Debating the PATRIOT Act

Sec. 215: Amends FISA (already unconstitutional) to make disclosure of FBI surveillance or searches to those being investigated a crime.

First of all, I’d be curious as to exactly why you see the FISA as unconstitutional. But, since this is a debate on the PATRIOT Act, I’ll leave that alone for now.

The section you reference seems to have a lot of people with no legal background up in arms, not realizing that it has long been a staple of US jurisprudence. As a US Army Counterintelligence Agent, beginning in 1983 (a few days before the PATRIOT Act came into being), much of what I did was actually covered by Title 18 of the United States Code. If you look at Title 18, Part 1, Chapter 121, subsection 2705, as well as at Chapter 73, subsection 1510, paragraph (b), you will see that there are long standing rules about disclosure of criminal investigation to the subject of those investigations. You can find the USC at the Cornell Law School website.

There have been challenges to those laws, but the Supreme Court has upheld the constitutionality of those prohibitions. And since constitutionally, the SCOTUS has been designated as the agency with the responsibility of interpreting the Constitution, and determining the constitutionality of laws, these laws are by definition constitutional. And these laws have been in existence since at least 1983, when I first became a CI Agent. So, there is nothing really new about section 215 at all. At most, it only slightly expands what has already long been a staple of US jurisprudence. And I’m not really even sure that’s true. I seem to recall that there were legal decisions that made it illegal for any record holding agency to notify the subject of an investigation that their records were examined. In any event, the illegality of third party notification is already long settled US case law.

Such prohibitions only make sense. Records reviews, searches, surveillance, and the like are investigative tools, nothing more. For some, a warrant is required, while for others, no warrant is required (see expectation of privacy). But, for most investigations, they are only a part of the job. And in most cases, they are not the end of the investigation. However, if the subject of the investigation is informed of law enforcement interest before the investigation is complete, at the very least the subject will become far more circumspect in his/her actions. At worst, the subject may flee to complete the contemplated criminal activity elsewhere, or under greater cover. When dealing with terrorism, such flight could be more than disastrous.

This highlights a problem I see with many who claim the PATRIOT Act is unconstitutional. Such claims demonstrate that the claimant lacks historical knowledge of US law, and has a limited understanding of the Constitution, and the rules and laws surrounding the determination of what is and is not constitutional. In the end, the SCOTUS is, by constitutional law, the ultimate arbiter of what is or is not constitutional. Therefore, whatever decision they render is constitutional. You may or may not like their decision. They may or may not be wrong, and the decision may or may not later need to be overturned. But, by definition, any decision they render must be constitutional.

People like to think the Constitution is complex, it isn't.

Could you please reference me to the specific finding in Doe v Gonzalez? Seems to me the 4th Amendment challenge there was the use of unreasonable force in executing a warrant. In fact, the specific raid challenged in the case occurred prior to the enactment of the PATRIOT Act, and therefore the act would not be applicable. The court would have to find constitutionality or lack thereof based on the laws in force at the time of the raid.

Could you please reference me to the specific finding in Doe v Gonzalez? Seems to me the 4th Amendment challenge there was the use of unreasonable force in executing a warrant. In fact, the specific raid challenged in the case occurred prior to the enactment of the PATRIOT Act, and therefore the act would not be applicable. The court would have to find constitutionality or lack thereof based on the laws in force at the time of the raid.

As to FISA, it deals specifically with the government's power to conduct surveillance on foreign powers and their agents. Like it or not, the Constitution applies only to US persons. The legal definition of US person includes native and naturalized citizens, legal resident aliens, and certain corporate entities. The Constitution does not apply to foreign powers or to those in the US illegally, which only makes sense. Otherwise, deportation of illegal immigrants would be a legal process, further jamming up the US court systems. POW's would also be affected, allowing them to make writs of habeus corpus.

Wiretaps and surveillance conducted under FISA in the US are under the jurisdiction of the FISA court, and are subject to warrants.

Here lies my concern with the Patriot act; the government using it to catch career criminals and not terrorist. Wire tapping and spying and what not on mob bosses, who cares well eventually they will start turning their spy network toward the unwashed masses to silence those who speak out against these agencies. I do not trust any government with my freedom, they squander our rights to further their agenda and gaining more power is always the goal of BIG Governent. Unconstitutional, I don't care if it's constitutionally okay because it's immoral. If they can't catch and track terrorist or criminals using current laws then they aren't doing their job. I don't think it's a stretch of my imagination to assume future leaders would pluck their critics off the street or blackmail opponents using the Patriot act as the source of information. It's a blight on the US and it's assertion that it's a democracy.

Could you please reference me to the specific finding in Doe v Gonzalez? Seems to me the 4th Amendment challenge there was the use of unreasonable force in executing a warrant. In fact, the specific raid challenged in the case occurred prior to the enactment of the PATRIOT Act, and therefore the act would not be applicable. The court would have to find constitutionality or lack thereof based on the laws in force at the time of the raid.

As to FISA, it deals specifically with the government's power to conduct surveillance on foreign powers and their agents. Like it or not, the Constitution applies only to US persons. The legal definition of US person includes native and naturalized citizens, legal resident aliens, and certain corporate entities. The Constitution does not apply to foreign powers or to those in the US illegally, which only makes sense. Otherwise, deportation of illegal immigrants would be a legal process, further jamming up the US court systems. POW's would also be affected, allowing them to make writs of habeus corpus.

Wiretaps and surveillance conducted under FISA in the US are under the jurisdiction of the FISA court, and are subject to warrants.

Here lies my concern with the Patriot act; the government using it to catch career criminals and not terrorist. Wire tapping and spying and what not on mob bosses, who cares well eventually they will start turning their spy network toward the unwashed masses to silence those who speak out against these agencies. I do not trust any government with my freedom, they squander our rights to further their agenda and gaining more power is always the goal of BIG Governent. Unconstitutional, I don't care if it's constitutionally okay because it's immoral. If they can't catch and track terrorist or criminals using current laws then they aren't doing their job. I don't think it's a stretch of my imagination to assume future leaders would pluck their critics off the street or blackmail opponents using the Patriot act as the source of information. It's a blight on the US and it's assertion that it's a democracy.

FISA demands warrants be obtained, though it demands they be obtained AFTER a search has been conducted. If it only applies to foreign entities, why would we need warrants?

Sec. 213: Delays the disclosure of a warrant until "a reasonable period of its execution". Who decides what's reasonable?

`(b) DELAY- With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if--
`(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);
`(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and
`(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.'.

Sec. 106: Unconstitutionally allows the president to use military force without Congressional Oversight and strips non-citizens of their Constitutional rights.