The USA PATRIOT Act, "sneak and peek"

[sithknight]

As a new law school graduate, I recently conducted research and a debate regarding the "sneak and peak" provisions of the PATRIOT Act.
In light of the profound shift it actually represents to our system of criminal procedure and civil rights, I thought I'd send my conclusions along. I will also include references in order to make it easy to fact check my assertions.


1)the "sneak and peak" provisions are included in the act at section 213 and amend the US Code at 18USC3103a by creating a new subsection: "b".
2)This section of the code is the general warrants provision, and thus for any type of search, related to terrorism or not, the new rule of law is that notice may be indefinitely delayed.
3)Arguments that the DOJ and FBI will not use it for non-terror searches is inconsistent with amending the statutory mechanism for all warrants and is likewise not very forward looking regarding application of the power.

The administration claims we need this tool. Prior to the PATRIOT act we already had it:
A) Title III (18 USC 2510-2520) allowed for 'delayed notice' searches by way of electronic bugs and other spying techniques. The public was protected by restricting the scope to a list of serious predicate crimes. By amending the general warrants provision we lose that protection.
B)Prior to 9/11 we could always domestically spy on "foreign agents" for any reason under FISA (50 USC 1861). The only requirement was that the state had to show that the person (even a us citizen) was in some way an "agent" of a foreign power.
C)The US Government doesn't need a warrant to spy outside of our borders.

In conclusion, the needs asserted by the DOJ and Bush were illusionary. Even granting them a measure of substance for argument's sake; the approach taken by the PATRIOT Act tends to be a blunt way to correct minor defects. Simply expanding the predicate crime list would have made common sense and have been effective.
The US Supreme Court has held that "there is no constitutional requirement of notice" for the fourth amendment. Yet the entire tradition of our justice system has been otherwise.
We should all phone our representatives and senators in congress and demand that our civil liberties not be needlessly sacrificed in the fight against terrorism. (Which is really just common crime anyways)

[iconoclastic cat]

1. Holy crap!

That's some good work! Thanks!

[sithknight]

3. thanks

(insert grin here) I actually wound up debating the topic against a neo-con from the Federalist society. At the end of the whole thing, the audience was asked to "vote" on who had the best argument by exiting via a given door. I won. 70:30 :)

[OneBlueSky]

2. one thing we tend to forget about the Patriot Act . . .

that I tend to think is quite telling is the fact that they had this thing all ready to go days after 9/11 . . . which means they were planning to enact it at some point, and were just waiting for the right opportunity . . .

the question we should be asking is "Why?" . . . prior to 9/11, there didn't seem to be any crying need for such legislation, but there it was, all set to go . . . Why? . . . was it because they knew 9/11 was going to happen? . . . or simply because they wanted to start on the road to Bush's dictatorship? . . . ("It would be a lot easier if this were a dictatorship . . . as long as I was the dictator." G.W. Bush) . . .

this is something that has bothered me ever since this POS legislation was enacted . . . but, of course, the media has never had any interest in pursuing the question . . . Why? . . .

Why? . . . Why? . . . Why? . . .

[iconoclastic cat]

4. Well as H2O Man might say,

Ask, who benefits, and how do they benefit?

[sithknight]

5. Why? Because...

...we already know where it came from. The sad thing is, that this provision has very little to do with terrorism or with Bush. The DOJ has been agitating for years to get this stuff passed. They were just opportunistic scum and dusted it off in the wake of 9/11 to railroad it through.

However, let me tell you: there are some good things about the PATRIOT Act. Here is my one example:

Let's say the Feds wanted to trace an email. Prior to the act, they would have to begin in jurisdiction X where the email was sent and apply for a warrant there. They would then trace it back to the computer that had actually routed the data for reciept, which is likely in jurisdiction Y.
However, since email gets bounced along to multiple computers, their search hasn't ended and now they have to get a second warrant in jurisdiction Y to trace it to jurisdiction Z...and so on and so forth. The Feds had to get four, five, plus warrants in different states, from different judges to track down who it is that is sending child porn. All the while taking more time, and possibly causing more harm.

Now, under the PATRIOT Act a warrant issued in jurisdiction X is good across the country. (shrug) just makes more sense to me in this digital age.

[Sugarbleus]

6. I see your point on this type of issue. But I don't know why we

need a Patriot Act to get the job done. The Patriot Act is sooooooooooooooooo intrusive and doesn't solely target terrorists and/or extreme threats only. It sounds like they want to have their damned noses in everybodys business whenever they feel like it. Not good.

It's like someone said, the DOJ has a hard on for all sorts of people they deem "baddies". I dated a guy from DOJ once.......wow,was he a weirdo. All during the date, as we drove down the highway he was looking at license plates and mumbling stuff about who it was in that car: pimp, dealer whatever. It was creepy. I DON'T LIKE THAT SHIT.

Great Post SithKnight.

[sithknight]

7. (a big shrug)

Ehh, you're right: the sum total of the Act is utter shite. But in the final analysis I think we just need to not attack the whole thing, but rather get selective.

Here is why: since there are a few soild things the act did (though most of it is in weird banking stuff that I don't understand), the Repubs will use that in their talking points to 'prove' the act is a good thing. If we can know where their gonna hit, and focus on the really nasty stuff then we can maybe stop it before it takes root.

[Sugarbleus]

9. Yeah, I'm for gettin' the REALLY "bad guys"....just leave the rest of us

alone. Let regular law enforcement deal with regular citizens and regular crimes.

That part about banking sounds like a double edged sword too. Yikes.

I just filled out a form this afternoon for funding (of a sort). That form wanted to know every single little thing about every single thing we or anyone in this house ever did or earned or ever MIGHT earn, info on every single asset now or might be coming later AND it said by signing the document, they would be allowed to release that info (especially the financial info) to law enforcement authorities??????????????????????? as well as other agencies for specific purposes. I was outraged. They have me over the barrel though. By not signing I would NOT receive the benefits/funding I was asking for. This is the FIRST time that has ever happened in this particular matter. Threats of Prison, Huge fines, "bannishment" (sic)

Then they threatened to verify everything electronically and "I'd better be sure I hadn't signed falsly or else" God forbid I should forget to cross my tees and dot my I's :wow: Gestapo?
Geeeeeeeeeeeeez.

[PerpetualYnquisitive]

8. Extortion by Anthrax

From CooperativeResearch.org

September 11, 2001

Some White House personnel, including Vice President Cheney's staff, are given Cipro, the anti-anthrax drug, and told to take it regularly on the evening after the attacks. Judicial Watch later sues the Bush Administration to release documents showing who knew what and when, and why Presidential staff were protected while Senators, Congresspeople and others were not.

http://www.cooperativeresearch.org/item.jsp?item=a091101cipro

September 18, 2001

The first anthrax letters are mailed out, two days after the anti-terrorism bill Patriot Act is first proposed. But the anthrax crisis won't begin until October 4 with the first confirmed sickness. With only one week between 9/11 and the first mailing, doesn't it seem likely planning for the anthrax attacks began before 9/11

http://www.cooperativeresearch.org/item.jsp?item=a091801firstanthrax

October 2, 2001

The “anti-terrorism” Patriot Act is introduced in Congress, but is not well received by all. One day later, Senate Majority Leader and future anthrax target Tom Daschle (D) says he doubts the Senate will take up this bill in the one week timetable the administration wants. As head of the Senate, Daschle has great power to block or slow passage of the bill. Attorney General Ashcroft accuses Senate Democrats of dragging their feet. On October 4, Senate Judiciary Committee Chairman and future anthrax target Patrick Leahy (D) accuses the Bush administration of reneging on an agreement on the anti-terrorist bill. Leahy is in a key position to block or slow the bill. Some warn that “lawmakers are overlooking constitutional flaws in their rush to meet the administration's timetable.” Two days later, Ashcroft complains about “the rather slow pace …over his request for law enforcement powers… Hard feelings remain.” The anthrax letters to Daschle and Leahy are sent out on October 9 and difficulties in passing the Act continue (see October 9, 2001). Could Daschle and Leahy have been targeted by some person or entity who wanted to see the Patriot Act pass?

http://www.cooperativeresearch.org/item.jsp?item=a100201patriotact

October 9, 2001

Senator Feingold (D) blocks an attempt to rush the USA Patriot Act to a vote with little debate and no opportunity for amendments. Feingold criticizes the bill as a threat to liberty. One day earlier, in the story “Cracks in Bipartisanship Start to Show,” the Washington Post reports, “Congress has lost some of the shock-induced unity with which it first responded to the <9/11> attacks.” Also on October 9, identical anthrax letters are postmarked in Trenton, New Jersey, with lethal doses to Senators Daschle and Leahy. Inside both letters are the words: “Death to America, Death to Israel, Allah is Great”

http://www.cooperativeresearch.org/item.jsp?item=a100901targets

October 10-11, 2001

The FBI allows the original batch of the Ames strain of anthrax to be destroyed, making tracing the anthrax type more difficult. Suspicions that the anthrax used in the letters was the Ames strain are confirmed on October 17. What possible excuse can the FBI have for allowing this destruction, especially when the Ames strain was already suspected?

http://www.cooperativeresearch.org/item.jsp?item=a101001ames


Things that make you go HMMM.