Just had a discussion with a friend about our alleged loss of civil liberties here in the USA. I asked for an example. He said that the Patriot Act allowed the government to look into our library records without a warrant. Since he works at a library, I presume that others at his place of work felt the same way, and should, theoretically, actually know something about it.
Yet, from Answers.com, my emphasis:
Government Access to Library Records
Perhaps the most controversial section of the USA PATRIOT Act stems from Section 215. Section 215 allows FBI agents to obtain a warrant from a secret federal court for library or bookstore records of anyone connected to an investigation of international terrorism or spying.
From The Washington Post:
One provision of the Patriot Act makes it possible for the FBI to obtain a wide variety of personal records about a suspected terrorist -- including library transactions -- with an order from a secret Foreign Intelligence Surveillance Court, where the government must meet a lower threshold of proof than in criminal courts.
Right. The government doesn't have to meet the standard of "probable cause" (i.e. more likely guilty so far than innocent), but a judge must agree that this particular request for records is part of a legitimate investigation into international terrorism.
And, from the text of the Patriot Act itself, Section 215:
Each application under this section... 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.
And for those of us who aren't legal scholars, an "ex parte" court order (warrant) is explained as follows: "a request for a search warrant is an ex parte proceeding, since the person subject to the search is not notified of the proceeding and is not present at the hearing."
That's it. A court order is needed, and the judge must be convinced there is indeed a need for the records as part of "an authorized investigation ... against international terrorism" before such a court order is issued.
It appears to me that people are simply being deceived here.
As usual.
As far as "they write their own warrants", that happens with every search warrant. The DA decides what must be obtained, and they describe it and show it to a judge.
If the judge agrees, the search goes forward. If not, then back to the drawing board. I could be describing the PATRIOT Act, or your local police: as far as I can see, it's the same story in both cases.
Except, perhaps, for the menacing tones of critics.
As far as "sneak and peek", that is, as far as I can see, very important. Tell me: What's the best way to roll up a network of terrorists? Arrest one, or let even one know you're onto him, and then let him alert everyone else... or keep him in the dark while he slowly reveals his other connections?
As far as ordinary citizens, so what? Sure, it would bother me to have police looking into my stuff without my knowing it -- but not more than if I *did* know it.
Consider: Scenario A: Police come to my door and demand I hand over my laptop now. What evidence do they get? Whatever's on my hard drive.
Scenario B: Police sneak in and copy my hard drive. What evidence do they get? Exactly the same as before.
Only difference is that in Scenario B, if I'm actually guilty, and part of a network, I can warn my buddies and they can scram, or cut me out of the operation.
Look, I don't think you're a bad person or anything. But if you think law enforcement should always announce each investigation to a suspect, then I don't want you on the police force. That's fine for when you're arresting a single murder suspect or burglar, for a crime already committed -- but it's a moronic strategy for busting up a crime syndicate or terrorist network intent on many future crimes.
Markus,
Forgive me that some of my responses are out of the order you wrote them in...
If you don't see how not notifying a "suspect" that they're being investigated could not be abused and used on innocent, law abiding citizens by a corrupt government organization, then you're not as bright as I imagined you to be.
You're welcomed to state what the "abuses" might be, if I am as dim as you suggest. Of course, if they are as obvious as you imply, one wonders why you haven't named any so far.
Explain please: How can I be harassed by an investigation if neither I, nor anyone else in the general public, ever know it's going on?
Do you understand why this provision was present in the PATRIOT act? It was requested by civil libertarians!
Historically, when a government (or other party) wants to harrass a citizen, what they do is start an OPEN investigation. Ever watch "Law & Order" where they threaten health inspections until the restaurant owners co-operate? And observe what Scientology does: they'll have some "investigators" contact all your friends and co-workers, implying dark things for which they're investigating you.
Preventing this sort of abuse is precisely why the PATRIOT Act, Section 215, states:
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.
This is a damned-if-you-do, damned-if-you-don't argument: If this clause had been omitted, civil liberties groups would claim (rightly!) that public investigations could be used to harrass people. But prevent Justice Department from spreading the word around, and... ta-da, it's also a violation of your liberties!
The only way out is to have the government notify you, and any terrorist, that they're about to be investigated BEFOREHAND, or prevent ANY investigations into terrorism. Some people seem to think at least one of these is a great idea, and I tend to think either one is the height of stupidity.
Those people and I just see it differently.
Look what happened with the FBI back in the 50s and 60s...
A common argument against laws is that they can be 'abused'. But, strangely, the examples given are usually of laws being broken, not followed.
Look at your example: J. Edgar Hoover, you allege, attmpted to blackmail Martin Luther King into killing himself.
And what does that have to do with the PATRIOT Act? Was J. Edgar Hoover allowed, by any law in existence at the time, to legally blackmail suspects of investigations? Of course not. You're just tossing up scary stories, without drawing any logical connection between them and your intended argument.
Look, what Hoover did was blatantly illegal. You're using the same (il-) logic that gun control advocates trot out everytime a mass shooting occurs: Make more laws to restrain the lawless. But the core problem is that the lawless break laws. And usually, all you end up doing is hampering legitimate actions (again, like the investigation which probably would have led to the 9/11 hijackers) while doing nothing to restrain those who have no deference for law.
Look, we didn't have the PATRIOT Act in the 1990s. And yet the Clinton administration was found with 900 FBI files, belonging to their enemies, in the White House. Where they didn't belong. Curiously, those enemies were also audited time and time again.
And I remember Al Gore, saying repeatedly: "There is no controlling authority..." -- an admission that he had violated campaign finance laws, but a taunt that there was no agency that could prosecute him for those acts.
Again, which law enabled these behaviors? Right: none. So you'll need to explain the connection between this LIMITED power of "sneak and peek", allowed only under court approval, as part of a legitimate investigation into international terrorism, and, say, the behavior and abuses of William Jefferson Clinton or J. Edgar Hoover.
My problem with this law isn't in what its used for now, but in what it may one day LEGALLY allow.
Yes, and you'll need to explain what it will LEGALLY allow, to which you object. What does it mean to say "one day"? Right now it allows -- again -- federal officials, with a court order, to examine business records as part of an authorized investigation into international terrorism.
Ten years from now, if the law still exists, it will allow exactly and only the same thing. If the law changes, then we are discussing a different law, not this one.
Please, spell out an abuse. Do it please.
You might say: "Well, the government could tell people you looked at Playboy online." No, it can't: that violates Section 215 in two major ways: (a) it told people about your investigation, and (b) that material was clearly not part of a legitimate investigation into international terrorism.
You see? It seems to me you're stuck: Each time you suggest an abuse, it will be something that the law doesn't allow. You can't argue a law is bad by arguing it can be broken -- if that was rational, most atheists would make sense. (They frequently argue the bible is bad because Christians disobey it in various ways.)
And don't tell me you trust the government 100% with that kind of power.
What kind of power? The power to, with a court order, look at my records which they can convince a judge are part of an investigation into international terrorism? Yes, I do trust government with that kind of power.
The government has been able to do the same kind of thing for investigations into the mafia and drug dealing for years -- and you didn't seem to notice it then -- but now you suddenly get excited that the same powers are available for investigations into international terrorism??? This seems wildly disproportionate.
Look: If my cell phone company can legally sell my list of callers to anyone for $110 -- including criminals -- then why the heck are you apopletic about the government looking at the same information in a much more private and restrained manner, and only with a court order?
Your passions don't make any sense here. I'm much more worried about some criminal or potential blackmailer finding out who my friends are than the FBI, especially if and when an independent judge has certified such records are part of a legitimate investigation into international terrorism.
The point is, whether or not this helps law enforcement in the war on Terror is irrelevent to whether or not it may eventually allow the same law enforcement to harass innocent citizens.
Again, please explain how this would work. If you think I'm not bright, then go right ahead and spell it out. Give me one specific example, please.
THAT is what I'm worried about, and THAT is why it should be tested in the Scotus.
Ummm... this argument makes even less sense. If the law allows abuse, how would SCOTUS certifying it as constitutional change anything?
Let's say that the government has a right to come take my car at any time, for any reason. I don't like that law, obviously. Then SCOTUS rules on it, and says it's Constitutional.
How does this change anything? I still lose my car. But now, I guess, I can be certain that justice was indeed done?
And if it's a bad law, why do you have to wait around to see what SCOTUS says? Oppose it now. If they can err in one direction, don't you worry they'd err in the other, by calling a good or constitutional law bad?
And for an alleged conservative, you have a touching amount of faith in SCOTUS. In the Kelo decision, SCOTUS just gave the government the ability to seize anyone's land and give it to anyone else. So you agree with that decision because it came out of SCOTUS, and SCOTUS decided it was Constitutional?
Look, the reason to fear a bad law is because you can come up with some specific, plasuable legally-allowed abuse, and show that the abuse is more costly than the alleged good use. I'm not saying there is no reason to be concerned, just that I haven't heard one yet, and you're utterly failing to supply one here.
I don't mind that they can now search Library records with the proper warrant, but what does worry me are the "Sneak and Peek" provisions that allow the FBI, from the explanation given by Judge Andrew Napalitano on Fox News, write their own warrants, search your property and take it from you, and maybe never even let you know about it.
Posted by: Markus on January 17, 2006 10:26 AM