Back in November of 2004, long before I ever thought about submitting my modest musings to places like LRC, I accomplished what is (or certainly should be) a life goal. Yes, I took part in that greatest of all democratic rituals — writing to a guy you don't know, who doesn't care about you, to complain about something he did, for which he holds no remorse, and for which he feels in no way beholden to you — I wrote to my Congressman! (They say admission is the first step. I feel better already.) The fact that my Congressman is Tom Reynolds — yes, the same Tom Reynolds who is currently deflecting questions about exactly when he knew his colleague Mark Foley liked 'em young — is just a bonus. (I have to tell you, when I first heard the term, "tender Roni" on some long-forgotten Bobby Brown song back in the day, I had no idea it would ever relate to the U.S. Congress!) Who says these guys aren't hip?
Actually though, what we're talking about here is my second letter, of sorts. My first contact with Congressman Reynolds was facilitated by some lobbying group who set up one of those e-mail portals in connection with "Freedom to Read Protection Act." That piece of legislation was ostensibly an attempt to "dial back" some of the power the USA Patriot Act supplied, specifically with regard to checking library records. I, like more than a few other Americans, believed allowing free and unfettered access to library records was a bit much. So I sent Reynolds an e-mail saying so. His office responded with a form letter than so incensed me that I responded with my first, last, and only full-scale letter to my congressman, the text of which I present in this essay.
I think it particularly fitting to publish this letter here and now, for several reasons, which include:
- Given that Reynolds is already in the news the subject is germane, particularly given that election time is just around the corner.
- Examining and exposing Reynolds' duplicity in his "canned" response to me fits the general paradigm of both this site and my past postings here.
- If this Foley thing grows legs, we might have seen our last of Congressmen Reynolds and hey, I might as well use this material before it's too late!
- It is ever instructive to examine the practices of our elected officials, lest we get the mistaken impression that they actually, well, work for us.
- At least now somebody will read it, since the chances of any of my elected officials having done so is slim.
Given that I've learned a few things since I wrote the letter, I will provide "updates" within the original text as appropriate.
What Did I Say in My Letter?
Date: November 30, 2004
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 you state:
"Contrary to 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."
While that 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.
Simply put, 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. [UPDATE: In retrospect, what really chapped my shorts was the after-the-fact denials and overt sand-bagging by the Administration. When erstwhile National Security Advisor Condoleeza Rice testified in a Congressional hearing that, "she couldn't remember if she had discussed the bin Laden memo with the President," I was certain she would get a timeout. She forgot! Maybe I could have believed her if she had said "my dog ate my homework" or something similar.]
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 says:
"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."
Certainly 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 [sic] of the Constitution. Exactly how can allowing secret searches not infringe upon the civil liberties of Americans? [UPDATE: It turns out that "secret searches" have long been a staple of law enforcement. I feel safer already!]
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.) [UPDATE: In retrospect, I have found no supporting data for this assertion.] 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 might suggest.
Wilton D. Alston
What Kind of Response Did I Get?
None. Nada. Zip. I can't say I was surprised though. It was, as I mentioned above, my second contact with the Congressman on these issues. He had already provided his standard responses and so I suspect the matter was done from his end. I really cannot blame him for not debating some loser from his congressional district. Given the realities of the electoral process in America, who cares what I thought anyway?
I should probably also mention that I wrote this letter back during the time that I willingly participated in a ritual that Butler Shaffer compares to the fine art of navel lint identification and retrieval. I think Professor Shaffer is being nice. As far as the political process and what it really represents, I especially like this analogy, which I heard during an on-line debate: "The modern left and right (especially in the U.S., but also in much of Europe) are really just two children sitting in front of a really fun one-player video game and arguing about whose turn it is." Indeed.
Inside the game are all of us and the rest of the world. Elections are the opportunity for us "contestants" inside the game to select which guy gets to use the joystick first. Since different "players" have different tendencies, this results in different game strategy. One guy likes to "shoot" minorities, gays, or women first. The other guy likes to shoot the middle class, small business and hippies early in his turn.
As long as the State exists, there is only one way to get out of the game — become one of the players who does the shooting. This plan of action has recently been more and more successfully employed by representatives of many of the folks usually found ducking laser shots inside the game. So now, blacks and other ostensible minorities, along with women, gays, and the like, take their rightful turns on that joystick! Of course, all the rest of us are still inside, and regardless of who has the stick eventually, to reach the higher levels, the players have to "pop a cap" in every kind of contestant inside the game, including those with whom they might otherwise identify. And so it goes. I look forward to the day when I have as many consecutive I-did-not-vote-today elections under my belt as Professor Shaffer. I already have a good start.
One other point I made in the letter deserves still more emphasis. The premise that we can toughen the laws and affect the amount of terrorism is laughable. Imagine looking a young jihadist in the eyes and saying something like, "We're taking away your right to habeas corpus!" Would this have any effect? In fact, is there any infringement of rights, or due process, or any other supposed right or privilege that would deter a person who has decided that life itself is not precious enough to worry about? Of course not. And whether or not this terrorist is motivated by religiosity — which is the current myth — or by the practical, strategic premise of suicide bombing, as Dr. Robert A. Pape's research seems to indicate is largely irrelevant. However, if Dr. Pape is correct, there is a course of action that would yield better results. Not surprisingly, those options do not appear to be on the table.
Taking away rights only affects those for whom those rights actually hold sway. That is limited principally to those whom these laws ostensibly protect. So the USA PATRIOT Act infringes on the rights of people who don't care about rights, in the name of protecting those who do care about rights but infringes on those people too. Talk about irony. And it does all this without really dissuading the people who might actually commit such crimes or mitigating the likely cause of their anger — our poorly-conceived, and even more poorly-implemented foreign policy. If this wasn't so stupid it would make an excellent premise for a reality series or a cartoon. I can't think of a good name, but I know Elmer Fudd would be a main character. "I'm hunting terra-ists!"
So there you have it. I should mention that I also copied my state's two senators on that letter as well. I'm lucky enough at that time to have not one, but two Democratic Senators — Hillary Clinton and Chuck Schumer — in addition to my Republican Congressman. For those scoring at home, neither of them wrote back either. That's just as well though, because from all indications they hadn't read the USA Patriot Act before voting either! And now, one of those senators could construct a successful campaign for the White House, becoming both the first woman and the first spouse of a previous president to sit in the big chair. Say, did you hear the latest? Senator Clinton apparently feels that torture might be acceptable in some cases.
It just gets better and better — or worse and worse — depending upon your point of view.
Wilt Alston [send him mail] lives in Rochester, NY, with his wife and three children. When he's not training for a marathon or furthering his part-time study of libertarian philosophy, he works as a principal research scientist in transportation safety, focusing primarily on the safety of subway and freight train control systems.