The Corner

More Feingold

Okay, I meant to do this yesterday, but I got sidelined. In his letter Feingold makes the following statement:

In addition, I want to note that Goldberg repeats a common misperception that the Patriot Act merely gives the government powers to investigate terrorists that it already had to investigate mobsters or drug kingpins. This is incorrect. For one thing, terrorism was a crime before the Patriot Act was enacted and the same tools were available to investigate terrorist crimes as were available to investigate any other crimes. For another, the Patriot Act significantly expanded the government’s power to obtain business records and eavesdrop on conversations in terrorism investigations without the protections for law-abiding citizens that are in place in other investigations.

Me: I am pretty sure this is nonsense. First of all, the fact that terrorism “was a crime before the Patriot Act” is a total non-sequitur. Who said it wasn’t? What does that mean? And then there’s the second part of that sentence, “the same tools were available to investigate terrorist crimes as were available to investigate any other crimes.”

I look forward to someone, perhaps Senator Feingold himself, to explain how that isn’t simply wrong. I take it on good faith that he has something in mind when he says that. But I can’t tell you how many lawyers I’ve talked to and how many places I’ve read — like the 9/11 Commission report — which seem to indicate otherwise. Heck, my wife worked for Ashcroft for his entire tenure as AG and I’m pretty confident that the Attorney General and his staff were under the same impression as me. The same tools may have been “available” but that is not the same thing as saying they were as “readily available.” The opportunity for me to own the New York Times is “available” to me. But it’d be more available if I had a couple billion dollars. The hoops the FBI had to jump through in order to investigate terror cases are legendary. And for Senator Feingold to claim that they weren’t a big deal at all suggests to me that he thinks investigating terror cases should be more difficult than it is under the Patriot Act and, comparatively, more difficult than run-of-the-mill criminal cases.

Rather than go through all this, though, I’ll just post two emails. The first is from a lawyer on the Hill in response to Feingold’s email:

This is bulls**t. Terrorism was a crime before the Patriot was enacted, but intelligence officers could not share information with criminal investigators, they could not obtain multi-point wiretaps to conduct intelligence investigations (something which mob investigators could do), and they could not employ subpoenas to obtain information for intelligence investigations (something that any criminal investigator can get once a grand jury is convened). The Patriot Act did expand authority to subpoena business records and tap phone lines for terrorism investigations. Both of these Patriot authorities, however, require prior judicial approval before intelligence investigators can either issue a Patriot business records subpoena or tap a phone. It the latter case, this makes this authority more restrictive of intelligence investigations than it is of many other types of investigations that one would be hard pressed to categorize as more important than terrorism investigations. Investigators can issue subpoenas without judicial preapproval in order to obtain records for an investigation relating to child pornography, drug enforcement, health-care fraud, and violations of the minimum wage laws. Literally, if we knew that Muhammed Atta was in the country and had someone working with him, it would be easier to obtain a subpoena to make sure that Atta was paying that individual minimum wage than it would be to determine whether the two were involved in terrorism.

There is no other way to put it: the opponents of the Patriot Act are crackpots. They are living in a world of paranoid fantasies. They develop this image of themselves as bravely fighting against “the system,” and they deny or mentally block out any facts or reality that contradict this vision. This may add a bit of romance to these individuals’ lives, but it should not have any role in formulating public policy in the war against terrorism.

And, second, here’s an email from a lawyer friend with intimate knowledge of these issues. While preparing the column which offended Senator Feingold, I asked the lawyer about this very question (whether the Patriot Act gave the government the same powers , for the most part, that law enforcement had for drug dealers and mobsters). Here was his answer:

Main powers govt has for national security under Patriot that it did not under ordinary crim law are sharing intel and gag orders. Now, for example, grand jury information can be shared with the intelligence community (crim rules used to bar this without a court order) and intel from national security (FISA) wiretaps can be shared with criminal investigators and prosecutors (which, though it really just restores what was the law in the first place, reverses not only the internal DOJ “wall” regs but also the misconception of the FISA court that such sharing was impermissible absent a showing that intel-gathering had been the “primary purpose” of the FISA tap). The above does not go so much to acquisition of information as to what the government can do with the information once it has been acquired. In terms of acquisition, Patriot really does not do anything that couldn’t be done before under the crim law. For example, Section 215 (the so-called “library records” provision that is really a provision for compelling production of business records and other tangible evidence — and doesn’t explicitly mention “library records” although they are included) just extends to national security investigators the powers prosecutors and criminal agents already had through grand jury and trial subpoenas. National Security Letters (NSLs) existed before Patriot, and although Patriot broadened their use somewhat, they are not really different from administrative subpoenas (i.e., subpoenas the FBI can issue on its own w/o DOJ or Court approval) which have long existed in connection with, for example, drug investigations (and which the Clinton admin established for investigations of health care fraud). Sneak-and-peek search warrants and roving wiretaps also existed long before Patriot. Patriot, however, does curb the First Amendment rights of those from whom national security information is demanded by subpoena or NSL. These demands impose a duty of non-disclosure — the recipient may go to court and try to quash or modify the subpoena, but he or it (the recipient is usually a corporation, like a bank or travel agency) may not disclose to anyone (other than an attorney or officials whose assistance is necessary for compliance — all of whom are also gagged) that an investigation is ongoing, that a demand for information has been made, or how it has been satisfied. Last minute amendments before passage of the Patriot renewal in March provide for a process of challenging the non-disclosure provision — but these gag orders are pretty much unchallengable for the first year and very hard to undo after that. (In point of fact, almost no one but a civ-lib zealot would ever challenge the gag orders — most recipients are 3d party holders of transactional records like banks and phone companies that have zero interest in talking about government investigations.)


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