How Patriotic is the Patriot Act?

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

When the Patriot Act was signed into law back in 2001, there was significant discussion about and distrust in the broad powers granted to the FBI and other intelligence gathering agencies. I won’t go into the uproar that ensued back then, but I do want to discuss the latest events pertaining to the infamous Section 215 of the Patriot Act.  Section 215 of the Patriot Act is the section that has been dubbed as the “business records” provision of the Act.  In the last few days, two United States Senators reconfirmed their concern over the possible misuse of the broad powers granted to the government in Section 215.  Senator Ron Wyden and Senator Mark Udall have made public their recent letter to Attorney General Holder expressing their grave concerns on just how Section 215 is being interpreted and used to spy on Americans.

“It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existence of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court (or “FISA Court”) has been acknowledged on multiple occasions by the Justice Department and other executive branch officials.  We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.

As we have said before, we believe that it is entirely legitimate for government agencies to keep certain information secret. Americans acknowledge that their government can better protect national security if it is sometimes allowed to operate in secrecy and as such, they do not expect the Obama Administration to publish every detail about how intelligence is collected any more than early Americans expected George Washington to tell them his plans for observing troop movements at Yorktown. However, in a democratic society — in which the government derives its power from the consent of the people — citizens rightly expect that their government will not arbitrarily keep information from them. Americans expect their government to operate within the boundaries of publicly-understood law, and as voters they have a need and a right to know how the law is being interpreted, so that they can ratify or reject decisions made on their behalf. To put it another way, Americans know that their government will sometimes conduct secret operations, but they don’t think that government officials should be writing secret law.”  ACLU  The full text of the letter can be found here.

What is amazing to me is not that the government is spying on us, but that they have no qualms in spying on us using any and all legal and maybe not so legal measures as hinted at by Senators Wyden and Udall.  If I understand the concern of the Senators and the ACLU, the issue revolves around how the Justice Department is interpreting Section 215 and how easily the Feds can spy on Americans without any showing of actual criminal behavior on the citizen’s part.

“This isn’t the first time the ACLU has sought information about the government’s use of this provision. Back in 2002, we filed a FOIA suit that eventually resulted in the release of a few hundred documents — including this, this, and this. But now the FBI is using Section 215 much more aggressively. It’s using it more often. And statements by Obama administration officials raise the distinct possibility that the government is using the provision to support entire surveillance programs.

As Wyden and Udall say, the secrecy surrounding the government’s use of new surveillance powers is unwarranted and fundamentally antidemocratic. The public should know, at least in general terms, how the government interprets its surveillance authority and how that authority is being used.” ACLU

The linked articles in the above quote from the ACLU hint that intelligence experts believe that Section 215 is being misused to allow the government to obtain massive amounts of geolocation information obtained from cell  phones.  Of course, unless the government discloses just how they are interpreting Section 215 in their dealings with the Foreign Intelligence Surveillance Court (FISA), we may never know.  However, when United States Senators are publicly nervous about the use of this allegedly misguided data collection process, then we should probably be really worried.

If the government is “stretching” the logical interpretation of the language in Section 215 to allow for massive date collection programs, what good is the FISA court if they are rubber stamping this type of alleged program?  What happened to the Obama Administration’s promise to be more transparent than past administrations when it came to their dealings with the Patriot Act and the FISA court?

We should not be surprised at the government’s “handling” of these Section 215 matters since Senator Durbin and then Senator Feingold went on record in the Senate with their grave concerns over misuse of Section 215 powers.

Section 215 has been repeatedly abused  On October 1, 2009, Senator Feingold made several statements regarding abuses of Section 215 during a Senate Judiciary Committee markup hearing:  “I remain concerned that critical information about the implementation of the Patriot Act remains classified. Information that I believe, would have a significant impact on the debate….. There is also information about the use of Section 215 orders that I believe Congress and the American People deserve to know. It is unfortunate that we cannot discuss this information today Mr Chairman, I am also a member of the intelligence Committee. I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting.I want to specifically disagree with Senator Kyle’s statement that just the fact that there haven’t been abuses of the other provisions which are Sunsetted. That is not my view of Section 215. I believe section 215 has been misused as well.”  Likewise, after the Senate rejected several reforms of Section 215 powers in 2009, Senator Durbin told his colleagues that:   “[T]he real reason for resisting this obvious, common-sense modification of Section 215 is unfortunately cloaked in secrecy. Some day that cloak will be lifted, and future generations will whether ask our actions today meet the test of a democratic society: transparency, accountability, and fidelity to the rule of law and our Constitution.” ‘ Paranoia

I only wish that I had Senator Durbin’s confidence that the cloak of secrecy will ever be lifted.  Do you think the government should be required to disclose the Office of Legal Counsel memos that reportedly have authorized this over broad interpretation of Section 215?  If the government is allowed to spy on Americans who are not subjects of criminal or terror investigations, have the Fourth and Fifth Amendments been essentially neutered?  Is there any hope of the Patriot Act being brought under control, especially when so much of its use is hidden under the National Security label?  What do you think should be done?


92 thoughts on “How Patriotic is the Patriot Act?”

  1. idealist707 1, March 19, 2012 at 10:14 am


    Just humor me.
    I did.

    Now you humor me by telling me the secret “shocking” interpretation that the administration (DOJ) gives the Patriot Act as well as the 3/16/12 Executive Order.

    Otherwise, hear these TOM TOM drums(video) baby! 😉

  2. “The arc of the moral universe is long, but it bends towards justice”
    ~~ Theodore Parker… and repeated by Martin Luther King, Jr. on occasion

    It “bends towards justice” and, hopefully, towards democracy, as well, Dredd.

  3. anon nurse 1, March 18, 2012 at 2:36 pm

    From the ACLU article:

    “Contrary to core principles of American democracy.” That’s how two U.S. senators describe the Justice Department’s refusal to release a secret legal interpretation of the Patriot Act.

    “Contrary to core principles of American democracy.”
    That is what I am talking about!

  4. idealist707 1, March 19, 2012 at 9:38 am

    Dredd old buddy,
    You’re banging your DOOM drum in vain. The text of the order does not support your preface before the text of the order. Sorry to say it.
    I hope so!

    I have read several blogs that agree with your assessment.

    I will repeat what I put in the DOOM post and a comment there:

    How we interpret the EO is not important, what is important is how the administration interprets it.

    Normally that would be meaningless.

    But in this thread about the Patriot Act that rafflaw kindly brought up the classified interpretation of the Patriot Act and the EO is paramount.

    I added a link to the ACLU blog which is saying that YES! the government has a classified interpretation, which two Senators would SHOCK us if we heard or read their interpretation of the statute.

    So, if they are hiding the shocking meaning to the Patriot Act, there is no reason as far as we can see, for them to issue this EO unless they have another meaning for it.

    I am sure this is a shocking EO, just like the Patriot Act is.

    We just don’t “know” the shocking truth … except to the extent we follow out ancestors and expect the very worse interpretation that we could think of.

    They sure as hell will.

  5. Dredd,
    Your response was welcome, as I said. And will not belabor the point.
    but in respect to you and my need to prove my claim, here’s my second post on the Doom exec order.

    “idealist7071, March 18, 2012 at 12:36 pm


    I buy that. Glad you did not play the Obama card, just that helps us here.

    But I must play it now. Here is Obama’s latest deal with corporated America. It is to heighten our war preparedness.
    See his executive order from Friday, and give feedback.
    I’ve posted it earlier and got none. There are blogs, but will save them for now.

    from here.

    Your buddy who digs your stuff. No offense. Just humor me.

  6. Dredd old buddy,
    You’re banging your DOOM drum in vain. The text of the order does not support your preface before the text of the order. Sorry to say it.

    Here’s why:
    “b) assess on an ongoing basis the capability of the domestic industrial and technological base to satisfy requirements in peacetime and times of national emergency, specifically evaluating the availability of the most critical resource and production sources, including subcontractors and suppliers, materials, skilled labor, and professional and technical personnel;

    (c) be prepared, in the event of a potential threat to the security of the United States, to take actions necessary to ensure the availability of adequate resources and production capability, including services and critical technology, for national defense requirements”

    You wrote:
    “That the said order gave him and his cabinet members the authority to take your money, your home, your children, your guns, your labor, and your services”

    Paragraph b) specifies the areas to be surveyed, and paragraph c) specifies the action to be taken. I can not see that the resources surveyed in b) are seized in c). ie “skilled labor, and professional and technical personnel”. The equivalent words in b) are not in c), IMO.

    Thus your contention that viz. “your labor, and your services” will be taken,
    as you say, is supported here in the executive order. It may be elsewhere, please show it in which case. Or correct my interpretation, please.

    I share your general worry over this EO, and am also certain that the government will find ways of coercing us. But based on examination it is not clear what they declare they can do vv your labor and personal services, as you imply.

  7. Talkin dog,
    Good story on Hess.

    Hess crazy, not really, It wasn’t only the Sovjets who had spies in the Manhattan project, I presume. Hess heard that we were soon ready with the A-bomb, so he wanted to save them from that fate, Perhaps.
    I love to speculate.

  8. Have previously had comments published in the NYTimes, article related.

    Yesterday I sent in a LTE/Op-ed submission, fat chance. Can’t show it as they demand exclusivity.

    It portrayed the government’s “necessary” solution to the massacre in Kandahar of the 16 civilians.
    Before sending it, I was full of myself, expecting to be praised for my pas des deux with myself and I on their stage.

    However, after sending my ruelse came, “What if “they” come for me, I thought..

    The point? Most folks have these sober realizations before the fact.
    And thus there is a lack of volunteers to stick up their heads in protest.

    It’s a very high price to pay where no evidence is shown nor judicial review is made.

    Lifetime in a camp at the best, or death by decree for suspected sympathies.

    It sounds so incredible, I can’t get my head around it, Can you?

  9. Gene H.
    Instead of the usual praise, I’ll do it indirectly by asking how many books with exhortative intent have you written? Well done.

  10. No one really denied the patriotism of Rudolph Hess when he went nuts, got on a plane, flew to England late in the war and tried to broker peace. He was tried for war crimes at Nuremberg (not the peace mission). No one really questioned his sanity enough and none dare called him treasonous. Nope, he was a Patriot. That is why the Patriot Act is so pure. None dare call it treason. Congress, the President, the military schmucks who employe the Act to commit crimes against humanity are war criminals. But, maybe partirots. Just like Hess. See ya in Spandau Prison some day Cheney.

  11. I don’t understand why there should be a debate. For crying out loud, they have the NDAA now, where they make people disappear. Anybody, guilty or innocent! And you’re worried about them SPYING on people? If we can get the stupid and treasonous NDAA abolished, THEN would be a good time for a debate on the spying that they are having so much fun with!

  12. Great response Gene. Especially the Pogo reference! We all have a responsibility to speak out, before we lose the right to do so.

  13. “Experience hath shewn, that even under the best forms (of government) those entrusted with power have, in time, and by slow operations, perverted it into tyranny” – Thomas Jefferson

    “Those who cannot remember the past are condemned to repeat it.” – George Santayana

    “Those who don’t know history are destined to repeat it.” – Edmund Burke

    “No passion so effectually robs the mind of all its powers of acting and reasoning as fear.” – Edmund Burke

    “To penetrate and dissipate these clouds of darkness, the general mind must be strengthened by education.” – Thomas Jefferson

    “Leave no authority existing not responsible to the people.” – Thomas Jefferson

    Now ask yourself why the neoconservatives have been and are so steadfastly against public education and wage an agenda designed to purposefully dumb down American students from the removal of civics and history from curricula to the politicization of attempting to teach religion and economic dogma as science instead of real science.

    Talking Dog has a point. Every day, the parallels between pre-Nazi Germany and the United States become more evident. This is a democracy. If we let the enemies of our freedoms from within win, we have no one to blame but ourselves when speaking the truth on its own becomes a revolutionary act. When the day comes where oppression inevitably leads to resistance and freedom is once again paid for in the bloody currency of revolution, just remember what else Edmund Burke is famous for saying: “All that is necessary for the triumph of evil is for good men to do nothing.”

    “We have met the enemy and he is us.” – Walt Kelly

  14. When a nation passes a series of laws to combat a perceived threat, like say the Communists, and the law allows the dissolution of constitutional protections and previous statutes (laws) protecting civil rights, the next step is the imposition of a Nazi tyranny. The 1933 parallels are here for you all to see but you ignore history. The Reichstag Fire Decrees are the same as the Patriot Act. President Obama is President Hindenburg. Hotsie Totsie, I smell a Nazi.
    Google: The Reichstag Fire Decrees; The Judges Trial at Nuremberg; Herr Alstoffer.

    Wake up and smell the manure.

  15. Being rationing I mean etc control measures of supply of materials, production, transportatin, etc.
    How nice he leaves water as food as not being restrictable. Etc
    It’s a pearl of an order.
    Nuf said. Getting to excited again. Nightty night. Pulling the big switch.

  16. Notice also that foreign travels will also be according to delegated decision right. It’s WW2 all over again, as some have commented. That, as they pointed out did not come until 1942, after our starting our engagement.

    Now Obama is out ahead of time. We are fatter and slower to react now.
    And again it may be a trial balloon, like DoJ’s speech on killing citizens.
    Who knows.

    Good night all. It’s one AM here.

  17. Dredd,
    You’re the lawyer but there is two notable points there to me:
    One is first the right in a situation that the Pres can’t confirm in case of challenge, then that agency head has the Pres delegated right to sign such orders. Seems like self-evident since 1776.

    And as you mention:
    Two, the “without compensation” does not mean slave labor, although it might, but a way of dissociating the orderer from the usual responsibility for the agent’s actions.

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