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The Un-Patriot-Ic Left

May 18, 2004

By Heather Mac Donald

Why is the Left waging a ferocious war on the Patriot Act when terrorists are trying to perpetrate more 9/11s on our territory?

In today's Frontpage Debate, we have the pleasure of introducing:

Heather MacDonald, Contributing Editor of City Journal and John M. Olin Fellow at the Manhattan Institute. She is the author of “Are Cops Racist? How the War Against the Police Harms Black Americans.”

and

Joe Williams, editor of Santa Cruz Indymedia, a counsellor with the GI Rights Hotline and the Peace and Freedom Party candidate for the House of Representatives in California's 17th District. He can be reached at williamsforcongress@onebox.com.

FP: Mr. Williams, let me begin with you. The Left has been waging a ferocious war on the Patriot Act. How can anyone justify this behavior at a time when we face such a deadly threat from Islamist terrorists? Shouldn’t minimizing the possibility of another 9/11 tragedy within our borders be our top priority?

Williams: If the Patriot Act actually did something to “minimize the possibility of another 9/11 tragedy within our borders”, then perhaps this would be a different discussion. But over 260 towns, cities, counties and states have passed resolutions opposing the Patriot Act. Arcata, California, even passed an ordinance that fines city workers $57 for cooperating with federal investigations under the aegis of the act. This strongly suggests that regular Americans do not agree that the Act will do what it supporters purportedly claim. It was passed in the heat of the moment without adequate congressional review and debate, and without regard to the harm it does to the constitutional liberties that define us as a nation. As currently constituted, it lets the government find out what a person has been reading in a public library, what they keep on their home computer or in their office financial records. The targeted person does not have to be informed of the searches before or, in some cases, afterward. Nor does the targeted person have to be a terrorism suspect.

The Patriot Act should be viewed as a metaphor for all the civil liberties violations that are currently occurring, and it is a mischaracterization to suggest that those opposing it come exclusively from the ranks of the left. David Keene, Chairman of the American Conservative Union, the nation's oldest conservative lobbying organization, opposes it. And Eagle Forum President Phyllis Schlafly and Free Congress Foundation President Paul M. Weyrich are both vocal critics.

MacDonald: Mr. Williams has given peerless examples of Patriot Act demagoguery, whose two most essential strategies are “Hide the Judge” and “Ignore Legal Precedent.” Critics denounce the provision governing the FBI’s access to business records during a terror investigation (section 215). What they don’t tell you is that the FBI can only obtain business and other records upon permission of a federal court. In fact, section 215 arguably protects rights more than the legal powers which preceded it. Had Mr. Williams been under investigation for a federal crime, his fellow citizens, sitting as a grand jury, could subpoena his credit card or library records on their own—without having to persuade a judge that those records are relevant.

Does Mr. Williams think that Mohammad Atta should be notified that his hard-drive is about to be searched? Apparently so, since he objects to section 213 of the Patriot Act, which allows the government to delay notice of a terrorism search, if notifying the target would put human life or evidence in jeopardy. Here, again, Mr. Williams hides the judge and ignores legal precedent. The FBI can delay notice of a search only with the approval of the terrorism court. And longstanding legal precedent allows the government to delay notice of a search; section 213 merely codifies those judicial precedents.

Mr. Williams does not disclose that the delay is only temporary; eventually, the government must tell even Mohammad Atta that he has been searched. Most critically, however, he appears oblivious to the fact that anti-terrorism work is pre-emptive. How does he think the FBI can uncover the next plot if it immediately notifies potential cell members that they are under investigation?

I would love to know how many city council members or voters in the several hundred towns that have passed anti-Patriot resolutions could accurately describe even one provision of the Act. If they could, they would know that nothing in it comes even remotely close to threatening constitutional liberties.

Williams: The “court” Ms. MacDonald refers to above is a secret court, the Foreign Intelligence Surveillance Court, not just any regular criminal court we're familiar with. By it's secrecy it is immune to normal legal oversight. Section 215 gives the government the power to get records from any business, permits federal investigators to seize library, financial, health, education and other personal records from cities, all without showing that the suspect is a terrorist, a criminal or even a foreign agent. Retail businesses, the telecommunications industry, and financial institutions are now required to violate customer privacy by turning over their records on demand. No probable cause need be shown, and there are criminal penalties for disclosing that records have been requested. It also compels Internet service providers to turn over information about their customers or subscribers in counterterrorism or counterintelligence cases WITHOUT a judge's approval. This last provision is being challenged in court by the ACLU.

Section 213 is entitled 'Authority for Delaying Notice of the Execution of a Warrant,' also known as the “sneak and peek” section. Under 213, federal agents can enter your home, search your belongings, and attach devices to your personal computer that record and broadcast back to them any and all keystrokes you make while online. They can do all of this without ever letting you know they were there. Ms. McDonald seems unperturbed by this vast expansion of governmental power. Benjamin Franklin's quote about trading essential liberty for temporary security seems apt here.

Furthermore, these laws have already been expanded. The “Intelligence Authorization Act for Fiscal Year 2004” granted the FBI the authority to obtain records from financial institutions without requiring permission from a judge. This was previously a part of “Patriot Act II”, and is now the law of the land. The FBI now does NOT need a court order to access such records, nor does it need to prove just cause. The FBI can acquire these records through an administrative procedure whereby an agent simply states the information is relevant to a national security investigation. And the new law broadens the definition of “financial institution” to include such businesses as insurance companies, travel agencies, real estate agents, stockbrokers, the Postal Service and even jewellery stores, casinos and car dealerships. Commenting on this new law, Rep. C.L. “Butch” Otter (R-Idaho) said, “Expanding the use of administrative subpoenas and threatening our system of checks and balances is a step in the wrong direction.” But I suppose he's just another radical leftist demagogue.

Also of note, Tisbury, Massachusetts, has become the 300th local or state government to denounce the USA Patriot Act, but according to MacDonald apparently they're all a bunch of ignorant, terrorist supporting dupes. And we are supposed to take her word that our constitutional liberties are safe? No thanks.

MacDonald: Why doesn’t Mr. Williams just come right out and say it: he doesn’t think counterterrorism investigations should be conducted in secret. In his world, if the FBI has received a tip about an Al Qaeda cell in Phoenix that is planning to detonate a dirty bomb in Las Vegas, the Bureau should seek a wiretap warrant in open court, with notification to the cell members. If intelligence agents want to search the group’s hard drives, they should inform the cell in advance to give them an opportunity to challenge the search. Court TV could broadcast the legal wrangling between the cell’s attorneys and intelligence agents; legal experts could provide running commentary about the likely scope of the FBI’s investigations.

Left- and right-wing libertarians who whine about the totalitarian secrecy of anti-terrorism investigations are a little late to the game. The Foreign Intelligence Surveillance Act, which created the “secret court” that oversees espionage and terrorism investigations, was passed in 1978; the anti-secrecy forces should have made their case back then. But they would have lost: even the self-righteous members of the Church Committee, puffed up with the post-Watergate conviction that Americans face no greater threat than their own government, conceded the obvious: intelligence operations to pre-empt foreign threats could not be conducted in public. Yes, administration requests to the Foreign Intelligence Surveillance Court for wiretap orders and search warrants for terrorists and spies are made behind closed doors. And Mr. Williams’s alternative would be . . . what, exactly? Osama Bin Laden’s dream team cavorting on CNN? The judges who sit on the FISA Court are regular Article III federal judges temporarily recruited from the district court bench; no Patriot Act hysteric has ever even attempted to argue that they somehow lose their constitutional independence while sitting as the FISA Court.

You bet this court is “not just any regular criminal court we’re familiar with,” in Mr. Williams’ plaint. Of course it’s not: its role is not to adjudicate a prosecution of a crime after it has occurred, but to oversee the pre-emption of a future threat. Intelligence investigations are the most potent weapon in the war on terrorism, and in that war, speed and secrecy are of the essence. The full panoply of due process rights, such as open trials, are appropriate when the government wants to put someone in prison for a previous crime, not when it is seeking to anticipate an enemy attack. Or does Mr. Williams dispute that the United States is facing an enemy dedicated to the country’s destruction?

As usual, Mr. Williams mischaracterizes Patriot Act provisions. Section 213, the sneak and peak section, does not allow the government to forever conceal that it has conducted a search; it requires notice after a reasonable period of time. Delayed notice of a search is not a new “vast expansion of government power,” but one granted by appellate courts for decades. The documents available to the government under section 215 are not private and thus not governed by the Fourth Amendment’s warrant requirement. Mr. Williams should blame the Supreme Court for that, not the drafters of the Patriot Act; the Supreme Court has long held that records in third party hands enjoy no constitutional privacy protections.

Williams: Apparently, in Ms. MacDonald's world, American citizens have no rights that prosecutors or investigators need respect, especially if they claim the magic words, “war on terror.” But you don't have to be a terrorist or suspected of terrorist activities. The law was written to apply to all crimes, not just those related to terrorism. As a result, we are closer to a totalitarian state than ever before in our history. Thankfully there is opposition from all corners of the political spectrum to the kind of “police state uber alles” tactics advocated by repression apologists like MacDonald.

Regarding the Foreign Intelligence Surveillance Act and the secret court that operates under it, a recent report to Congress states that 1724 applications for search or surveillance were approved by this court in 2003. Only four applications were denied, although two of them were later revised and approved. There is no requirement for probable cause needed, not does an investigation have to be terrorist-related. This number has nearly doubled since 2001 and now surpasses the number of wiretaps sought by law enforcement in traditional criminal cases. The Patriot Act broadened the government's ability to seek warrants through this secretive 11-member court and investigators have taken full advantage of the new provision. FISA applications have grown so dramatically that a recent report by the commission investigating the Sept. 11 attacks warned that a bottleneck had developed at the Justice Department, where federal prosecutors had fallen behind in processing the deluge of applications. According to Timothy Edgar, legislative counsel for the American Civil Liberties Union, most government surveillance today is supervised by this secret court. But of course, according to the repression apologists, we are supposed to trust that this secret spy court has our best interests at heart, and it's for our own protection. In MacDonald's Wizard of Oz world we are told to pay no attention to the men behind the curtain.

58 lawmakers, including 6 Republicans, have co-sponsored legislation sponsored by Rep. Butch Otter (R-Idaho) in the House that would rein in aspects of the Patriot Act. In the Senate, 4 Republicans have joined 12 Democrats in co-sponsoring similar legislation introduced by Sen. Larry Craig (R-Idaho), who is a former head of the Republican Policy Committee and a close friend of Attorney General John Ashcroft. Despite Macdonald's attempts to portray them as such, these folks are not anti-American jihadists bent on the country's destruction.

Ms. MacDonald is also mistaken about Section 213. It gives the government the power to get records from any business without showing that the suspect is a terrorist, a criminal or even a foreign agent. This includes library records and bookstore purchases. The “sneak and peek” provision, which allows the government to delay notification of searches whenever the government says that prior notice would undermine the criminal investigation, gives the government the leeway to say this in every case. How will anyone ever be able to say otherwise? I'll leave it to Frontpage readers to determine for themselves just how benign and harmless these provisions are. Evidently, everything is peachy-keen in MacDonald's rose-colored view of our new police-state apparatus.

FP: Ms. MacDonald, let’s crystallize the main issue: do you think it is deniable that the Patriot Act has played a vital role here at home in terms of homeland security?

MacDonald: The only way to pre-empt the next terrorist attack is through intelligence. We need to find out who the sleeper cells are and what they are planning. The Patriot Act made gathering and interpreting intelligence a whole lot more rational. Before the act, two FBI agents working on the same Al Qaeda squad in New York, say, couldn’t speak to each other about terror intelligence if one were designated an “intelligence agent,” and the other a “criminal agent.” This “wall” between intelligence and criminal terror investigators, built in large part by Attorney General Janet Reno, created paralysis in the FBI, and prevented the possibility of foiling the 9/11 plot. The wall had no basis in statute or the Constitution; the Patriot Act’s greatest contribution to national security was to tear it down.

Williams: Attempts to find out how the new surveillance powers created by the Patriot Act were implemented during their first year were not fruitful. In June 2002 the House Judiciary Committee wanted the Department of Justice answer questions about how it was using these new powers. The Justice Department essentially refused to describe how it was implementing the law. Due to this lack of accountability to Congress and the public, there's really no way to tell just what has been accomplished or what abuses have been occurring. But signs of abuse are present. According the Office of the Inspector General's Report on the Implementation of the USA Patriot Act, from December 16, 2002, through June 15, 2003, a six-month period, they received 1,073 complaints with a Patriot Act-related civil rights or civil liberties connection. Even more ominously, at the behest of an FBI Joint Terrorism Task Force, a federal judge in Iowa recently ordered Drake University to hand over records on an antiwar forum along with issuing subpoenas to four activists who attended the forum. Drake University employees were forbidden from commenting and federal prosecutors also refused comment. After vocal public outcry, all subpoenas were withdrawn, but it was an frightening indicator nonetheless.

Additionally, Viet Dinh, one of the chief authors of the Patriot Act, has been critical of the government's handling of the case of Jose Padilla, an American citizen deemed an “enemy combatant” who has been held incommunicado since he was arrested in May of 2002. No charges have ever been filed and until February of this year, Padilla was allowed no outside contact. Almost 2 full years. Padilla's case is now before the Supreme Court, but Dinh has stated that “I do not necessarily agree with the position the president and the U.S. government is adopting with respect to military detention.” Dinh further stated that “There must be an actual process or discernible set of procedures to determine how [enemy combatants] will be treated” and that “the government hasn't established any framework for permitting Padilla to respond, and that it seems to think it has no legal duty to do so.”

Even more telling is that these new powers are being used in cases that have nothing to do with terrorism. The Patriot Act has been used in a case against a Las Vegas strip-club baron in a bribery case regarding a lap dance ordinance. Newsweek also reported that Treasury Department figures show the feds have used the Patriot Act to conduct searches on 962 suspects, yielding “hits” on 6,397 financial records. Of those, two thirds (4,261) were in money-laundering cases with no apparent terror connection. One request even came from the Agriculture Department, a case that apparently involved food stamp fraud. These facts should be a cause of concern to all Americans as to how the Ashcroft Justice Department is using these new powers, especially since they are clamoring for even more intrusive and expanded powers.

MacDonald: Mr. Williams is a perfect spokesman for the anti-Patriot Act crowd: He doesn’t know what’s in the act. The military is holding Jose Padilla pursuant to the President’s powers under Article II of the Constitution and a Congressional authorization; the Patriot Act has nothing to do with the case. Ditto the investigation of the Iowa protest at Drake University: the FBI obtained subpoenas to investigate the crime of unlawful entry onto a military base—in this case a National Guard camp; the Patriot Act never came into play.

It’s difficult to imagine what Mr. Williams’s standards are for “answering questions” about the Patriot Act. He claims that the Justice Department “essentially refused to describe how it was implementing the law,” in response to a House Judiciary Committee query. Let’s see. . . . DOJ’s 60-page response listed, inter alia, the number of delayed notice search warrants requested (47) and the number granted (47); the grounds for those 47 requests and the length of time notice was delayed; the number of emergency FISA surveillance orders obtained by the FBI; the number of suspected terrorists charged with crimes under the Act (200) and the number convicted to date (nearly 100); the number of times courts have granted search warrants for use outside their district . . . . I could go on, but that would take 60 pages. It’s hard to know what else Mr. Williams wants to know about the Act, unless he thinks the public, including terror suspects, should know the identities of suspected terrorists under surveillance.

Mr. Williams cites as an “ominous sign” of Patriot Act abuse the 1,073 complaints filed with DOJ’s Inspector General. He neglects to mention that according to the Inspector General, only 34 of those complaints appeared to state a claim even remotely related to the Patriot Act, and only two of those 34 have been substantiated. Both involved verbal taunts of detainees by prison guards—deplorable, to be sure, but hardly a core Patriot Act issue.

The FBI did use section 314 of the Patriot Act in a Las Vegas bribery investigation. For that, Mr. Williams can thank Democratic Senator Paul Sarbanes, who insisted that the section be included in the Patriot Act without restriction to terror investigations. Section 314 can be used in criminal cases against money-launderers; there was no abuse of the act in the Las Vegas inquiry, nor in any of the other money-laundering investigations Mr. Williams cites.

The notion that the Patriot Act lacks “accountability” is ludicrous. Never before in the history of war has a government taken such care and spent such money to safeguard the rights of aliens, immigrants, and enemy-combatant suspects. The Act mandates ongoing review of alleged civil-rights abuses by Justice Department employees; in response, DOJ’s Inspector General created a Special Operations Branch staffed by an FBI Special Agent in Charge, two assistant Special Agents in Charge, and two investigative specialists. This bureaucracy doesn’t come cheap. In six months alone, the Special Operations Branch spent nearly half a million dollars advertising for civil-rights complainants on TV, radio, and in newspapers, and then investigating the resulting complaints. The Justice Department’s Civil Rights Division has its own effort, the so-called Initiative to Combat Post-9/11 Discriminatory Backlash and a National Origin Working Group.

Yet for all the efforts of these bureaucrats and advocates to find abuse, no one has. California Senator Dianne Feinstein declared late last year at an oversight hearing: “I have never had a single (verified) abuse of the Patriot Act reported to me. My staff e-mailed the ACLU and asked them for instances of actual abuses. They e-mailed back and said they had none.“

Williams: Regarding Jose Padilla, Drake University, etc., Ms. MacDonald overlooks my earlier caveat which stated, ”The Patriot Act should be viewed as a metaphor for all the civil liberties violations that are currently occurring.“ To further amplify, the Patriot Act has become a symbol for a broad range of concerns about this administration's abuse of civil liberties in the war on terrorism, but that don't stem specifically from the Patriot Act. Rather, they are exemplified by my earlier examples, and also Bush administration initiatives such as the mass preventive detention campaign by John Ashcroft, which has led to more than 5,000 foreign nationals being detained. These abuses are not happening in a vacuum and I believe it's important to view them as an entire package.

Ms. MacDonald also needs to broaden her inquiries regarding Patriot Act abuses, the ignorance of Diane Feinstein notwithstanding. David Cole of the Center for Constitutional Rights argued a case in January, in a federal district court in California, [Humanitarian Law Project v. Ashcroft] in which a provision of the Patriot Act was declared unconstitutional that makes it a crime for people to provide expert advice or assistance to any organization that has been designated a terrorist organization. In this case, the Patriot Act made no distinction between advocacy of human rights and advocacy of terrorism, and was ruled unconstitutional. And the ACLU has filed suit challenging the constitutionality of parts of the Patriot Act, and the resultant abuses, but the fact that a lawsuit existed was kept secret under provisions of the Act itself !! A heavily edited version of the lawsuit was finally released on April 28. But I'm sure this is no cause for alarm among the repression apologists, who seem content skipping merrily off to the gulag.

The Patriot Act is a panoply of bad laws which invite and encourage abuse. You do not have to be suspected of any terrorist activity to fall victim to its provisions. In summation:

--Section 213 allows police to avoid giving prior warning when searches of personal property are conducted.
--Section 215 gives the government the power to get records from any business without showing that the suspect is a terrorist, a criminal or even a foreign agent. Also allows the government to engage in secret searches of your home, your computer and your financial records.
--Section 216 permits all phone calls to be recorded without a warrant or notification.
--Section 218 removes the probable cause requirement for wiretaps and searches whenever the government claims a significant foreign intelligence interest in a criminal investigation.
--Sections 411 and 412 give the government power to deny entry to foreign nationals based on pure speech and to deport foreigners, including permanent residents, based on innocent association with any group that the attorney general doesn't like and puts on a blacklist. They also allow the attorney general to lock up foreigners without charges and without making a showing to a court that they are dangerous or a risk of flight.
--Section 802 authorizes the government to freeze an organization's and individual's assets on the basis of secret evidence that they have no opportunity to confront or rebut.

There are fundamental constitutional problems with the Patriot Act and there is opposition to it from across the political spectrum. It should be modified to address the concerns enumerated above, or it should be allowed to sunset into oblivion along with Ashcroft and Bush.

MacDonald: Mr. Williams still hasn’t answered the key question: How do you investigate terrorist planning in public? His core objections are to Patriot Act provisions that allow the government to surveil and gather information on terror suspects in secret. I remain sincerely puzzled by what he thinks the alternative is. Either Mr. Williams is unable to grasp the difference between the prosecution of a previous crime and the pre-emptive investigation of terrorist activity, or he simply rejects the idea that the United States faces an ongoing threat of destruction from Islamic madmen.

And it is in fact secrecy itself that Mr. Williams condemns, for the provisions for delayed notice, etc., that he objects to are otherwise carefully regulated with judicial oversight. The Patriot Act is no blank check to the government to spy on citizens at will; it is shot through with traditional due process requirements such as judicial review.

Thank heavens that requests to the Foreign Intelligence Surveillance Court for anti-terror warrants have increased since 9/11. Or does Mr. Williams think that the government was adequately pursuing the terror threat before then? Imagine the hue and cry from Administration critics if, after the next attack, it came out that the government had not stepped up its anti-terror work after 9/11. The fact that Mr. Williams finds the increase in FISA activity prima facie evidence of abuse adds to the impression that, like Bartleby, he would simply prefer not to acknowledge the Jihadi death sentence against Americans, so he can concentrate instead on more politically correct villains such as George Bush and John Ashcroft.

He gives away the game, in fact, with his reference to groups “that the attorney general doesn’t like,” in his denunciation of section 411 of the act. Those “groups”--which Mr. Williams presents as simply the object of John Ashcroft’s pique--are terrorist groups or, what amounts to the same thing, groups that have provided material support for, or publicly endorsed, terrorism. Section 411 allows the government to bar entry to foreigners associated with such groups. Mr. Williams’s snide rewriting of section 411 is emblematic of the moral shallowness of administration critics, who have the luxury of pretending that terrorism is just a figment of Mr. Ashcroft’s imagination. Not only is it essential to national security to bar admission to terror ideologues, it is fully constitutional. Foreigners have no 1st Amendment rights; if we wanted to, we could deny entry to anyone caught reading Discipline and Punish.

It’s no surprise, by the way, that the FISA court approves most anti-terror warrant requests, since they require voluminous documentation and bureaucratic vetting before they can even reach the court.

Mr. Williams’s final roster of Patriot abominations consists of powers that long preceded the act—such as phone number recording—and that have been either updated to the internet age, or tweaked in light of what 9/11 taught us about terrorists. Odd that he did not object to these powers when they were drafted or administered by Democrat administrations. Mr. Williams is indeed joined in his crusade by right-wing libertarians. Both share the belief that in the case of a conflict between a new reality and your dearest convictions--such as that the U.S. government is always the biggest evil facing U.S. citizens--you can just ignore the reality and proceed with protest as usual. Fortunately, the President and Congress recognized that the new reality of terror attacks on American soil requires that the country’s intelligence-gathering capacities be maximally effective, and they passed a law that is both constitutionally sound and long overdue.

FP: Heather MacDonald and Joe Williams thank you, our time is up. We appreciate you joining Frontpage Debate today. We hope to see you again soon.

Original Source: http://frontpagemag.com/readArticle.aspx?ARTID=12974

 

 
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