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Cato vs. Heritage Cage Match

October 23rd, 2009 · 5 Comments

xI’ve been debating the Heritage Foundation’s Jena Baker McNeill on the USA PATRIOT Act over at the LA Times all week: You can check out round one and round two, with the final bout scheduled for this afternoon. It’s frankly been a bit frustrating so far—I think it’s telling that PATRIOT defenders are so reluctant to actually engage the issue at the level of the specific reforms under consideration, to the point of insisting that I must really hold a cartoonish position I went out of my way to disclaim.  We’ll see if we get something more substantial today, I suppose.

Addendum: Round three is now up.  Longer/snarkier first draft that the LA Times wisely toned down below the fold.

Let’s be honest: None of us were in much mood for cool deliberation in the weeks immediately following 9/11. Under the best of circumstances, it would have been a feat to get everything right in a 300-page bill that makes dramatic changes to dozens of complex national security statutes. In the panicked aftermath of a horrific terror attack, it would have been nothing short of miraculous. So you’ll have to forgive me, Jena, if I’m more interested in looking back to see where a better balance could have been struck in light of what we now know.

Let’s clear some brush first. You keep invoking the national security equivalent of Lisa Simpson’s tiger-repellant rock: Some doubt the rock’s magic powers, but I sure don’t see any tigers around!  If we actually pay attention to the institutional sources of pre–9/11 intelligence failure, we find that an array of internal structural problems and simple blunders, not some paucity of investigative tools, deserve the lion’s share of the blame. Inadequate information sharing and coordination, which could have been substantially remedied even without legislative change, were indeed part of the problem—but I’m mystified by how often you recur to this aspect of the law, which is largely irrelevant to the actual reform proposals currently on the table. Meanwhile, the successful investigations since 9/11—only a few of which actually involved “plots” for attacks in the U.S.—appear to have depended a lot more on good human intelligence and informants in the community than broad new surveillance powers.

If we were really engaged in a “fundamental debate” over whether to “squash” Patriot authority wholesale—if the procedural safeguards civil libertarians actually want to discuss were, as you bizarrely insist, just some kind of elaborate ruse—then perhaps an analysis at the magic rock level would be adequate. But there are many more specific questions the magic rock cannot solve for us: How narrowly should the target description in a roving wiretap application be drawn to avoid issuing overbroad “John Doe” warrants? What kind of evidentiary showing is appropriate when investigators use National Security Letters—issued by the tens of thousands each year—to gather financial records or track Internet activity? Does the creation of vast databases of personal information about mostly innocent Americans for the purposes of “pattern analysis” yield an intelligence benefit that justifies the risk to privacy involved? What procedures might avoid the already-evident problem of “mission creep,” where extraordinary tools justified on the grounds of their utility to counterterror efforts end up primarily being used for ordinary criminal cases? What rules should govern the handling of information about innocents that is collected?

For the most part, you’ve chosen to gloss these important questions in order to engage an imaginary opponent in a Glinda the Good Witch debate over whether the Patriot Act is a good law or a bad law. I doubt there is any useful discussion to be had at that level. You do grace us with your take on one particular reform, though it’s not among those still under consideration: Russ Feingold’s proposed requirement that National Security Letters be used to identify terror suspects (as opposed to gathering data about already-known targets) only when they are the “least intrusive means” to do so. You worry that this is too “subjective” a standard, and that hapless investigators uncertain about how to apply it will be too cautious. But you must know that this is not how it works: The Attorney General develops specific guidelines that give content to the more abstract requirements of statute. Agents are not required to make complex legal determinations on their own, and there is no reason in principle to expect this to be a more serious problem than fleshing out the meaning of “probable cause,” or any number of other standards that apply to government search and seizure.

And this brings us to the real bone of contention. The ultimate investigative “flexibility” is a total lack of standards—the unfettered general warrants the Founding Fathers so despised. But we don’t allow those, for the general reason that they’re inconsistent with American values, and for the specific reason that before we imposed some restraints on intelligence surveillance in the 1970s, we know that domestic spying authority was systematically abused, on a massive scale, for political purposes unrelated to national security.  Congressional oversight—your preferred remedy—did ultimately bring these to light, albeit years or decades after the fact, and the response of Congress was to impose the very restraints whose dilution you now applaud. The risk that history will repeat itself is transparently real, even if you don’t deem the new abuses that have managed to slip through the veil of secrecy sufficiently “dramatic” yet.

What we need is an analysis of the tradeoffs. We are so used to talking about the balance of “liberty vs. security” that it’s easy to forget they’re not always in conflict: Some restraints on government power leave us much more free without seriously impeding legitimate investigations. You’ve had three days to explain how the actual modifications to the law under consideration would deprive investigators of intelligence more valuable than the privacy of thousands of citizens. Your refusal to even engage the argument at that level stands, if I may borrow your phrase, as a “mute but powerful witness” to the deep unseriousness of your position.

Tags: Privacy and Surveillance · Self Promotion



5 responses so far ↓

  • 1 Emily // Oct 23, 2009 at 4:49 pm

    It makes you wonder if they know they don’t have a case, doesn’t it? Or is it just more of that peculiar FOX-y/conservative tendency to be (willfully?) ignorant of the issues for the sake of ideology?

  • 2 Jesse Walker // Oct 23, 2009 at 9:27 pm

    So does the LA Times not bother to link from one round of the dustups to all the others? Or am I just blind?

  • 3 Bob Mitchells // Oct 30, 2009 at 9:16 pm


    Don’t get me wrong I’m one of your most avid readers, and I would love to model my writing off yours. Your writing is amazing, you are one of the best writers of our time in journalism.Jesus Christ! I wish i could write a two thousand word blog post after a weekend of partying.
    However, I must respectfully disagree on principle your recent statements. How could you say that the Patriot Act must be preserved! You should oppose it on principle, rather you have sold out for beltway respectability.
    Go ahead and tear my post apart, I was only educated until grade eleven. Go ahead and rip it apart with your typical verbose veracity

  • 4 Julian Sanchez // Nov 3, 2009 at 12:01 am

    The PATRIOT Act contains some 150 reforms of dauntingly complex surveillance law over the course of some 300 pages. Some of it is perfectly reasonable. I have no interest in having a fight about “THE Patriot Act” where my opponent picks out the two or three most beneficial pieces and asks why I want to get rid of them. There are about a dozen provisions of the law that have serious problems, and I would much rather have a debate where we talk about why specific reforms X, Y, and Z should NOT be made to those provisions. It has nothing to do with “Beltway respectability”; it is about forcing defenders of PATRIOT to talk about the bits that are really dangerous rather than having some airy-fairy argument about “security” or “the tools investigators need” without looking at the particular problems with the legislation.

  • 5 Julian Sanchez // Nov 3, 2009 at 12:09 am

    Put it another way: If you want to repeal all of “the Patriot Act” on principle, suppose I get to pick 10 of those 150 provisions, and we have a debate about whether or not we want to keep those. Is that a bet you want to take? Do you know enough about what’s in all 150 of those clauses that you’re absolutely certain I couldn’t find 10 that are a net benefit? Because I do know what’s in there, and I’m pretty sure I could.