Habeas and Cert.-worthiness
Federalism is an Individual Right

Depends on how you Define Abuse

I hate the PATRIOT Act.  Well, not really.  Mostly, I hate talking about the PATRIOT Act.  So few people have read it, and thus, the PATRIOT Act is - depending upon whether you ask readers of the Times or viewers of FoxNews - downright evil or downright saintly.

Professor Kerr often sensibly defends the PATRIOT Act.  But his recent remarks either show that he's way off, or that prosecution- and defense-minded people will never agree on what abuse means.  Take a recent DOJ report.

Prof. Kerr blogged approvingly of a recent DOJ Office of the Inspector General report on PATRIOT Act abuses and noted:

These days, the DOJ OIG report comes and goes with no fanfare or press attention. Why? Because the DOJ isn't finding much in the way of abuses, and isn't finding anything at all related to the Patriot Act.

Ken Lammers humorously impeached the report: "Fox: All Safe in PATRIOT Act  Hen House."  But he didn't list any PATRIOT Act abuses.  There's a recent story that I think is a clear-cut abuse of the PATRIOT Act.  N.J. Man Indicted in Laser Beam Case.

David Banach had recently purchased a laser pointer.  To demonstrate to his daugher how it worked - and perhaps to demonstrate to his daughter that he lacked any common sense - Mr. Banach pointed the laser at airplanes.  Utterly silly and downright stupid?  Yes.  An act of terrorism?  The FBI didn't think so:

The FBI acknowledged the incident had no connection to terrorism but called Banach's actions "foolhardy and negligent."

When agents went to interrogate Mr. Banach, he further evidenced his lack of common sense by not only talking to the agents, but by lying to them.  Quite stuipid.  And quite felonious.

But instead of charging Mr. Banach will a 1001 count (lying to federal agents is a felony), the government has charged him with anti-terrorism provisions of the PATRIOT Act.  The Indictment reads:

did knowingly and willfully interfere with, disable, and incapacitate a driver, captain, and person, namely aircraft pilots, while those aircraft pilots were employed in operating and maintaining a mass transportation vehicle, namely the Aircraft, with reckless disregard for the safety of human life. 
In violation of Title 18, United States Code, Sections 1993(a)(5), 1993(b), and 2.

Does anyone with any common sense or common decency really think Mr. Banach was trying to disable an airplane?  Although I agree that someone who pointed a laser beam at an airplane while goofing off with his daugher and lied about it should face a 1001 prosectuion, I think that charging him under an anti-terrorism law is clearly abusive. 

The guy is more like Bozo the Clown than Osama bin Laden.  And the law should be able to charge Bozo and Osama appropriately.  Charging Mr. Banach under the PATRIOT Act is abusive.  Obviously, the Department of Justice would disagree. 

So then, how can I trust a report investigating PATRIOT Act abuses when we can't even agree on what abuse means?