Before the Patriot Act

This has been bugging me for a while. Being on the more relaxed schedule of the summer has had me at home quite a bit more and I have started to watch a good deal of CNN in the morning (ok a lot of CNN, a fair amount of SportsCenter, and a fairly embarrassing amount of Star Trek Deep Space Nine). A little while back I happened to hear our President making a speech
at the Ohio State Highway Patrol Academy. It was principally a homeland security speech. Here's the part that has stuck with me the most:

"Second, we need to renew the critical provisions of the Patriot Act that allow investigators to use the same tools against terrorists that they already use against other criminals. Before the Patriot Act, it was easier to track the phone contacts of a drug dealer than the phone contacts of an enemy operative. Before the Patriot Act, it was easier to get the credit card receipts of a tax cheat than an al Qaeda bank-roller. Before the Patriot Act, agents could use wiretaps to investigate a person committing mail fraud, but not to investigate a foreign terrorist. The Patriot Act corrected all these pointless double standards -- and America is safer as a result."

I swear, right there in real time I said "oh, I get it, before the Patriot Act you had to have actually been suspected of committing a crime before they could violate your rights - and now you don't."

I'm sure its more complicated than that, and I'm sure the word "conspiracy" figures prominently in the discussion, but in a lot of ways the whole thing had me thinking about George Carlin. Carlin had a routine about sin where he explained that in the eyes of God you didn't actually have to do something, all you had to do was "wanna." I couldn't find the quote, but it goes something like

Wake up in the morning and think you'll go downtown and rob a bank, save the bus fare, you already did it!

Somehow this feels like what they have been able to do under the new rules. A person doesn't have to have broken the law, they just have to be someone they think will be likely to break the law - or is going to break the law.

How can they know that?

Doesn't there need to be an overt act? I mean, if you are going to kill someone and you go to buy a gun they can't arrest you for that - for buying a gun, that's not illegal. They can't even follow you home and watch to see if you are going to do something. You have to do more than "wanna" you have to actually attempt to do it. If you plan to rob a store and you go into the store to case the security they can't arrest you for that. You haven't committed a crime. If store security thinks you are going to take something, they can follow you around the store, but they don't call the cops and have them follow you home, tap your phone, and pull your credit card records to see how you've paid for the things in your house.

If you are a terrorist and you come to the US legally and enroll in flight lessons have you broken a law? What if you are a US citizen who sympathizes with a terrorist cause and you buy a bunch of guns legally? Have they broken the law? But aren't these the cases we are trying to get at with the powers granted in the Patriot Act?

If you are a terrorist, and we know you to be a terrorist, haven't you already done something to make you a terrorist? Otherwise how can we be sure you are a terrorist? Because you've hung out with terrorists? Wouldn't that be guilt by association? I didn't think we did that in this country. And if you had done something to make you a terrorist, then why isn't there a warrant on you we can execute - or why can't you be turned away at immigration?

And if we can't establish that you are a terrorist to such a degree that we can already arrest you or deny you entrance into the US and you haven't as yet done anything illegal, then why are we watching you?

OK. I'll give you that one. Intelligence is not law enforcement. Guilt by association is worth watching I guess. But we're on a slippery slope here. In a particularly dicey part of policy. In a part of the scheme where it seems like we need more oversite, not less.

Why do agencies need this kind of unfettered, unmonitored freedom to operate? Why can't we have a special court system, a group of judges who's only job is to issue these kinds of warrants on an expedited basis, maybe three judge panels where you only need a majority to get what you are asking for so one single judge couldn't stand in the way, and a system that allows for immediate, expedited appeals. At least this way there would be some monitoring and some control. It need not happen in plain sight, but it ought to be happening.

Also, I guess what we might need here are not new authorities, but new law. Don't make it so that it is easier to investigate someone who hasn't broken the law. Make it easier for someone who intends to do harm to break the law and then investigate them. Tougher weapons laws, tougher immigration laws, and tougher conspiracy laws. Make sure they've actually done something other than associated with fringe elements. I guess this would take more time to put in place, but it doesn't come with the same threat to the rest of the population that expanded powers to the enforcement community does.

Also, I have to say, I think the President's speech is disingenuous. It makes it sound like wiretaps and financial records of terrorists were unavailable. That can't be true. You make your case, likely you get your tap or your info. The key word is "easier."

Truth be told, if someone hasn't actually done something, something that could get a warrant issued, I'm not sure if it should be any easier.