Michael Mukasey On The Patriot Act
By Pejman Yousefzadeh Posted in Law — Comments (10) / Email this page » / Leave a comment »
Very smart, sober and well-reasoned. So much of it stood out, but this was an important section by my lights:
My favorite example is the well-publicized resolution of the American Library Association condemning what the librarians claim to believe is a section of the statute that authorizes the FBI to obtain library records and to investigate people based on the books they take out. Some of the membership have announced a policy of destroying records so that they do not fall into the hands of the FBI.
First a word on the organization that gives us this news. The motto of this organization is "Free people read freely." When it was called to their attention that there are 10 librarians languishing in Cuban prisons for encouraging their fellow countrymen to read freely, an imprisonment that has been condemned by Lech Walesa and Vaclav Havel, among others, this association declined to vote any resolution of condemnation, although they did find time at their convention to condemn their own government.
And this one:
Most of the provisions have nothing to do with the current debate, including provisions authorizing purchase of equipment for police departments and the like, and provisions tightening restrictions on money laundering, including restrictions on the export of currency, which is the lifeblood of terrorists. Recall that when Saddam Hussein was captured, he had with him $750,000 in $100 bills.The statute also breaks down the wall that has separated intelligence gathering from criminal investigation. It allows intelligence information to be shared with criminal investigators, and information that criminal investigators unearth to be shared with those conducting intelligence investigations. I think many people would believe this makes sense, although a series of bureaucratic decisions and a stark misreading of the Foreign Intelligence Surveillance Act for years made this impossible, and thus prevented the government from fulfilling its most basic responsibility under the Constitution: "to provide for the common defense [and] promote the general Welfare."
What difference would this make? Well, there is one documented incident involving an FBI intelligence agent on the West Coast who was trying to find two men on a watch list who he realized had entered the country. He tried to get help from the criminal investigative side of the FBI, but headquarters intervened and said that was not allowed. That happened in August 2001. The two men he was looking for were named Khalid al-Midhar and Nawaf al-Hazmi. A few weeks later, on Sept. 11, they were at the controls of the airplane that struck the Pentagon. This provision of the statute, permitting information sharing, could not pass Congress without an agreement that it would sunset on Dec. 31, 2005, and so unless that provision is changed, come Jan. 1, 2006, we will be back to the rules that prevailed in August 2001.
Quite clearly, the challenge of combating terrorism is going to bedevil Attorneys General for years--if not decades--to come. Mukasey appears to be well-prepared to answer the challenge and he seems to have a gift at taking on controversial issues in a straightforward, no-nonsense way. I think that he will do wonders for the national discourse on this and other issues. He certainly appears to have the talent and dedication to do so.
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Michael Mukasey On The Patriot Act 10 Comments (0 topical, 10 editorial, 0 hidden) Post a comment »
I'm perfectly serious about this; and take your hands away from the keyboard. I'm in no mood to read rationalizations.
Let us start with Article 215. If you had read the article in question - uh, uh, uh! Sit on your hands, if you have to - you would have noted this passage:
What about the section the librarians were so concerned about, Section 215? Well, it bears some mention that the word library appears nowhere in that section. What the section does authorize is the issuance of subpoenas for tangible things, including business records, but only upon approval by the Foreign Intelligence Surveillance Court. Such a subpoena can direct everyone, including the record keeper, not to disclose the subpoena to anyone, including to the person whose records were obtained. That section also specifically forbids investigation of a citizen or a lawful alien solely on the basis of activity protected by the First Amendment. It requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period.
For your review, Section 215:
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.'.
Translation: contra your take on the subject - which does not particularly demonstrate any familiarity with the source material - the government does not have a "policy of investigating people based on what books they read." They have a policy of reserving the right to look at what books are being read by people that they're investigating.
Also: the logical fallacy that you're trying to evoke is "ad hominem." Not that you got that one right, either: if Mukasey had brought up the ALA's Cuba dissident policy in a debate on their stated policy towards, say, abortion, you'd be correct. Alas for you, it is a valid question to ask why the ALA is inconsistent.
Moving along - Keep! Sitting! On! Those! Hands! - your other objection to Saddam Hussein's was equally risible. If you had read the article in question, you might have noted that Mukasey was referring to Hussein's capture. At the time of his capture, Hussein was not a dictator of anything except his bolthole. He was instead at least the figurehead of a illegitimate resistance movement that failed to conform to both the Geneva Conventions and the enlightened expectations of mankind. The cash that he had on him was dedicated towards both keeping Hussein alive, and trying to find some way to put him back in power. Which illustrates Mukasey's point nicely about why we need to hammer currency transfers.
In short, Mr. Mukasey's suggestion in the beginning of the piece that you didn't read really, really does apply in your case. I'd reprint it for you, but we've done enough of your mental heavy lifting for one morning.
Moe
PS: This wasn't a conversation. This was a last-ditch effort to get you up to speed with the rest of us before I start handing out homework assignments. Don't make the mistake of thinking that I care about your excuses, rationalizations and/or sensibilities.
The Fuzzy Puppy of the VRWC. I've been usurped!
I'm astonished by this: "Indeed, there have been no such subpoenas, period."
How long has section 215 been on the books? One presumes it was legislated specifically to address an actual need. Am I misunderstanding what "no such subpoenas" means, or did the need for section 215 suddenly go away right after it was put into effect? Or was this just sort of, "you know, someday we might want to do this...".
Seriously... we haven't engaged in any investigations that required the use of subpoenas under section 215???
Or perhaps terrorists now get their bomb making and Daily Jihad via a different computer (other than the local library) since this has all been exposed? It's a tool to eliminate potential loopholes, not a required element.
Then again it could be the potential civil liabilities or required, leaky Congressional Reviews...take your pick.
"Dulce et decorum est pro patria mori"
Contributor to The Minority Report
As Moe already pointed out section 215 is not limited to or targeted at libraries, or specific computers for that matter.
... any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities ...
If there is other legislation allowing the "Director of the Federal Bureau of Investigation or a designee of the Director" to obtain such tangible items, then section 215 seems, at best, redundant and pointless. That it has evidently never even been used is certainly curious.
I don't have time to look up the current number, but back in 2005 DoJ reported using 215 authority about 35 times, just never at libraries, et al.
Nonetheless, I would have to concede some authority may be somewhat redundant with current law. Given that library information is in the public domain (including computer use) and considering permissible action under exigent circumstances, some believe this can be accomplished outside 215. However, there are other critical components related to the national security aspects (exempli gratia "gag order") that makes it more effective and comprehensive for the designated purpose.
"Dulce et decorum est pro patria mori"
Contributor to The Minority Report
Again, from what Moe quoted Mukasey as writing:
What about the section the librarians were so concerned about, Section 215? ... At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period.
I read that as Mukasey saying there have been no subpoenas as a result of Section 215 whatsoever (not just none to libraries). Maybe he's ignorant of the real numbers? I don't know, but his assertion is what struck me as odd in the first place.
Perhaps there were none overall as of his Op-Ed, which is from May 2004. Nonetheless, the context of his statements seemed as only applying to libraries. I am not certain if that is currently still the case (there was an incident at Brandeis library in 2006, which may have resulted in the first, I am just not certain).
"Dulce et decorum est pro patria mori"
Contributor to The Minority Report
Or perhaps terrorists now get their bomb making and Daily Jihad via a different computer (other than the local library) since this has all been exposed? It's a tool to eliminate potential loopholes, not a required element.
Then again it could be the potential civil liabilities or required, leaky Congressional Reviews...take your pick.
"Dulce et decorum est pro patria mori"
Contributor to The Minority Report
There is a little action called balance, which generally is a fairly good test. Normally, in cases such as this, it would help indicate the organization does not have ulterior motives; something they obviously failed. It also helps to understand that nowhere in the statute does it refer to "libraries" and that any request for records comes from a FISA Court; inconvenient facts, I know.
Your ham handed attempt to articulate any of this only betrays either gross ignorance or the same type of partisan contra dialectics displayed by the Library Association.
I wonder if the people killed directly by Saddam and his henchman (chemical weapons, hanging, genocide-you pick) or victims of suicide bombs he helped finance or victims of the terrorists he allowed to train in his country, thought he was a terrorist? But hey, it was all about “Oil for Food” that is more important anyway….now what were we talking about?
Oh yes, it was Mukasey; that was the subject of this article, wasn’t it? The fact you are unimpressed, impresses…..nobody.
"Dulce et decorum est pro patria mori"
Contributor to The Minority Report
First, while the American Library Association has incorrectly failed to condemn Cuba, this does not mean that they are incorrect to condemn the U.S. Government for a policy of investigating people based on what books they read.
That's a really creepy policy.
And, attacking the messenger rather than the message is a fairly cheap logical fallacy. It is not "well-reasoned" as Pejman Yousefzadeh claims.
(As an aside, it could be argued that they would stand a better chance of affecting change in the U.S. Government's policies, since it is a democracy, rather than the Cuban government, and that they were putting their time and effort to where it could have the most effect -- condemning both would probably have had the better effect, since people might then look at the two situations and say that there is a slippery slope, etc, etc)
Second, although the limits on money transfers are a good thing, the example is wrong. Saddam Hussein was not a terrorist, he was a nasty dictator. He most likely did not get his cash from the transfers banned, he got it through corruption in the Oil For Food program.
I'm sure there are plenty of examples of actual terrorists that would hold up to better scrutiny, but once again Mukasey goes for the cheap and easy target, playing for emotions rather than reason.
I am not impressed with Mukasey so far.