Debating the PATRIOT Act

@kmchugh,

I can see with the number of people debating the topic, the potential for the water to get muddied is high. So, Freeman, with your kind permission, I will (for now) stick to the points you have raised in our discussion. If you raise a point in another conversation that you wish me to address, please feel free to bring it to my attention.

Let?s start by looking again at section 803, and your specific objection (and yes, I?ll get to the other points you raised earlier, but probably in one or two posts for each point). To quote your objection: ?Requires US citizens to turn in those they know are contemplating terrorist activities, or face fines and a prison term no more than ten years. Violates privacy rights.? Even accepting your broad definition of privacy rights (which I don?t, and can expound on why if you wish), section 803 does nothing like what you suggest it does. Again, section 803 states ?(a) Whoever harbors or conceals any person who he knows, or has reasonable grounds to believe, has committed, or is about to commit, an offense? ? (lists a number of offenses) ? ?shall be fined under this title or imprisoned not more than ten years, or both.?

From a legal standpoint, ?harboring or concealing? requires a much more proactive position than simply having knowledge and not reporting. It implies that the accused actually acted in a manner to harbor a person they knew was about to commit a terrorist act, or proactively helped conceal the prospective action. Such actions would likely also lead to conspiracy charges. In any event, the requirements of section 803 do not violate either the constitution or anyone?s rights.

As to wiretaps, from a legal standpoint, they are considered a type of search. But your point about privacy proves my point exactly. From a legal standpoint, it is the courts, and not I, who have chosen to cherry pick. Whether the ?search? is a physical search of property or a wiretap, the courts have long used the standard of ?expectation of privacy.? For example, you have an expectation of privacy in your own home, and as such, law enforcement cannot conduct a search of your home without a warrant. (I?m assuming here you understand probable cause and how warrants are issued. Avoiding a longer explanation.) However, if you are involved in a traffic stop, your right to privacy is not quite so all encompassing. Suppose that a bank robbery occurred, and the perpetrator was seen fleeing the scene in a white Ford Mustang. Further suppose that officer Smith sees the same white Mustang being driven at 55 mph in a 45 zone. Smith pulls the Mustang over for speeding. Based only on the similarity of the cars, you might argue that Smith has no probable cause to search the vehicle, and you might be correct. However, further suppose that on the seat of the Mustang is a gym bag full of bundled money, as well a .45 auto, which was reported to be the type of weapon used in the robbery. Since these items are on the seat, in plain view, the courts have ruled that the driver of the car has no expectation of privacy. This evidence is in plain view for the officer, and as such, Smith makes an arrest. This is a legal stop, search, and arrest.

That may be a bit simplistic, so consider this. Suppose that I am planning to commit a crime with a group of people. In order to plan that crime, I decide to use my home phone to coordinate with the rest of the group. Now, if the home phone is directly connected to the phone line, so that the only way to listen in is to place a tap on the line, a warrant is required, because I have an expectation of privacy in my telephone conversations. However, what if I have a cordless phone, that transmits from the handset to a base? The frequency over which that phone translates is (or was, I have not looked into this in over 15 years and the law may have changed) part of the public airwaves. The courts have stated that if you use a broadcast device to make a phone call, you have no reasonable expectation of privacy, and therefore no warrant is required to listen to those conversations.

The point is this: There is no constitutional, blanket right to privacy, either stated or implied. At best, the right to privacy is a ?sometimes? right. The courts have ruled in favor of a right to privacy in some cases (i.e. the behavior of two consenting adults behind closed doors) and against such a right in others (i.e. ?smokers? rights). And in no case will the courts allow your exercise of your rights to interfere with the others? exercise of their rights.

Claiming that a requirement to report a terrorist plot violates your right to privacy would not stand up in court. Reporting such a plot would in no way intrude on your right to privacy, unless of course you were somehow involved in the plot. In other words, you are not invested in the plot, you have no stake in the plot, you are simply aware of it. However, even if you could claim your right to privacy had somehow been violated, that violation would be trumped by the violation of rights that occurred to the victims of the plot.

More to follow later.

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@kmchugh,

Indeed....my judgment of this entire affair follows, after many long, long nights of the soul:

BUFFALO POOP.

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@kmchugh,

Freeman15;36889 wrote:

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.

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@kmchugh,

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.

2 Replies

@kmchugh,

kmchugh;37173 wrote:

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.

I'm right on the money actually. The decision in Doe v. Gonzalez (US 2nd Circuit Court of Appeals) held that NSL's (letters requiring ISP's to grant the feds access to their clients accounts and acitivities without telling said clients) were unConstitutional as applied under the Reauthorization of the Patriot Act in 2005. The decision has yet to be appealed to the Supreme Court, and as such is de facto law.

FISA is unConstitutional because it permits searches without warrants, clearly a violation of the fourth amendment. People like to think the Constitution is complex, it isn't.

1 Reply

@Freeman15,

Freeman15;37407 wrote:

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

Nope, it sure isn't. The real danger in the Patriot Act, and FISA are the precendents they set in our willingness to let the government, and the agencies there of take more control of our lives and security under the guise of protecting us from the boogeyman.

1 Reply

@92b16vx,

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.

3 Replies

@kmchugh,

kmchugh;37436 wrote:

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.

This one?

http://www.aclu.org/images/asset_upload_file201_25657.pdf

I. Doe I, No. 05-0570
In Doe I, on cross-motions for summary judgment, the Southern District of New York
held that the then-applicable version of ? 2709 was unconstitutional as applied to John Doe I
under the Fourth Amendment because it was denied pre-enforcement judicial review. Doe I, 334
F. Supp. 2d at 494-511. The Southern District of New York also held that the permanent
nondisclosure requirement (also known as the ?gag order? provision) of the then-applicable
version of ? 2709(c) was unconstitutional on its face under the First Amendment because it
operated as a content-based prior restraint on speech that was not sufficiently narrowly tailored to
achieve a compelling governmental interest. Doe I, 334 F. Supp. 2d at 511-26.
The Reauthorization Act has substantially shifted the legal footing on which Doe I stands.
The parties agree that the Reauthorization Act?s provisions apply retroactively to NSLs issued
before the Reauthorization Act. See Gov?t Ltr. Br. at 2-3; Pls. Ltr. Br. at 1. Because the
Reauthorization Act added provisions permitting NSL recipients to challenge the issuance of
NSLs in court, see 18 U.S.C. ? 3511(a), John Doe I no longer presses Fourth Amendment claims
on this appeal, see Pls. Ltr. Br. at 2 n.2; see also Gov?t Reply Ltr. Br. at 1. Therefore, we deem
them abandoned, rendering this portion of the appeal moot. Accordingly, we vacate the Fourth
Amendment portion of the Southern District of New York Opinion in Doe I. See Russman v. Bd.
of Educ., 260 F.3d 114, 122 (2d Cir. 2001) (?In general, where the appellee has caused the case
to become moot, we vacate the district court?s judgment to prevent the appellee from insulating a
favorable decision from appellate review.?).

1 Reply

@kmchugh,

kmchugh;37436 wrote:

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.

Thanks for clearing that up. Great posts from a person who has actual working knowledge.

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@kmchugh,

It seems to me we are at war.

War is governed by the International Law of War, not the US Constitution. The Law of War is an International Teary which is part of US law when it is ratified. The US did not ratify the portion of the International Law of War that categorizes terrorists and their supporters as combatants.

If one is an unlawful combatant, then they have placed themselves outside the law, of war or of the country in which they operate.

Attempting to use civil or criminal law developed to govern citizens of a society to prosecute war is like using the pointy end of a flathead screwdriver to pound in a ten penny nail.

This war is an extension of the Cold War. Even the proxies are the same. The difference is our mind set.

In the United States, the people who serve the people are the people. If you do not work for the government, you may have a distrust of those who do. Why??? People who work as civil servants are just like you, attempting to do the best they can with the resources they are provided by you. This idea that you can't trust institutions in a civil society is directly from the communist play book to destroy US and western society. Wake up and realize we must trust each other. "Trust, but verify." That is the only way we can win this war.

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@Red cv,

Red;37346 wrote:

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.

Anyone who breaks our laws should be chased down and locked up. This includes illegal immigrants, mafiosos, terrorists and anybody else. IF YOU BREAK THE LAW, YOU GO TO JAIL.

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@kmchugh,

kmchugh;37436 wrote:

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.

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?

1 Reply

@Red cv,

Red and I agree on something at last.

[SIZE="4"] This![/SIZE]

good post Red

Red;37346 wrote:

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.

1 Reply

@wvpeach,

Debating what? This is a price we will someday come to be sorry we allowed!!!. Did you or your family or friends or your state legislators want this. Were we asked?
In this day and age with communications so fast why is this crap allowed. It is another attack upon the people of the middle class and those lower if not all Americans.

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@92b16vx,

92b16vx;37441 wrote:

The Reauthorization Act has substantially shifted the legal footing on which Doe I stands. The parties agree that the Reauthorization Act’s provisions apply retroactively to NSLs issued before the Reauthorization Act. See Gov’t Ltr. Br. at 2-3; Pls. Ltr. Br. at 1. Because the
Reauthorization Act added provisions permitting NSL recipients to challenge the issuance of NSLs in court, see 18 U.S.C. ? 3511(a), John Doe I no longer presses Fourth Amendment claims on this appeal, see Pls. Ltr. Br. at 2 n.2; see also Gov’t Reply Ltr. Br. at 1. Therefore, we deem them abandoned, rendering this portion of the appeal moot. Accordingly, we vacate the Fourth
Amendment portion of the Southern District of New York Opinion in Doe I. See Russman v. Bd. of Educ., 260 F.3d 114, 122 (2d Cir. 2001)

Thanks, I was looking at the wrong Doe. Sorry about that. This decision is not saying the PA, or any portion is unconstitutional. What is happening here is that both parties in the case have come to the court saying "hey, they have amended the PA, and therefore the plaintiff's original complaint is moot." The court agrees, and that portion of the suit is appropriately vacated. No ruling is made on the constitutionality of the unamended version of the PA, and both the parties to the original lawsuit agree that the amended version is constitutional.

Sorry, I am short of time this AM. Gotta get ready for work, but that decision did not hold that the PA, or any portion thereof was unconstitutional.

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@Freeman15,

Freeman15;37513 wrote:

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?

To cover wiretaps needed in the case of a foreign agent or power in contact with US persons.

Edited to add: And to ensure court oversight.

1 Reply

@kmchugh,

Now, back to Freeman’s original cited constitutional objections.

Freeman15;36889 wrote:

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

Usually, in making the application for a warrant, there will be a provision included for delayed notification, and the application will specify the period of time of the delay. At that point, the court determines what is reasonable. Again, this is not something new. Delayed notification of the execution of a search warrant has long been a staple of US jurisprudence, and has been allowed by Title 18 of the United States Code. In fact, section 213 spells out exactly when notification can be delayed, and that such delay must be court authorized:

Quote:

`(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.'.

Such a delay only makes sense, in light of the fact that the execution may not be the end of the investigation. As with third party notification rules, if the subject of an investigation were to learn of the fact that they were under suspicion before the investigation could be completed, the potential for flight is greatly increased.

This is actually a greater protection than afforded by the Constitution, in that the Constitution makes no requirement for notifying the subject of an investigation of the execution of a legally obtained warrant.

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@kmchugh,

Freeman15;36889 wrote:

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

Again, there is nothing new in this provision of the PA. And again, the full text of the actual powers granted to the president are contained in theUnited States Code. This provision has been around since about 1920, and it?s purpose is to allow the president to respond to rapidly developing situations around the world, without the delay of having to go to congress. The action itself is still subject to congressional oversight, as with the current situation, in which the congress voted the nation to war. Once war has been declared, however, congressional intervention becomes limited. The president, as Commander in Chief, has the authority and latitude to conduct the war in the manner s/he sees fit.

We?ve already been over the constitutional rights of non-citizens.

If you read back over my posts on this topic, you find an thread that ties all my responses together: ?this isn?t anything new.? The point is that the PA, while it did make some minor (and constitutionally correct) amendments to existing law, isn?t really anything new. What it did do was take laws already in existence, spread throughout various sections (primarily the USC) of our codes, and consolidate them into a single document. These laws have a long history, and have been upheld by the courts as constitutional.

One other change that the PA made was to define which court had jurisdiction over investigations of international terrorism. Having worked in anti-terrorism, I can tell you that such investigations can be quite complicated. Having one court with jurisdiction greatly streamlines the flow of data and action, in that the time required for lengthy explanations is greatly reduced.

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@kmchugh,

To invoke the War Powers Act requires a declaration of war by congress. There has been no such declaration. The "war" in Iraq is completely illegal and the only reason the "Patriot" Act (a quite traitorous one to be sure) is needed is because the powers that be know they've committed crimes and they're trying to retroactively absolve themselves.

And yes, congress did authorize the use of military force against those responsible for 9/11. That's a police action, not a war, and Iraq had no involvement anyways.

1 Reply

Debating the PATRIOT Act

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