Monday, March 09, 2009

Defending the indefencible

From a Christian Science Monitor article defending the misnamed USA-PATRIOT Act:
By Nathan A. Sales
ARLINGTON, VA. - Remember when the USA Patriot Act was seen as a common-sense counterterrorism tool? Congress enacted the law shortly after the 9/11 attacks by large bipartisan majorities. It wasn't even close.

And for good reason: The Patriot Act made relatively modest changes to the law as it stood on Sept. 11, 2001. The act simply let terrorist- and spy-hunters use some of the same tools regular cops have had in their arsenal for decades. And it updated existing laws to make them more effective against terrorist threats.
To the extent it allowed what was already done, it was superfluous.
As President Obama forges new security policies, let's hope he keeps the Patriot Act intact. The act works. According to the Justice Department, the Patriot Act helped take down Al Qaeda cells in Buffalo, N.Y. and Portland, Ore. Prosecutors used it to convict a Floridian who pled guilty to raising money for a terrorist group called Palestinian Islamic Jihad. And The act led to the conviction of a man who threatened to torch a Texas mosque.
The Department of Justice has lied and/or grossly overstated various "successes". There's nothing in these prosecutions that could not have been done with standard gum-shoe work.
Despite those successes, the act has become a civil libertarian bugaboo. We've all heard how the act poses a dire threat to liberty and privacy. Federal agents can search your house without ever telling you. The feds can force the phone company to reveal whom you've been calling, and they can rummage through library records to find out what books you've been reading....
They can do so without warrants. "National Security Letters", absent oversight of a judge, are allowed. What more pernicious is that there was no way to find out -- at any time -- how many of these were being used. The recipients could not disclose at all that they'd been served with such. And in the aftermath of the USA-PATRIOT Act, thousands of these issued, and these NSLs were being misused.
... They can even brand you a terrorist and throw you in jail if you get in an argument with a flight attendant.

The daily reality is much less dramatic – and much less frightening.

Let's start with the flight attendants. It's been illegal to interfere with airline crews since JFK was president. The Patriot Act made it a crime to attempt or conspire to do what the law already barred.
Then it wasn't necessary. And occasionally drunks and jerks have been snared in this web, to no good reason. While I agree that drunks and jerks ought to behave themselves, it shouldn't be a federal felony with massive fines and jail sentences to be such.
The basic idea behind the change is prevention. We shouldn't have to wait for a passenger to take a crew member's life before we throw the book at him. We should be able to prosecute the steps he takes along the way – ignoring an order to return to his seat, pulling a box cutter from his pocket, and so on.
Hate to say it, but massive penalties for being a jerk are not going to prevent something. If we're talking hijackers, they aren't really looking too much at how many years they'll serve should they be captured and convicted. If you want prevention, you should do stuff -- you know -- to actually prevent airplane hijackings, like maybe stronger cockpit doors (which had been recommended before 9/11) and sky marshals.

There's more such silly argumentation in the article along the same lines.
Nathan A. Sales is a law professor at George Mason University. He previously served at the Department of Justice (where he helped write the Patriot Act) and the Department of Homeland Security.

Let's be honest: The USA-PATRIOT Act was a poorly thought out, reflexive after-the-fact response , to pretend that we're doing something ... and an attempt to persuade people that, prior to 9/11, it was legal manacles that had prevented the gummint from doing its job properly, not the incompetence of those in the gummint.


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