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The Continuing Hunt for PATRIOT Act Abuses
Throtex writes "Orin Kerr, Associate Professor of Law at George Washington University writes at The Volokh Conspiracy that the Department of Justice is having trouble finding abuses of the USA PATRIOT Act. This follows from the fact that what the media originally aired as abuses were merely allegations of abuse at the time. Could it be that there has just been a lot of fuss over nothing?"
It does not matter if the government has actually abused citizens via the Patriot Act. The only thing that matters is that it can.
If someone says he and his monkey have nothing to hide, they almost certainly do.
"Could it be that there has just been a lot of fuss over nothing?"
Hopefully that is the case but it also shows why it is important to "fuss". You cannot just mindlessly accept things and hope for the best. If you don't agree, and many people do not (although only 1 senator doesn't) then it is important to raise a fuss to let them know you're watching.
"If you are a dreamer, a wisher, a liar, A hope-er, a pray-er, a magic bean buyer
If a government action that would otherwise be illegal becomes legal under the patriot act, is that an abuse? Or does it have to be blantently obvious and clearly wrong? What about the patriot act being used for non-terrorism related purposes? Isn't that an abuse?
Quid festinatio swallonis est aetherfuga inonusti?
Africus aut Europaeus?
Whether or not there have been abuses (and whether or not the public at large is aware of them yet - no small matter considering the fine print of the Act), has absolutely nothing to do with whether we are "fussing over nothing." We are discussing the unraveling of hundreds of years of sacred American values and traditions.
Consider the meaning of these traditions. The fact that someone working for our president can point his finger at you and say, "you, come with me," and then you spend years in a cage without a lawyer, due process, a phone call, etc, is bad. The only time it is not bad is in the theoretical and impossible perfect world where we all have perfect, omniscient knowledge and only, ever, use this power for good.
The rules we have to regulate our law enforcement activities are not there to make law enforcement easier or harder. They are there to protect us against ourselves - they inscribe a well-known and ancient protection against human nature, and our ancestors had to bleed into the earth for many, many generations to secure these freedoms, after wearying, inconceivable repitition of abuses, time, after time, after time.
We made our constitution difficult to change to protect our children from cowards. Cowards who run crying, begging for protection from terrorists at any price - even though they kill fewer people than slipping and falling, even though they are selling freedoms that sufficed for us through many, many crises before. I'm sure there are many here who are scared enough of Osama to sell out their civil rights on the chance it will make them a little safer. It's the price we all pay for the general ignorance of history.
The PATRIOT act itself stirs up a lot of confusing debate because it is a beast of many parts; I hope we can stay on topic and remember that we are not objecting to interdepartmental communications and red-tape reductions in law enforcement, but rather the rolling back of safeguards that were established very recently - and in response to abuse of power by American law enforcement so systematic and staggering that even Congress and the President were frightened into enacting them.
Hoover's FBI is not ancient history, it is recent history. And we are Americans - it is shameful to forget our past so conspicuously as to suggest complaints over the PATRIOT act are trifles and fuss. These are matters of principle, of black-letter constitutional law. We do not need to wait for abuses to "fuss." The abuses have already happened, again, and again, and again, and again, and again, and again... This is why we had safeguards for PATRIOT to remove in the first place. How many times does it have to happen for us to really get it? How thick is America's collective skull?
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This follows from the fact that what the media originally aired as abuses were merely allegations of abuse at the time.
Although the fact that publicly reporting you've been charged under the act is itself a crime doesn't help.
You're looking for quotes? See my journal.
Perhaps the Department of Justice, like many government agencies, are so biased for themselves, they can't see their own failings. That combined with a total lack of accountability leads to the inefficient operation and complete inability to change seen across the government.
haven't been able to talk to thier lawyer or any outside contact.
You receive a National Security Letter demanding that you turn over information. You consider it an abuse, but you can't argue with them and you can't tell anyone about it (or you're in violation). So it's a big secret, nobody has to know, and they don't have to report it to Congress.
So there could be hundreds of abuses that we'll never know about...all because it's written into the law as a big fat secret.
How about Guantanamo Bay
The American Citizens in Guantanamo Bay are having their civil rights abused by the Patriot Act!? I thought the only American Citizens there were military - which have a whole different set of rights as specified by military law - so the Patriot Act doesn't really apply. Unless, you are referring to the news reporters that run down there every now and then to try and get a juicy 'prisoner abuse' story to promote and further their career.
The previous comment is purposely vague and generalized, but all of the facts are completely true.
The PATRIOT provisions requires the Deparment of Justice Office of the Inspector General to collect and respond to complaints, when appropriate, and issue a report on its findings twice a year.
The March 11, 2005 report is here.
And from TFA:
Consider the stats from the latest report, released on Friday. DOJ received 1,943 complaints about alleged civil liberties abuses. Of these, 1,748 either did not warrant an investigation or were outside DOJ's jurisdiction:
Approximately three-quarters of the 1,748 complaints made allegations that did not warrant an investigation. For example, some of the complaints alleged that government agents were broadcasting signals that interfere with a person's thoughts or dreams or that prison officials had laced the prison food with hallucinogenic drugs. The remaining one-quarter of the 1,748 complaints in this category involved allegations against agencies or entities outside of the DOJ, including other federal agencies, local governments, or private businesses. We referred those complaints to the appropriate entity or advised complainants of the entity with jurisdiction over their allegations.
Of the 195 complaints that did warrant investigation, 170 involved what the report describes as "management issues" rather than civil liberties abuses, such as reports by "inmates [who] complained about the general conditions at federal prisons, such as the poor quality of the food or the lack of hygiene products."
The bottom line is that PATRIOT, while not itself a "law", merely modified existing statutes, mostly to bring them up to date (e.g., dealing with cell phones, wireless devices, email, etc. in the context of "wiretaps") and expand definitions in others. The result is imperfect, like all laws, and should be watched for abuse. But there is nothing inherently evil about it. Interested persons would do well, at a minimum, to at least read the text of the act.
No. Because the fact that there is now a potential for abuse means that someday it will happen even if it hasn't already. The lid on Pandora's box is wedged open and the tyranny that Jefferson and Adams and the rest of the founding fathers fought to protect us from is slowly escaping to menace us once again.
I think that a big part of the problem is that the PATRIOT act allows abuses that we, by definition, will never hear about.
If you can detain someone outside of the country, do so under a warrant that is classified, and deny them access to legal representation, outside contact, and the US court system.... how will anyone ever know?
We're talking about the kind of stuff that used to go on in the Soviet Union (seriously, no "in Soviet Russia jokes").
Sure, right now these laws might be used against the "bad guys" as it were, but administrations change, circumstances change, governements change. Even if you're ok trusting the Bush administration with these kind of powers (and I'm not) would you be ok trusting... say... Ted Kennedy, Hillary Clinton, or Sen. Feingold with those powers?
Killfile(TGK)
No trees were killed in the creation of this post. However, many electrons were inconvenienced.
"It's the best there is," Doc Daneeka agreed.
> This follows from the fact that what the media originally aired as abuses were merely allegations of abuse at the time. Could it be that there has just been a lot of fuss over nothing?"
The fact that we're able to ask questions and write articles about the PATRIOT Act indicates that the PATRIOT Act is not being abused. If the PATROIT Act really were being abused, we wouldn't know about it -- because the victims (and anyone foolish enough to write about them) would be disappeared.
Likewise, you'll know that PATRIOT is being abused - if and only if you stop finding evidence that it's being abused, because all the evidence will be private. Except for this evidence, which (because it's public) is evidence that it's not being abused.
The logic sounds complicated, but it's really quite simple:
Rights to lease the Guantanimo Base facility were granted to the United States in the treaty that ended the Spanish American War (if memory serves). The base is a US military outpost wherein US troops are subject to the Code of Military Justice, a US Law.
As US Law applies on the base, it is fair and reasonable to assume that the US Constitution, the supreme law of the United States of American, also applies on the base.
Moreover, there exists no provision in the US Constitution limiting the geographic scope of the document. Further, the Constitution make little or no distinction between US Citizens and other random individuals under the power of the US Government (save for some very specific liberties like voting and holding office).
Therefore if any actions of the US Government which are in violation of the provisions of the Constitution, even if those actions take place outside the territorial boundaries of the United States (which Guantanimo Bay may or may not be within), reamain Unconstitutional and illegal.
This is EXACTLY, why the government was ordered by the Supreme Court of the United States to allow detainees in camp X-ray access to lawyers and a proper hearing.
Killfile(TGK)
No trees were killed in the creation of this post. However, many electrons were inconvenienced.
Just out of interest, I wonder what would happen if, say, Japan had imprisoned a bunch of innocent US citizens at an offshore location, held them there for several years, and tortured them, without even charging them, let alone any other due process
You mean, what would happen if the Japanese captured American citizens on a foreign battlefield operating outside of the control of the US Government fighting for a regime that supported the terrorists who had just murdered 3,000 Japanese civilians? I'm sure we'd have words with them in the diplomatic arena but I highly doubt that nukes would be landing on Tokyo over it....
Mind you, I'm not the biggest fan of Gitmo either. I don't see why our criminal justice system can't handle these people -- or why they couldn't just be killed on the battlefield in the first place (nowhere in Geneva does it obligate you to accept your enemies surrender -- it only states what you can do after you accept said surrender). I am merely playing devil's advocate and pointing out the rather obvious fact that the majority of the people at Gitmo are hardly innocent citizens of friendly foreign nations.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
And a pretty good argument can be made that the terrorists we have down there are outside of the Geneva convention as they aren't members of any regular army backed by a real country. They are terrorists.
Excuse me mods, but this isn't flamebait. Unpopular no doubt, but it's hardly flamebait. Can't we leave the politics out of the moderation process for one intelligent conversation?
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
First, bush doing this isn't the fist time it has ever been done. Second so what.
You are part of the problem.
If someone is a terrorist and holding them indefinatly allows them to further pursue other objectives without harmign inteligence or person obtaining it then who cares?
Me.
These are human beings. People. If we know they're a "terrorist", then we have evidence that they've committed crimes heinous enough to be called "terrorist acts". Charge them with the crime, try them in a court of law where the evidence can be presented, lock them up, and throw away the key.
By approving of their detention without due process, you approve of your detention without due process if someone fitting your description robs a liquor store down the street with a stick of dynamite (you terrorist you).
The fact that you don't care about those human beings or their loss of due process in the slightest demonstrates to me that our education system truly has failed as it has produced a nation of voting age adults who have no idea what the words "freedom", "liberty", "rights", or "critical thinking" mean. The government said it, you believed it.
It frustrates me so much that sometimes I just want to cry about where this country is going. In your eyes, that probably makes me an "America hater".
Fucking pathetic.
Ross
But what if American citizens are being detained there? I can't seem to find any report one way or the other, and since apparently no one is allowed to visit all of those detained there (at least that I have heard of) how can we know who or even how many people are detained there?
Gitmo has absolutely nothing to do with the Patriot Act unless there is some provision in it that authorizes the Federal Government to declare people enemy combatants and send them down there. Gitmo is an argument best saved for a discussion about international law or the Geneva conventions.
If you really want to talk about the Patriot Act, then let me be so bold as to suggest that even if it isn't being abused now it will eventually be abused and probably not even against terrorists. Recall how the RICO statures were intended to be used against organized crime. Nowadays the Feds will threaten RICO prosecutions against just about anybody to force a favorable plea or seek harsher sentences then the normal laws will provide.
Might I even be so bold as to suggest that I don't really trust the Federal Government and that in most cases the prosecution of terrorism should be left to the State Government(s) of whichever state was targeted using laws already on the books? If we captured the "20th hijacker" from 9/11 why couldn't he be indicted and prosecuted for about 2,800 counts of murder in the first degree and conspiracy under New York State law? Prosecuting terrorists under state law seemed to work just fine for the Washington DC area snipers.
Why does the Federal Government need to step in and take yet more power away from the states? The role of the Federal Government should be to assist the states -- not bypass them. In any case you know that power is going to be abused in the future.... we've already had cases of the Patriot Act being used in drug cases. Hardly what Congress had in mind when they passed it I'd say.
Let's have a discussion along these lines and see what others have to say.
I want peace on earth and goodwill toward man.
We are the United States Government! We don't do that sort of thing.
Are you sure about that? My understanding is that the identities of those imprisoned there is secret. The problem I have with all of this is the secrecy. The question really boils down to how great a threat you think terrorism really poses to U.S. If it threatens our very existence, then yes, we have to sacrifice freedoms for survival. But short of that, I am very hesitant to allow government to secretly abduct citizens without a trial, no matter what they claim they were doing at the time. The whole point of due process is to prevent arbitrary punishment, including "detention," by our government without a PROVEN cause on an INDIVIDUAL basis. .
Currently hooked on AMP
President Lincoln suspended the right of habeas corpus entirely ... and the right was later reinstated at the end of the war.
Oh good. Then it's just a matter of waiting for the government to declare an official end to the War on Terror. Should be any moment now...
Certainly those who protest the PATRIOT Act now must recognize the horrendous erosions of civil liberties that occurred in the previous Administration under the guise of the "war on drugs" including no-knock warrants and other practices.
Yes, we do. Your point?
Oh, I think I see your point: previous administrations have trashed the Constitution, so it's OK for this one to as well.
Having lived in a police state, I find that offensive.
And yes, knee-jerk. Your original post, which is what I was critiquing was a poorly thought-out, knee-jerk reaction to the article.
They are all hot topics, just like Gitmo... and all have nothing whatsoever to do with the PATRIOT Act... just like Gitmo.
So... how do you feel about late term abortions?
--
Evan
"$30 for the One True Ring. $10 each additional ring!" -- JRR "Bob" Tolkien
I didn't say that believing in retribution instead of/more than prevention is an invalid concept
You should; it's about time that people did. In any case, I will.
Retribution is completely irrational. Morally speaking, it serves only to degrade the victim as well as the perpetrator. The thirst for barbarism runs deep, and everyone is eager for an excuse, so they suggest that someone else's barbarism gives us the right to be barbaric ourselves.
It does not. Barbarism makes our souls smaller and our lives lesser. It's time to stop.
I have seen the future, and it is inconvenient.
The reason that the Department of Justice has not found any abuses of rights caused by the USA PATRIOT Act is because of the nature of the Act. It allows the government to detain anyone, anytime, without providing a reason, without allowing a trial, and without ever having to let them go. We don't know about any abuses because the abuse is also in the covering up. There may be thousands of prisoners held somewhere, not knowing why they are held, or how long they will be held for, but we will never know, because they are held, and the USA PATRIOT Act allows this to happen. They can't tell us that they're being abused because they have lost all of their rights. For those of you who are skimming, here it is in one sentence: There are no reported abuses by the USA PATRIOT Act because the Act itself suppresses reports of abuse.
All your