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 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. 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 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 might suggest.
Sincerely, Wilton D. Alston
April 14, 2005