Written by Julian Sanchez, a research fellow at the Cato Institute. Posted with permission from Cato @ Liberty.
The Atlantic‘s Conor Friedersdorf gives us a disturbing glimpse of what American schoolchildren are being taught about the War on Terror, in the form of excerpts from a widely-used high school history textbook. The whole piece is a disturbing catalog of hilarious propaganda presented as fact to kids who are increasingly too young to remember much about the immediate aftermath the 9/11 attacks, but I figured I’d focus on the paragraph dealing with the Patriot Act, which manages to get a truly impressive number of things wrong in a short space.
The President also asked Congress to pass legislation to help law enforcement agencies track down terrorist suspects. Drafting the legislation took time. Congress had to balance Americans’ Fourth Amendment protections against unreasonable search and seizure with the need to increase security.
I suppose in some strict sense all events “take time,” but this is a very strange way to describe a 342-page piece of legislation amending more than 15 complex federal statutes, the first version of which was introduced on October 2, and which had been signed into law by October 26. The reason it could be done done so quickly, of course, was that most of the reforms in the bill had long been on the intelligence community’s wish list, and were waiting in a desk drawer for an opportune moment. Last minute substitutions of the draft language meant that few if any legislators had actually read the law they ultimately passed, which makes it hard to argue with a straight face that they were seriously engaged in “balancing” anything.
President Bush signed the new antiterrorist bill – known as the USA Patriot Act – into law in October 2001. The new law allowed secret searches to avoid tipping off suspects in terrorism cases.
Well, that was the sales pitch, anyway. In reality, the FBI already had authority under the Foreign Intelligence Surveillance Act to conduct covert searches in counterterrorism investigations. It should have come as no surprise, then, that this expanded “sneak and peak” authority was almost never used for terrorism cases. In 2008, government investigators sought 763 “sneak and peak” warrants, of which exactly three involved terrorism. The vast majority—65 percent—were drug cases.
It also allowed authorities to obtain a single nationwide search warrant that could be used anywhere. The law also made it easier to wiretap suspects, and it allowed authorities to track e-mail and seize voicemail.
This is a bit weird, because one of the few things the Patriot Act didn’t do was substantially alter the standards for obtaining a wiretap—except that looser FISA warrants could now be obtained in cases where a “significant” rather than “primary” purpose was to acquire foreign intelligence information. The Bush Administration did consider asking Congress to expand wiretap authority, but fearing refusal, decided to simply ignore the law and order the National Security Agency to launch its now-infamous program of warrantless wiretaps. The wording here also, somewhat bizarrely, implies that authorities had no ability to track email or seize voicemail until late 2001. It would be more accurate to say that the act lowered the standard police had to meet to obtain voicemail somewhat, and clarified that certain surveillance tools initially designed for telephone networks could also be used for digital communications, which was more a codification of existing practice than a real change.
Meanwhile, some of the most controversial elements of the Patriot Act go unmentioned. Nothing about “John Doe” roving wiretaps. Nothing about the incredible expansion of National Security Letter authorities. Nothing about Section 215 “tangible thing” orders. It sounds so benign that you’d wonder why anyone was ever opposed to the legislation—except there’s nothing any of the passages Friedersdorf quotes to indicate that anyone did oppose it. I guess Congress did such a good and careful job “balancing” privacy and security that everyone applauded the wise president’s efforts to help track down terrorists.
To borrow the former president’s famous query: Is our children learning? Maybe—but they don’t seem to be learning much that will prepare them to be critical thinkers about security policy, or good stewards of cherished liberties.