Thomas M. Reynolds
Congress of the United States
322 Cannon House Office Building
Washington, DC 20515
Re: August 6, 2004 Letter on the Freedom to Read Amendment —
USA PATRIOT Act
Dear Congressman Reynolds:
Having received your kind letter and read it in context with my
own research about the USA PATRIOT Act, I find myself still a little
confused about what the law actually does versus what you state
in your response to my initial communication. In truth, my concerns
extend beyond the Freedom to Read Amendment. I will attempt, in
as direct a manner as possible, to outline my feelings about both
this measure and by implication your apparent opinion about it.
Given that both your letter and my understanding of the broad and
draconian powers granted by the Act provide a lot of field to plow,
I will start with specific points in your letter and go from there.
To whit, your letter states:
The USA PATRIOT
Act was enacted to deter and punish terrorist acts in the United
States and around the world and to enhance law enforcement tools
of investigation. In these uncertain times where terrorism is a
constant threat to the United States both domestically and abroad,
the U.S. Department of Justice needs to be able to seek out and
capture suspected terrorists. While the USA PATRIOT Act does set
new boundaries for law enforcement officials, it also guards against
the civil liberty violations that concern you.
With all due respect,
some of this borders on absurd. Logically how can the Act possibly
set wider boundaries on law enforcement and simultaneously guard
against civil liberty violations? The preexisting laws set specific
boundaries that ostensibly hand-cuffed law enforcement more than
believed optimal for catching terrorists. While that point is patently
debatable, to say that the extension of those powers actually guards
civil liberties is laughable. Furthermore, I am having trouble understanding
how an extension of the powers of law enforcement deters terrorists.
Almost by definition, terrorists exist outside the law. They apparently
have very little fear of dying, much less any fear of breaking the
law; therefore, the threat of law enforcement seems terribly unlikely
to deter them. Where is the logic?
I believe it was Thomas
Jefferson who, quoting legal theorist Cesare Beccaria, opined, "Laws
that forbid the carrying of arms…disarm only those who are neither
inclined nor determined to commit crimes…Such laws make things
worse for the assaulted and better for the assailants." While
the USA PATRIOT Act has little to do with carrying a firearm, I
believe the general message of who is being "disarmed"
by it, versus who should be the target of more intense scrutiny
is clear. One could successfully argue that investigations and their
concomitant prosecutions would be easier with the extensions granted
by the Act, particularly if things like due process and probable
cause requirements were removed. Certainly that would speak to the
"punish" portion of your statement above, but that is
after the fact. To my admittedly simple way of thinking, deterrence
occurs before the fact and the Act does little, if anything, to
enhance deterrence given the premise above.
Further in your letter
reports, the Federal Bureau of Investigation is not empowered under
section 215 of the USA PATRIOT Act to obtain any records without
a court order.
may be true, my research shows that the definition of "financial
institution" has been stretched to include virtually every
business in the U.S., from money transmitters to car dealers, from
jewelers to stockbrokers. In effect, almost every bank or commercial
business with which an American has interaction is now obligated
to report activities to the government, if deemed "suspicious."
The problems with this are obvious. And frankly, how can my neighborhood
banker determine what is suspicious anyway? Furthermore, how does
the law enforcement community plan to triage these additional "sightings"?
It would seem to me that the Act leads inexorably to a ballooning
of the government that flies in the face of the conservative ideals
of which the Founders were so fond.
9/11 occurred despite ample information already in the hands of
the law enforcement community and despite the availability of a
workable plan to attack the terrorists on their turf. (That plan
was researched, developed, and published by Richard Clark, et.al.,
many months before the attacks. The President and his toadies successfully
ignored that plan until about September 12th, 2001, but I
digress.) To now seek to justify the need for more information,
and more power along with it seems ill-conceived at best. In fact,
Section 215 allows the FBI to order any person or entity to turn
over "any tangible things" as long as the FBI specifies
the order is "for an authorized investigation…to protect
against international terrorism or clandestine intelligence activities."
I am having a hard time finding the probable cause protections in
that extension of powers. Again I remind you that the information
that should have led to the capture of every single terrorist was
available before they performed their heinous actions — despite
the pre-existing law enforcement guidelines. (I infer that the information
was readily available based, in part, upon the speed with which
the national media knew not only the terrorists’ names and citizenships,
but also where they liked to shop for pre-flight entertainment.)
Finally, your letter
The USA PATRIOT
Act was not passed so that the government would be able to hinder
civil liberties, but to make sure we can protect the freedoms that
define the United States as a great nation.
you and I both want the U.S. to continue to be great although it
appears that we have some disagreement about how that goal is best
served. Just as important, I would argue, is the continuation of
protections spelled out in the Constitution of the United States.
With all due respect, I am baffled about how anyone sworn to protect
that document could vote for the USA PATRIOT Act. For example, Section
213 eliminates the previous requirement that law enforcement provide
a suspect, subject to a search warrant, timely notice of that search.
The result is that the USA PATRIOT Act now apparently allows "secret
searches." This too seems completely counter to seminal principals
of the Constitution. Exactly how can allowing secret searches not
infringe upon the civil liberties of Americans?
In conclusion, it is
my firm view that the USA PATRIOT Act is not necessary to fight
terrorism. Given that a lack of information did not cause the catastrophe,
a large increase of available (and possibly worthless) information
will not stop the next attack. (The fact that the Clinton Administration
thwarted several terrorist attacks on par with 9/11 during their
eight years in office, all while abiding by the preexisting law
enforcement guidelines, would seem to be clear testimony to this.)
On the other hand, it would seem axiomatic that if the pre-existing
large bureaucracy could not respond to warnings as direct as the
now-infamous "bin Laden determined to attack U.S." information,
an even larger bureaucracy is unlikely to perform at a substantially
higher level. The USA PATRIOT Act was a knee-jerk reaction to the
attacks of 9/11. It was rushed into law without proper review. The
sooner our legislators own up to the facts and stop defending this
abomination to freedom, the better. I will await further information
you can provide, corrections you can offer, or other research you
Wilton D. Alston
D. Alston [send him mail]
is Principal Research Scientist at Battelle.