Patriot Act

[crowMAW]

Originally posted by AKIron
I retract my statement about punting this thread 'till someone posts an objectionable line or two from the Patriot Act itself instead of some liberals rantings. It's a hopeless cause and just not worth the effort.

Don't give up yet!!

Lets start with sec 215 (we can hit a few others that have more convoluted references that reduce the right to Due Process later if this analysis is not enough):

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:

SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.

(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

   (2) An investigation conducted under this section shall--

      (A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
 
      (B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(b) Each application under this section--

   (1) shall be made to--

      (A) a judge of the court established by section 103(a); or

      (B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

   (2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection
(a)(2) to protect against international terrorism or clandestine intelligence activities.

(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

   (2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

SEC. 502. CONGRESSIONAL OVERSIGHT.

(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.

(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period--

(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and

(2) the total number of such orders either granted, modified, or denied.'.

Now what does all this legalese mean.  Well, it expands the Foreign Intelligence Surveillance Court and its power to some extent.  Who is on this court? We don't know...it is a secret.  They are designated by the Cheif Justice however.

This section expands the type of records that can be subpoenaed.  Do you value the patient-doctor confidentiality privalige?  Well, it is gone for the Feds.  They can get any record, including those from your doctor.  It used to be that a motion would be offered, which required notification of opposing counsel so that a hearing to open the med records could be held.  But no more.  

The Feds don't even have to show probable cause according to this section.  They merely need to suspect that they might find something.  

Formerly, to get an order, the Feds had to show that forieign intelligence had to be the "primary purpose" for the investigation...now they just need to show that it is a "significant purpose". This leaves open other criminal activities.

Moreover, this section forbids anyone to tell the suspect, or anyone else, that the records have been ordered to be given to the Feds.

So does it bother you that we have a secret court holding secret hearings issuing secret orders to collect intelligence on our citizens?  This sure seems to violate the Fourth Amendment to me, but then perhaps the US Consitution is not as important to some un-American conservatives as it is to the rest of us.

So here is the "nightmare" senario: A police detective is having difficulty getting a judge to sign an order to open records that may provide some evidence.  The detective does not have sufficent probable cause to substantiate the order.  But the records are about Mohammad, who is a naturalized citizen from Iran.  The dectective calls up his college roommate who is a Special Agent for the FBI and says, "hey, I was in this guy's apartment and saw a magazine with the word terrorism on the cover and a picture of the Ayatollah on the wall. (of course he neglects to say that the magazine is Time and the picture has a bulls-eye and darts in it)  I bet these records might show you something.  And, oh, by the way since we are supposed to be sharing info according the Patriot Act, how about sharing that info with me for my investigation."  The Special Agent gets a FISC order and in doing so has just violated Mohammad's Constitutional rights.  But there is no appeal, because Mohammad was never given the opportunity to object since he did not know the search was conducted.  The evidence collected is circumstantial but damning, and with other circumstantial evidence, Mohammad is convicted.  Years later new evidence surfaces that shows that Mohammad could not have commited the crime...oh, well.

[Eagler]

ohhhh nooo  -  Big Brothers watching!!
I don't think I'll be able to sleep tonite!!! LOL

or are the losers watching Big Brother 4

those lefties are making you guys more paraniod than normal .....

[crowMAW]

Originally posted by Eagler
ohhhh nooo  -  Big Brothers watching!!
I don't think I'll be able to sleep tonite!!! LOL

Hey piss on the US Constitution that our Founding Father's wisely crafted as you please...it is your right under the Constitution.  But don't expect me to think you are a supporter of America for doing so.  Disparaging the Constitution is about as American as burning the US flag, IMO...maybe even worse than flag burning since the freedoms guarantied by the Constitution is only thing that differentiates the USA from dictatorships like Saddam Hussein's Iraq.

[Eagler]

Originally posted by crowMAW
Hey piss on the US Constitution that our Founding Father's wisely crafted as you please...it is your right under the Constitution.  But don't expect me to think you are a supporter of America for doing so.  Disparaging the Constitution is about as American as burning the US flag, IMO...maybe even worse than flag burning since the freedoms guarantied by the Constitution is only thing that differentiates the USA from dictatorships like Saddam Hussein's Iraq.

I ain't pissin on anything
I pick my battles and this ain't one of them...

times change ... change with them or die

[AKIron]

CrowMAW, I appreciate the dialog. Let me address a couple of your stated concerns. I may address more later when I have time.

First, the secret court order is no big deal. I kinda doubt that any previous request for a court order was public anyhow. Most criminal investigations have always been conducted secretly or at least semi-secretly. The investigators are not obligated to reveal any evidence to the public until the case goes to trial.

Second, you should realize that any evidence obtained not in accordance with the law, and the sections you've quoted seem to be pretty protective of constituional rights, will be inadmissable in court.

The only right that I see being impinged upon here is the right to commit terrorism. And that's a right I'll gladly see trampled.

[crowMAW]

Originally posted by AKIron
CrowMAW, I appreciate the dialog. Let me address a couple of your stated concerns. I may address more later when I have time.

[/b]
Great...I always appreciate courteous dialog.

First, the secret court order is no big deal. I kinda doubt that any previous request for a court order was public anyhow. Most criminal investigations have always been conducted secretly or at least semi-secretly. The investigators are not obligated to reveal any evidence to the public until the case goes to trial.

You are correct, they are not required to reveal evidence to the public prior to trial.  However, search warrants are open to the public unless sealed by the court (usually to protect the accused's right to a fair trial).  The most recent opinion on this is from In the Matter of the Search of L.S. Starrett Co. ruled on by US District Court Judge Eliason, who agreed that the public has a presumptive right of access to search warrants, even at the pre-indictment stage.

As a general rule, covert searches for physical evidence are illegal. Rule 41(d) of the Federal Rules of Criminal Procedure specifically requires that the officer conducting the search "shall leave a copy and receipt at the place from which the property was taken." Title 18 of the United States Code only authorizes delayed notice for searches of oral and wire communications (18 U.S.C. 2510). Nothing in the criminal code permits secret searches for physical evidence. Furthermore, the Supreme Court has traditionally held that an officer must knock and announce his presence before serving a search warrant, absent exigent circumstances. (Richardson v. Wisconsin, 520 U.S. 385)

Now the problem with the Patriot Act is that the accused is not given the opportunity to dispute the validity of the warrant.  Normally, if the suspect wishes to file an injunctive motion to show cause they may do so.  If this is done prior to the warrant's perfection then the warrant could be quashed, or if the search is in progress then it could be stopped.  If the search has been completed it is still possible that the search could be declared illegal and all evidence made inadmissible prior to indictment.  This Act prohibits that little bit of Due Process as the suspect, by law, must not be told of the search.  

Worse, the burden of obtaining a FISC warrant is much more lenient than a normal warrant.

Second, you should realize that any evidence obtained not in accordance with the law, and the sections you've quoted seem to be pretty protective of constituional rights, will be inadmissable in court.

[/b]
Fortunately, that has not yet been tested.  However, a smart prosecutor could argue that since the "significant purpose" of the search order was satisfied in order to obtain the FISC search, any other evidence uncovered that may indicate commission of an unrelated crime would be admissible since the search warrant was validly issued by a judge.  That means it could be used as a means to circumvent the normally more stringent requirements of probable cause needed to obtain a regular warrant.

Now, would a criminal judge buy that argument?  I think it would depend on the judge quite honestly.  We've got one here that I'm sure would agree with that argument.

The only right that I see being impinged upon here is the right to commit terrorism.

[/b]
That is a laudable goal.  However, there is the real likelihood that the law could be perverted and used beyond that intent.  I think that is what many are scared of.

[AKIron]

Okay, I can see your concern regarding the required nondisclosure of the search warrant. However, this warrant may only be issued "to protect against international terrorism or clandestine intelligence activities" and is clearly stated. I hope you can understand the need for some secrecy when dealing with ruthless and covert terrorist organizations whose sole intent is the destruction of our nation.

I think that your fear, and that of many others, that this could be abused resulting in charges unrelated to terrorism is unfounded. How much national attention would such a case receive? Enough to quickly put an end to the Act I think.


Regarding information revealing an extraneous crime that might be discovered during the execution of a secret court order. Isn't that a possibility with any court ordered search? While a citizen does have a constitutional right to privacy they don't have a constitutional right to commit a crime privately. Do they?

[Sandman]

"Constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of frenzy." - Senator John Stockton, 1871

[Furious]

Originally posted by AKIron
... While a citizen does have a constitutional right to privacy they don't have a constitutional right to commit a crime privately. Do they?

<CAUTION!!  The following is an extreme example for discussion purposes only.>

What if we each had a miniature floating camera that went everywhere with us and continuously filmed our lives.  


Would that be ok?  

It should be, right, because we are all law abiding citizens.  And if we aren't then our crimes should be recorded and justice served.

Dang, but all those things we do or say that are not against any laws, but are deeply private get recorded and monitored to.  

Not to worry, all the nice folks that watch those tapes would have our best interests at heart.  You could trust them to keep your private life private.

Just look up and smile every once in a while.




Not being a criminal doesn't mean I don't have things to hide from my government.


F.

[AKIron]

What you suggest is an invasion of privacy. That is if the recordings of those cameras were viewable at anytime and without a court order. Now what if the content of those cameras could only be viewed by court order? And then, only the specific time period in which you were suspected of having committed a crime. I sure as hell wouldn't want one with me when I'm behind the wheel. But if I were accused of a crime I didn't commit I'd be glad to have it.

Anyhow, as you stated, that is extreme and will never fly in my lifetime. I'd certainly resist it anyhow.

[crowMAW]

Originally posted by AKIron
Okay, I can see your concern regarding the required nondisclosure of the search warrant. However, this warrant may only be issued "to protect against international terrorism or clandestine intelligence activities" and is clearly stated.

Unfortunately, the word "only" does not appear in sec 215 which amends 50 U.S.C. 18619.501(a)(2).  As written and given the FIS Court's opinion (which is the only opinion ever published from this secret court) it is no longer the case that the warrant must "solely" be "to protect against international terrorism or clandestine intelligence activities", but rather just "substantially" for that purpose.

I hope you can understand the need for some secrecy when dealing with ruthless and covert terrorist organizations whose sole intent is the destruction of our nation.[/b]

Absolutely!  I just don't think I understand why the criteria for sustaining a search were weakened.

Secrecy could still be maintained while keeping the more stringent probable cause requirement.  And secrecy would not have been jeopardized by maintaining that the sole purpose of the warrant would deal with terrorism related acts.

I also think that it would have even been possible to reduce the lack of Due Process and lack of adversarial counsel if the Act had been better written.  I think that it would be possible to create a "special public defender" who would represent the accused in a show cause hearing.  This special public defender would be required to maintain secrecy regarding the material aspects of the warrant.  The accused's rights could still be protected by his special public defender even if the accused is not permitted to see the warrant.

I don't think there would be a conflict in implementing this.  Our system currently uses state paid public defenders who take adversarial positions against state paid prosecutors.  The Constitution guaranties the right to legal counsel, but it does not guaranty choice of counsel.  So long as the special public defender is competent and can ably protect the accused's rights then the Constitution is satisfied.

Unfortunately, a special public defender would only be useful at the trial phase.  But it is better than nothing, which is what the accused gets now.  Defense attorneys are told that the warrant is secret...end of story...Due Process denied.

I think that your fear, and that of many others, that this could be abused resulting in charges unrelated to terrorism is unfounded.[/b]

Thankfully, you are right.  There has not been a case, that we know of, where the Act has been abused...YET.

I have heard similar "unfounded" arguments from many proponents of legislation that would endanger our rights...everything from the right to bear arms to free speech.  The problem is that I don't think we can trust politicians and bureaucrats to not abuse powers granted to them that have the potential to trample our rights.  Trust me...I work for 'em and far too frequently have I seen them abuse power when it suited their needs.

Regarding information revealing an extraneous crime that might be discovered during the execution of a secret court order. Isn't that a possibility with any court ordered search? While a citizen does have a constitutional right to privacy they don't have a constitutional right to commit a crime privately. Do they? [/B]

You are correct, you do not have a right to commit a crime.  However, remember that a search can only uncover evidence of a crime...the court then determines if the evidence shows that the accused committed the crime beyond a reasonable doubt.  We have rules about how evidence can be collected and how it must be disclosed to defense counsel so that they can provide an adequate defense and attempt to show how the evidence does not eliminate reasonable doubt.  If counsel can show that the evidence was improperly obtained then it must be excluded.  If counsel can show that the warrant was not sustained by probable cause then any evidence obtained by the warrant must be excluded (fruit of the poison tree).

The issue that the Patriot Act brings up (aside from the fact that it doesn't require the same level of probable cause that other criminal search warrants require in order to be valid) is that there is no way defense counsel can show the warrant was not sustained if they can't review its contents.

[AKIron]

CrowMAW, the "special public defender" as you put it, privy to all information as I would expect, sounds like a very necessary element to ensure justice. I can see that the secrecy part may create the potential for a cloud of doubt as to whose side the defender is actually on.

Unfortunately, the terrorist threat has proven to be very real. Those intent on our destruction have freely available for  their abuse a complete schematic of the structure of our free and democratic society. I'm afraid we're fooling ourselves if we think our structure to be impervious to subterfuge. That we must act to prevent the destruction of our society is not only prudent but essential. I'm no lawer, (sounds like you may be) so I must trust, to a great degree, those elected to serve my best interest. I only hope they are trustworthy.

[lord dolf vader]

i on the other hand belive they are not.

my reluctance to have bush "correct" jefferson is absolute. what ever it takes all bets are off.