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Tuesday, October 27, 2009

The Patriot Act, Fox News, and Distortions

Last week, I wrote this piece to counter the so called distortions of Fox News. Generally, I think I was accurate however there was one area which I got monumentally wrong. I want to correct the record for many reasons, and not the least of which is that the issue is vitally important. It had to do with number six which involves a segment between Trace Gallagher and Bill Sammon

I tried to minimize the distortion, however there's no minimizing this distortion. I spoke with Julian Sanchez of the CATO institute, and after getting the facts, there's no defending this segment. Both Sammon and Gallagher couldn't have gotten it more wrong. First, let's define the issue.

Sammon and Gallagher talked about three portions of the Patriot Act that they claimed the Democrats were trying to remove. Both also claimed that each of the three played a role in capturing terrorists going back to Zac Moussaoui. The first is entirely inaccurate and the second is dubious at best. The three provisions are the loan wolf provision, roving wiretaps and section 215.

The loan wolf provision allows the Feds, almost always the FBI, to identify someone as a terrorist even though they aren't necessarily part of a terrorist group. In this case, a terrorist doesn't have to be part of Al Qaeda to be treated by FISA as a terrorist and thus have all sorts of Patriot Act applications apply to them. These folks would still have to be citizens of another nation. They would also still have to have contact with folks overseas. The application would apply to someone that came to this country and then became "radicalized" by reading things on the internet, going to a Mosque, or any other way that someone gets radicalized.

So, in other words, someone comes to the country for something legitimate: going to school, a job, etc. Then, they get radicalized and they decide to try and pull off a terrorist attack. In the process of doing this, they make contact with terrrorists, or those with terrorist connections, overseas. Then, this person begins to plot a terrorist attack. Then, such a person would become a "loan wolf". This provision is the only one of the three that is scheduled to be sunsetted. Yet, Mr. Sanchez said that this provision has never been used. This makes sense because it appears the "loan wolf" is much more theoretical than anything rooted in reality. If someone were to get radicalized, they're much more likely to travel to the Middle East and get trained first. Then, they would officially be part of a terrorist group. Furthermore, Sammon and Gallagher suggested that this provision could have been used on Zac Moussaoui. That seems dubious since he was part of Al Qaeda, and Mr. Sanchez said the Senate looked at Moussaoui's situation. At issue was his computer. The Feds never opened it or looked inside. According to the Senate investigation, that happened mostly due to incompetence, rigid federal procedures, and a lack of communication. The Senate concluded that no one needed any new laws to open the computer.

The second provision is the roving wire taps. Traditionally, when you get a warrant to tap some media, you have to be very specific: a certain phone for a certain purpose for instance. We all know that even criminals have become astute. There's pre paid cells, a plethora of email accounts, and all sorts of other available communication for criminals and terrorists. If the Feds had to get a new warrant everytime a criminal or a terrorist changed media (say from one pre paid cell to another) they'd always lose valuable time. So, roving wiretaps don't only make sense in terrorist investigations but even in criminal investigations of say the Mafia. In fact, according to Sanchez, no one wants to sunset this provision. Rather, the provision was, in his opinion and that of Nadler, Feingold, and Conyers, too broad. The changes are unbelievably wonky and frankly, most of it was above my own head. What is important is that no one wanted to sunset this provision. Rather, Nadler, Feingold and Conyers wanted to tighten up the provision so that the standards were more difficult to meet so that the power wasn't as broad. Now, it may be a matter of debate whether the current power is too broad or just fine, but frankly, that's not a debate that either Gallagher or Sammon are equipped to be a part of. Such a debate would require a libertarian expert like Julian Sanchez facing off with another more hawkish expert.

The third provision is called the 215 order. The section 215 order appears to be the broadest. To explain it, I need to use an example. Let's say that a tip comes in that in Glenview, Il. there is a group of terrorists. You, at this point, don't even need to know specifically who they are. You just need to meet a standard with a judge that there are terrorists there. This warrant allows the Feds, again almost always the FBI, to conduct searches without letting the suspected terrorists know. This section is again terribly wonky, but in some cases, the feds can get a warrant to ask for any hardware store in the town of Glenview for all their receipts as part of the investigation. They can do this if they suspect that terrorists are buying bomb making material there. With this section, again Nadler, Feingold, and Conyers are trying to tighten up the requirements to receive this warrant. No one is trying to remove the power entirely. Again, there is plenty of debate for whether the tightening is appropriate or not but that debate must be left to an expert like Julian Sanchez to debate with another expert of a differing philosophy and not Trace Gallagher and Bill Sammon.

In fact, this debate over the Patriot Act has gone the way of most debates, and that is on ideological stereotypes. If you are against the Patriot Act, you want to give terrorists rights. If you are for the Patriot Act, you don't care about civil liberties. For almost all, it's that simple. It isn't. I asked Mr. Sanchez what he thought of the Patriot Act and his answer was revealing. He told me that such a question was too broad. The Patriot Act is a collection of about 150 provisions. Some he liked and others he didn't. His fear is political. He believes that politicians will error on the side of national security because they don't want to be blamed for allowing a terrorist attack. It's much more difficult to prove a violation of civil liberties.

He fears that the Patriot Act could be used by the feds to go after drug cartels when they don't have enough evidence to get a regular warrant. If the Patriot Act becomes too broad then the FBI will link Colombian drug money to Al Qaeda and get warrants using broad powers. He's not saying that's happening. He is, however, saying that this can happen if no one is curbing the powers in the Patriot Act.

In fact, these debates are for wonks like Julian Sanchez, and that's the problem. Folks on television will often come on to give opinions without consulting with experts and then mislead due to their own naivite. That's what I did, but I have now corrected the record, and hopefully, so too will Fox News.

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