC, though, is famous for its near 100% compliance record with law enforcement authorities, and did not require a demonstration of probable cause. This is not subpoena-level protection. Further, as originally drafted, NSLs contained gag orders forbidding the recipient from discussing the letter with anyone, even an attorney. Democrats cut that provision in reauthorization. But the reality remained, for some time, that you could be served with an NSL on little to no showing of need, forbidden from speaking about it with your attorney, and jailed on non-performance. These aren’t warm and fuzzy little things, and they were abused.

Like business records, the two other Patriot provisions at issue mirror the criminal law. Roving wiretaps can only be used with the approval of a judge,

Again, a FISC judge.

and if you are going to target a terrorist or other foreign agent for electronic surveillance at all, it is downright dumb not to get a roving tap because these guys are sophisticated actors who change their phones a lot to defeat surveillance. If we didn’t have roving taps, investigators would have to go back to court and get a new eavesdropping order every time that happened. For that reason, law-enforcement agents doing run-of-the-mill drug investigations have had roving tap authority for about 30 years.

Sure. But to get a roving tap on the law enforcement side, you had to get (say it with me) a warrant. PATRIOT removed that requirement, therefore endowing the FBI with the same power, minus judicial oversight, minus any other meaningful oversight, meaning a massively increased chance for abuse.

The “lone wolf” provision enables national security agents to surveil an operative who appears to be engaged in international terrorism but as to whom there is currently insufficient evidence of his connection to a known foreign terrorist organization — a pattern that criminal investigators often probe. (Agents frequently learn about what someone is doing before they can nail down whom he is doing it with).

The “lone wolf” thing was actually a good idea. I can’t dispute this part.

Here is what I don’t understand about the GOP defectors’ position. It’s not as if refusing to reauthorize the collection of business records, roving wiretaps, and the surveillance of lone wolf terrorists is going to result in any reduction of federal power. It would simply result in a shift from national security law to criminal law as the source of authority to use exactly the same investigative techniques. All Congress would accomplish would be to revert us (at least insofar as these tactics are concerned) to the September 10 approach under which terrorism was considered a mere crime to be addressed by law-enforcement protocols. Effectively, we would be abandoning the post-September 11 approach that has staved off attack by elevating intelligence gathering and prevention over evidence collection and prosecution (usually after people have already been killed). But it’s not like the federal government’s power to use these tactics would be neutered.

Not really accurate and, besides, an example of the author speaking out of both sides of his mouth. PATRIOT is justified as necessary to meet the exigencies of the post-9/11 world; but it doesn’t really change much; government would be just as powerful without it; and really, we don’t need it? No, that’s not how this works.

Further, law enforcement powers are burdened with substantial judicial oversight, as required by the Fourth Amendment. That means, pre-PATRIOT, the FBI did face substantial obstacles when leveraging those powers against suspected terrorists. The PATRIOT remedy is to waive almost all judicial protections upon mere mention of the words, “national security.” That’s a big change, and don’t let this classic undersell dissuade you otherwise.

Moreover, I’ve never understood the Tea Party to stand for the repeal of all federal power. It just wants Leviathan out of the zillion things that should be the purview of either individual choice or, at most, state or local regulation.

Including healthcare, apparently, but excluding library usage. At least, excluding non-surveilled library usage.

There’s plenty to do on that score when it comes to federal police power — there are way too many federal crimes and way too much intrusion by federal investigative agencies. The Tea Party GOP members would be doing a real service if, for example, they studied the work Ed Meese has been doing at Heritage on the federalization of what the framers intended to be the prosecutorial functions of the sovereign states.

But national security is one of the few necessary federal obligations. Protecting the homeland from attack by hostile alien forces is the first responsibility of the central government. If you did away with everything else the Justice Department and the FBI do — got them out of securities regulation, healthcare fraud, organized crime, narcotics enforcement, etc. — you would still want them to protect the United States from attack by foreign powers, including terrorist organizations.

NRO just argued for the repeal of the RICO Act, the Securities Act, the Exchange Act, and more.

You would still want them scouring records for patterns about what al Qaeda might hit next, tapping the phones of the next Mohamed Atta, and surveilling the next Zacarias Moussaoui until they could find out who he was working for.

Voting against the reauthorization of these essential counterterrorism tools is not striking a blow for limited government. It’s mindless preening — the kind that makes you wonder if some of the people screaming about “first principles” understand what the first principles are.

Apparently, there remains no place on the right-wing of American politics for those who believe in a generalized right of privacy.


  1. “…when reconciling tea party rhetoric…”


    1. What’re you referring to?

      If “freedom,” I mean the way the tea party’s warped the word out of all meaning.

      1. I was actually referring to the passive-aggressive lower case format.

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