December 10, 2003

Supporters of the Patriot Act miss the point

Professor Bainbridge links to an Opinion Journal (subscription req'd) article by John Yoo and Eric Posner defending the Patriot Act.

Americans have never been eager to trust their government, yet Posner and Yoo ask us to accept the Patriot Act in part because we cannot point to any abuses of these new powers by Bush Administration officials. Even if they are correct when they suggest that the Act hasn't been abused yet, they sidestep the point of the most powerful criticism of the Act. Our civil liberties require protection more powerful than the simple goodwill of governmental officials who "choose" not to abuse their power.

This idea is not new. It is responsible for our tripartite system of government with its separation of powers and system of checks and balances. In that sense, it's the oldest and most familiar idea in America.

But it's hard to grant Posner and Yoo the benefit of the doubt. An absence of evidence, we may remind ourselves, is not evidence of absence. Here, though, we do have some evidence that the evidence (if any) is being kept secret in the name of national security.

The Patriot Act expands the ability of federal agencies to use National Security Letters (NSLs), which allow the government access to bank records and other documents without first obtaining consent from a judge, as is required for a normal subpoena. The targets of these NSLs are prohibited from revealing the existence of the NSL to anyone, including the individual whose records were obtained.

This raises the common-sense question: how can we tell if the government is abusing its powers under the Patriot act, if we can't even tell when the government is using these powers?

When civil liberties groups used the Freedom of Information Act to try to find out how many times the FBI has used these NSLs, the FBI provided a six-page blacked-out list (pdf file) with some numbers handwritten in the margins. If individuals can't know when the FBI is using its Patriot Act powers, and neither can civil-liberties groups, who can? Along with the blacked-out list, the FBI provided a memo urging its field offices to keep NSL use to a minimum for fear that Congress might allow the Act to expire under its sunset provision. So I suppose we can assume that at least one Congressional committee will be able to monitor the FBI's use of Patriot Act powers.

Is this adequate? Reasonable people will certainly disagree, but it's no surprise that many citizens aren't as prepared as Yoo or Posner to say "yes." One of the reasons is certainly that many of us just don't trust George W. Bush.

This is the same President who chose to lock up Reagan's presidential papers to keep them away from public scrutiny (and this was before September 11).

This is the same President whose Vice-President insists on keeping secret not merely the advice, but even the names of which fat-cats advised him on the Energy Policy Task Force, all in the name of "privilege" (and this was before September 11).

This is the same President who fought requests to make the findings of the 9-11 commission public.

And, of course, this the same President who likely lied about the threat from Iraq.

Posner and Yoo might wish we would all just trust the Administration, but they shouldn't be surprised if we'd rather not.

Posted by Carey at December 10, 2003 05:17 PM

Ha, it hasn't been abused yet, they say? The money laundering provisions are sweeping, and 2/3 cases they've been used in have nothing to do with terrorism. When even a publication like Newsweek understands that the act was passed under false pretenses, you know it's something serious.

Posted by: Mark Ashton at December 11, 2003 12:16 PM