We rushed to pass a bad law in the wake of 9/11. The unsurprising consequences are bad enough, but if we can’t learn from them it will be even worse.
For more on pruning back executive power see Pruning Shears.
Every adult in America probably remembers 9/11 in the immediate sense – the first time hearing the news, seeing the images, the confusion, uncertainty and fear of that day – but it seems like our memory of the period immediately after is hazy. For a month or two we were traumatized as a nation and had trouble understanding what had happened, and what should come next. By the end of 2001 the drumbeat for war had begun and it is possible that fixing our attention on how best to attack Iraq served as a psychological crutch by giving us something to focus on. This is not a professional opinion, just an observation based on what I went through and saw others going through. (And it is emphatically not an attempt to rationalize the Iraq war.) One extremely unfortunate byproduct of that period is the USA PATRIOT Act (UPA); two recent events are the latest examples why.
The UPA floor debate in the House gives a good reminder of what the original intent was. James Sensenbrenner broadly described it as “landmark legislation [which] will provide law enforcement and intelligence agencies additional tools that are needed to address the threat of terrorism and to find and prosecute terrorist criminals.” Michael Oxley chimed in with this:
I rise in support of the legislation, particularly the provisions in title III which would represent the most comprehensive anti-money laundering legislation which the House has considered in more than a decade. The legislation gives the administration important new tools with which to wage a global financial war on terrorism, and to starve Osama bin Laden and others like him of the funding needed to commit their acts of evil….With this legislation, we take a critical step toward smoking terrorists and other criminal organizations out of the offshore financial bunkers that for too long have offered them safe haven.
Look at the stated targets: Terrorist criminals, terrorists and other criminal organizations, Osama bin Laden and others like him. Even well afterward Orrin Hatch declared “Congress enacted the USA Patriot Act, in part…to increase consultation and coordination efforts between intelligence and federal law enforcement officers to investigate and protect against foreign terrorist threats.” Who could possibly object? Robert Scott of Virginia, for one: “First of all, this has limited to do with terrorism. This bill is general search warrant and wiretap law. It is not just limited to terrorism. Had it been limited to terrorism, this bill could have passed 3 or 4 weeks ago without much discussion, but we are talking about wiretapping law.” But we weren’t pausing to consider such esoteric concerns then.
Subsequent events have shown why Rep. Scott was precisely right. Eliot Spitzer was caught because of the suspicious activity reporting rule in the UPA that was aimed at money laundering and terrorist financing. Then there is the Briana Waters case. Waters is accused of “domestic terrorism”, a new category of crime created by the UPA. She was recently convicted of participating in arson at the Center of Urban Horticulture on the University of Washington campus. The building was torched in the middle of the night and sustained $2.5 million in damage.
Please be very clear on the following: My concern here is not with the details of either case nor the guilt or innocence of the accused. All I want to point out is the fact that provisions of the UPA are already being used outside of their initial scope. When Congress was all too briefly (via) considering this bill we were told over and over it was all about the Osama bin Ladens of the world. We were assured the government would use its new powers with restraint in solemn acknowledgement of the gravity of the threat. That simply was pure bunk. The abuses began almost immediately (via) and have continued to the present. There is no reason to expect it to stop. Authorities test the limits of new powers for the same reason a three year old tests the limits of parents’ patience: To see how much they can get away with. When the new powers are accompanied by minimal oversight or a cowed and timid populace the abuses will be much more frequent and severe. These latest abuses of government power give us reason to step back and reflect on what we are doing to ourselves, and it certainly should be at the front of our minds now that Mike McConnell and Michael Mukasey are telling (via) us over and over how desperately they need (via) additional new powers to fight the terrorists.
