Thursday, April 22, 2004

A lot of civil libertarians have reacted to Richard Clarke's book and experiences, like the foiling of the millenium bombing plots, by suggesting that pre-9/11 legal tools, applied diligently, were adequate to the job, and without diligence, no Patriot Act-style erosion of the Bill of Rights would be adequate. It's worth noting one important dissenter from this line of argument -- Richard Clarke. When asked point-blank about this argument at yesterday's Harvard Institute of Politics forum, he said that he'd read the whole Patriot Act, helped write parts of it, didn't see anything wrong with it, and that the real threat to civil rights in America would be another terrorist act, and the reaction to it.

He wound up by saying that the Patriot Act would have been a real help with the millenium plot. And so far as that goes, it's unquestionably true -- police-state measures always make life easier for the police. At least in the short term.

But I do have to differ about how much civil rights have already been eroded in the current environment. A sort of bellwether can be seen in Ashcroft's recent request for all hotels in Vegas to tell him the name of everyone who stayed there over Christmas -- not on a warrant, but via vaguely defined "national security letters" without even the ghost of a probable cause requirement. What happened in Vegas this Christmas most certainly did not stay in Vegas.

That, in turn, came about because of a recent broadening of Patriot act provisions regarding financial institutions. The Patriot Act as originally passed required "financial institutions" to turn over records without a warrant, on the authority of a senior government official. A more recent bill redefined "financial institution" in the applicable law to mean, in effect, any institution of any kind that exchanges goods or services for money, while allowing field FBI agents to make these requests on their own initiative. The upshot is that just about all commercial activity has been moved outside the scope of fourth amendment protection. Some people might call that erosion of civil liberties in a consequential way.

Nor is this the only attempt by Dubya's crew to reduce the domain of the Fourth Amendment. They've been in court over the past few months, for instance, arguing that there is no longer any reasonable expectation of privacy in doctor-patient relationships because, well, times have changed. And not for any purpose directly related to law enforcement, either -- they just thought that if they trolled through the medical records of every woman who ever had an abortion in New York, they might find something useful in opposing challenges to the so-called "partial birth abortion" ban.

No privilege for financial records -- anyone's, anywhere. No privilege for doctor-patient relations. And I could go on about, say, the DOJ's remarkably expansive interpretation of "pen register" language in the Patriot Act regarding the internet, but these examples are enough to make the point -- the domain of privacy protected by the Fourth Amendment has shrunk so far that I'm starting to wonder what's left.

And at least in these instances, it's not obvious what legitimate law enforcement purpose the Las Vegas request could possibly serve. In fact, one of the problems our government seems to have is that it's drowning in information, and unable to process what it has effectively. In the case of 9/11, for instance, some of the terrorists were already on watch lists and known to be in the country, and we had someone actually arrested for planning a similar kind of attack, in addition to clear indications of an upcoming attack. We failed, it seems to me, not because we didn't have enough information, but because we didn't process what we had. And I don't see how the process could have been improved by giving everyone in the FBI unfettered access to hotel records in Las Vegas.

How it could be used for blackmail, now that I can see. But would the men of character at the heart of Dubya's administration stoop to the abuses that we were standard practice for decades under J. Edgar Hoover? Perish the thought.

As I said before, imposing a police state certainly does make things easier for the police -- if they're competent, effective, and diligent in applying what tools they have. If they're not competent, it doesn't matter what you give them. Furthermore, there is no set of measures which will prevent all terrorist acts, no matter how draconian. (They happen against governments far nastier than ours -- the Saudis for instance. And against some, more often.) So if the next terrorist act will knock out the Bill of Rights, then it's only a matter of time. In that sense, the question is one of our national character -- whether we respond to terrorist acts (some of which must happen eventually) by surrendering our rights, or not. Preliminary soundings are not encouraging.

But Clarke is surely right that under some circumstances, Patriot Act style tools could be useful. Whether they are necessary to the job is a different question, which he was not asked and did not address.

Note: Misplaced a paragraph in editing. Fixed. Sigh...


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