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Saturday, December 17, 2005

The senatorial Patriot Act debate
The headlines read Senate blocks Patriot Act vote: Concerns over civil liberties cited; filibuster could let laws expire Dec. 31.

Most of the debate on the PATRIOT Act is based on the premise, as the above link states, "that the government went too far in empowering law enforcement after the Sept. 11, 2001, domestic terror attacks". PATRIOT is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001'. I will refer to it as the Patriot Act. You can read the original text of the act at PATRIOT Act

Last February I attended a lecture by Prof Viet Dinh of the Georgetown University Law Center, one of the people who actually put together the Patriot Act, titled USA Patriot Act and Civil Liberties Since 9/11. As Prof. Dihn emphasized, the purpose of the Patriot act was to treat terrorism as a crime. The Patriot Act uses a deliberate strategy in terrorism investigation: to interdict and prosecute early, based on the premise that no one has a constitutional right to violate the laws of this country.

Nearly all the legal tools on the Patriot Act had been used in crime investigations in the country well before 9/11 but had not been applied in terrorism-related investigations. A legal wall prevented law enforcement agencies from sharing information with the intelligence community.

In Prof. Dinh's own words, "As a counterterrorism strategy, the Justice Department saw their task as one of domestic law enforcement with probable cause, and the avenue would be to develop a strategy to discover information on terrorist plans, while making sure there's proper judicial supervision". The means for this would be
  • to exact the same level of judicial supervision and probable cause,
  • de-anonimize internet and virtual communications,
  • and the use of multi-jurisdictional efforts for search warrants.
The questions he asked during the writing of the act were
  • Is it operationally necessary
  • Is it wholy consistent with the Constitution
  • What unintended consequences can be mitigated
As Prof. Dihn well knows, a lot of the brouhaha over the Patriot act has come about because it has made people realize how much power the government has. Central to that issue is the fact that we are at war.

In today's NY Times, Rudolph Giuliani explains,
The central provisions of the Patriot Act allow law enforcement and the intelligence community to share information. This might seem elementary, but for years law enforcement had been stymied by a legal wall that prevented agencies from sharing information. For four years now, inter-agency collaboration, made possible by the Patriot Act, has played an important role in preventing another day like Sept. 11. The act's provisions helped make possible the investigations in Lackawanna, N.Y., and Portland, Ore., in which 12 people were ultimately convicted for attempts to aid Al Qaeda and the Taliban.
Giuliani continues,
It is simply false to claim, as some of its critics do, that this bill does not respond to concerns about civil liberties. The four-year extension of the Patriot Act, as passed by the House, would not only reauthorize the expiring provisions - allowing our Joint Terrorism Task Force, National Counterterrorism Center and Terrorist Screening Center to continue their work uninterrupted - it would also make a number of common-sense clarifications and add dozens of additional civil liberties safeguards.

Concerns have been raised about the so-called library records provision; the bill adds safeguards. The same is true for roving wiretaps, "sneak and peek" searches and access to counsel and courts, as well as many others concerns raised by groups like the American Library Association and the American Civil Liberties Union.
And then there's one question: The legal wall that existed between law enforcement and intelligence agencies cost thousands of lives. Do we want to regress to that?

While listening to all the overpoliticized debate on the Patriot Act, bear those facts in mind.

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