The point is that laws passed for one purpose are often used for other purposes not originally intended (RICO, anyone?). . . . In this case, the Patriot Act and the general increased willingness to defer to law enforcement have not to my knowledge led to many arrests of terrorists but have been used for all manner of other purposes.
Kerr says that "this response sets up a bit of a straw man: the idea that the Patriot Act was designed solely to arrest terrorists, with the apparent implication being that any use of the Patriot Act in criminal cases is somehow illegitimate or abusive." (emphasis added).
It's no straw man. Tabarrok's point was that the Patriot Act was adopted on false pretenses. Namely, we were told that to fight terror, law enforcement needed the Patriot Act. If you don't believe me, then look to the law's official title: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.
It's certainly legitimate for law enforcement to use all tools available when fighting crime. But general crime-fighting was not at issue during the debates. Instead, law enforcement said that the Patriot Act's tools were needed to fight terror. When those tools are used to spy on war protestors, we have a right to be suspicion of the Patriot Act's supporters. It is a classic game of bait and switch.
What would have happened if a Senator or Representative had said, "Let's go with a modified bill that would allow law enforcement to use these provisions only when investigating certain terrorist cases"? Law enforcement (and probably Kerr?) would have said: Those liberals won't give us the tools we need to fight terror! They support terrorism! So to say that the Patriot Act was merely adopted as a generally applicable amendment to the United States Code is laughable at best and disingenous at worst.
Kerr then writes: "As I have written elsewhere, many of the provisions enacted into law in the Patriot Act were proposals relating to criminal law that had been considered and debated in Congress since the Clinton Administration."
Right. Debated and lost. That is the difference. Law enforcement used terrorism as an excuse to obtain their Chritmas list. Law enforcement would have screamed bloody murder had the scope of the Patriot Act been narrowed.
Kerr further writes: "Many of the criminal law provisions are dual-use: they can be used in terrorism investigations, but can also be used in routine criminal investigations."
But I'm back to the same point, namely that law enforcement officials wanted the Patriot Act long before a terrorist attack. Did they use 9/11 to get their wish list? If so, then what does that say about them? What kind of person sells life insurance at a funeral? What kind of lawyer has a client sign a retainer agreement when the client is still injured and not fully conscious? Just because something is legal doesn't make is moral.
Finally, Kerr writes: "Because there are lots more criminals than terrorists, and criminal cases tend to be much more public than terrorism investigations, it shouldn't be suprising that we hear more about the Patriot Act in criminal cases than in terrorism cases."
I don't think the issue is whether the Patriot Act is bad qua bad. If we had more virtuous people at DOJ, I would support the Patriot Act. Most of its provisions make good sense. Why should an AUSA be forced to apply for duplicative warrants. Before the Patriot Act, cops who had probable cause to believe I was using my email to commit crimes had to apply for a warrant to search both my email account and my email account's server. That's a really stupid requirement. If there is probable cause to believe my email is an instrumentality of crime, then the Constitution isn't offended when you use one - rather than two - search warrants to obtain access to it. It's like saying you need two warrants to search a dresser in my house when you have PC that my dresser contains narcotics. One warrant is good enough.
And law enforcement is its own worst enemy when it comes to the Patriot Act. For example, law enforcement personnel were dispatched to snoop at a student meeting of the National Lawyers Guild. Another law enforcement officer - incognito - attended a law school seminar entitled Islam and the Law: The Question of Sexism?
Now, we all know that the NLG is a radical left wing group - but nothing more. It does not even resemble a terrorist organization. It's a bunch of weirdos who believe that migrant workers deserve rights and that our two party system provides identical presidential candidates. ;^> That it would be infiltrated makes me wonder if state and federal law enforcement are more concerned with stiffling dissent than with fighting terror. After all, when was the last time the police showed up at a National Right to Life organizational meeting? Well, the groups employ similar tactics - loud, obnoxious protests. (That's not to attack their ideology. I just don't like protests). But a far right group is not investigated where as a far left group is. The good news is that no subpoena would be issued for a bloke's library account merely because he was seen holding a copy of Das Kapital. But a lot of people think this DOJ would like to investigate him. A lot of people see the Patriot Act as being one slip down the slippery slope.
Also, the scope of the Patriot Act gives more cause for concern given the extent of our federal criminal code. Even the friggin Heritage Foundation (a right wing group if there is any) is disgusted by the length of the federal criminal code. They started a site, Overcriminalized.com, to examine the injustices our federal code causes. Do you know who Brian McNab is?
David McNab is in prison for 8 years. His crime? He imported lobster tails using plastic bags. Some importation regulations mandated that he use paper bags instead. McNab did not know this was a crime: It violated an act of Congress whereby the violation of foreign law is made a violation of federal law. It didn't matter, though, because it was a strict liability crime. In any event, it was only a misdemeanor. No cause for concern, right?
However, AUSA's used this misdemeanor offense as a basis to charge him with smuggling and money laundering - two major federal crimes, replete with civil forfeiture provisions. They said that since he brought the lobsters in opaque bags (rather than paper bags you can't see through), he was smuggling. They also said that since he used money to buy the lobster tails and pay for fuel and maintanence for his boat, that he was laundering money. (Most people don't know this, but the money laundering statute is really a money spending statute. If you spend $10,000 or more money gained from illegal activites, you are guilty of money "laundering.") Anyhow, Honduas said that they didn't have any suchs regulations regarding lobster tails. Didn't matter. DOJ attorneys still fought successfully to have him sent to prison, where he will set for the next 9 years.
I am not afraid of the Patriot Act just as I am not afraid of guns. But I am afraid of lunatics with guns. And I am afraid of our current DOJ with the Patriot Act.
So as to the Patriot Act, two sober truths emerge. Supporters of the Patriot Act used a traumatic event to obtain a wish list otherwise unavailable. Second, if prosecutors and police would act more responsibly, the Patriot Act would give us nothing to be afraid of.