They Walk Among Us

Wired describes the curious situation of the Patriot Act. What does it prohibit? Government can’t exactly tell you. Senator Ron Wyden (D-Oregon), a ranking member of the Senate Intelligence Committee, says the government has classified the way in which it intends to interpret certain provisions. You can’t know how government intends to implement it. Wyden says:


“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information. But one component of the Patriot Act in particular gives him immense pause: the so-called “business-records provision,” which empowers the FBI to get businesses, medical offices, banks and other organizations to turn over any “tangible things” it deems relevant to a security investigation.

“It is fair to say that the business-records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

What exactly is “it”? Whatever it is, government needs it. MSNBC reports that “minutes before a midnight deadline, President Barack Obama signed into law a four-year extension of post-Sept. 11 powers to search records and conduct roving wiretaps in pursuit of terrorists. … With Obama in France, the White House said the president used an autopen machine that holds a pen and signs his actual signature. It is only used with proper authorization of the president.”


Congress bumped up against the deadline mainly because of the stubborn resistance from a single senator, Republican freshman Rand Paul of Kentucky, who saw the terrorist-hunting powers as an abuse of privacy rights. …

The measure would add four years to the legal life of roving wiretaps — those authorized for a person rather than a communications line or device — of court-ordered searches of business records and of surveillance of non-American “lone wolf” suspects without confirmed ties to terrorist groups. …

The Obama administration says that without the three authorities the FBI might not be able to obtain information on terrorist plotting inside the U.S. and that a terrorist who communicates using different cell phones and email accounts could escape timely surveillance. …

Senate Majority Leader Harry Reid said on the Senate floor Wednesday. In unusually personal criticism of a fellow senator, he warned that Paul, by blocking swift passage of the bill, “is threatening to take away the best tools we have for stopping them.”

Is Harry Reid correct in saying that the government needs these tools? How would we know? What government can do — and what they the interpret the act as allowing — is classified. Wyden wants to uncover the “secret interpretation of the law” while protecting “sources and methods”. Part of the problem Wyden may encounter is that any non-trivial disclosure of legal interpretation will allow the public to deduce a great deal about the sources and methods. In other words, if the government told us what it thought it could legally do the public could figure out how they were doing it. Wired suggests that “geolocation information” from cellphones might be an area that Patriot Act thinks ought to be accessible to government and points out that Wyden has sponsored a bill that would provide legal protections for such information. (Readers of “No Way In” may find this a familiar theme.)


But that is speculation.

While some members of the public may have been comforted by President Obama’s announced intention to fight the War on Terror as if it were a law enforcement problem, some probably realized from the beginning that bringing operations traditionally associated with war under the law-enforcement roof might hold certain dangers. The passage of the Patriot Act ought to have been a calculated risk. To rely upon it for prosecuting terrorism and institutionalize its provisions may bring more peril. Treating terrorists like criminals changes the way society treats suspects. The intention to bring KSM or OBL to trial would inevitably create the need for interpretations which would blur the distinction between the way enemies and civilian suspects are treated. Since one-size (the law enforcement size) had to fit all, you had to enlarge the shoe to fit the biggest feet.

If declaring that “America will never be at war with [this or that]” in practice means that you are in a low-intensity conflict with everyone then its benefits may be doubtful. A policy designed for the seating of supposed allies may mean that someone has to stand. The abolition of war and its replacement by concepts like R2P, kinetic military action, law enforcement and intelligence operations can ultimately backfire on Western society. Abolishing the bright line between activities of peace and belligerence may not be all its cracked up to be. For one thing, wars traditionally end. When do the activities which have now replaced it terminate? Or do they just go on and on?


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