Patriot Act Hysteria -- A Trip Down Memory Lane:
Back in 2002 to 2005, it was common for the media to go nuts whenever anyone claimed that anything bad that happened was related to the Patriot Act. Someone would trip on a banana peel and announce that the banana peel was put there by the Patriot Act, and TV and major newspapers would go bonkers over the alleged abuse. ("Why is the government using the Patriot Act to place banana peels on the sidewalk?!?!? Why is it assaulting innocent Americans? This has nothing to do with terrorism!!").
It was kind of fun to poke holes in these stories, in part because it was so easy: All you needed to do was actually read the Patriot Act and have some basic understanding of the laws that it amended. For some reason I will probably never understand, this basic step occurred to very few people actually talking about the Patriot Act to and in the media. But so it goes.
Anyway, this trip down memory lane is inspired by a recent case of Patriot Act hysteria — the case of a 16-year old who was arrested for making bomb threats at Purdue University. The FBI obtained an search and arrest warrant for the 16 year-old, came to his parents home, and arrested him and searched the home. He was arrested, formally charged, appointed a lawyer, and has had a few court appearances already.
What makes the story big news is that the kid's mom purports to believe that her son is entirely innocent and that the Government took him away under the Patriot Act in violation of all of his constitutional rights. A local TV station and a radio show apparently didn't check on whether the claims had any validity — or even whether the law was as the mom described — and they ran the story. The written version of the TV report is here, and the video version — which is really the best part, I think — is here. The story then took off across the net.
I thought about poking holes in this story just for old times' sake, but Kevin Poulsen of Wired News got there first. He has two great posts on this: Bloggers, TV, Go Nuts Over Misleading ‘Patriot Act’ Arrest Claim. He then follows up with a bit more about the evidence of what the teenager did — and what the mother knew — in this post: Teenage Bomb Threat Suspect Was Internet Prank-Call Star. DOJ's press release in response to the misleading coverage is here. There are a lot of gems in Poulsen's coverage — very much worth reading.
Finally, I'll add a postscript that shouldn't be necessary but probably is. Pointing out that almost all the stories of alleged "Patriot Act abuses" have nothing to do with the Patriot Act at all (and usually are not actually "abuses") does not mean that I do not think there are civil liberties abuses in America; that such abuses should not be taken seriously; or that the Patriot Act was perfect in every way. The point is about incredibly bad media coverage, and how easily some stories are told and retold even if the facts don't back them up — even today, almost 8 years after the Patriot Act was passed.
It was kind of fun to poke holes in these stories, in part because it was so easy: All you needed to do was actually read the Patriot Act and have some basic understanding of the laws that it amended. For some reason I will probably never understand, this basic step occurred to very few people actually talking about the Patriot Act to and in the media. But so it goes.
Anyway, this trip down memory lane is inspired by a recent case of Patriot Act hysteria — the case of a 16-year old who was arrested for making bomb threats at Purdue University. The FBI obtained an search and arrest warrant for the 16 year-old, came to his parents home, and arrested him and searched the home. He was arrested, formally charged, appointed a lawyer, and has had a few court appearances already.
What makes the story big news is that the kid's mom purports to believe that her son is entirely innocent and that the Government took him away under the Patriot Act in violation of all of his constitutional rights. A local TV station and a radio show apparently didn't check on whether the claims had any validity — or even whether the law was as the mom described — and they ran the story. The written version of the TV report is here, and the video version — which is really the best part, I think — is here. The story then took off across the net.
I thought about poking holes in this story just for old times' sake, but Kevin Poulsen of Wired News got there first. He has two great posts on this: Bloggers, TV, Go Nuts Over Misleading ‘Patriot Act’ Arrest Claim. He then follows up with a bit more about the evidence of what the teenager did — and what the mother knew — in this post: Teenage Bomb Threat Suspect Was Internet Prank-Call Star. DOJ's press release in response to the misleading coverage is here. There are a lot of gems in Poulsen's coverage — very much worth reading.
Finally, I'll add a postscript that shouldn't be necessary but probably is. Pointing out that almost all the stories of alleged "Patriot Act abuses" have nothing to do with the Patriot Act at all (and usually are not actually "abuses") does not mean that I do not think there are civil liberties abuses in America; that such abuses should not be taken seriously; or that the Patriot Act was perfect in every way. The point is about incredibly bad media coverage, and how easily some stories are told and retold even if the facts don't back them up — even today, almost 8 years after the Patriot Act was passed.
Interestingly enough, the sign at my local Target pharmacy that giving a false name when I buy my pseudoephedrine is a Patriot Act violation apparently is true. The sign quotes a wrong title of the US Code (IIRC a 19 becomes an 18) and the nasty section they quote is about falsifying any sort of log book, but apparently the limits on Sudafed Classic really were in the P.A.T.R.I.O.T. Act re-enactment.
This is extremely reminiscent of the Tamera Jo Freeman hysteria back in January, when a legally-illiterate L.A. Times and many credulous and indignant bloggers concluded that a woman had been jailed and lost her kids under the Patriot Act for being rude on an airplane, when the facts were quite different than reported and the defendant was actually prosecuted under a pre-existing statute.
The dominant American approach to the Patriot Act: among the people who passed it, in the media, among commentators on the internet -- is willful ignorance.
By the way, as an ex-AUSA I'm embarrassed that the media found a credulous ex-AUSA to give them sound bites buying into the Patriot Act angle without considering the entirely more plausible and legally correct federal juvenile procedure issue.
Why is "USA Patriot" an "Orwelian" name?
For more blogging about the Act's name being an important part of the debate over it, and why I don't find that very convincing, see this post from 2004
I don't find the name USA PATRIOT Act "Orwellian"--just too clever by half and kind of stupid.
There are definitely problems with the Patriot Act, but when I first heard about this story I was 99% sure it was a hoax. I agree with your point about bad media coverage, but what can we do with a population, many highly educated, that believe this stuff?
A poor description on my part. I was trying to express something that might actually be non-stupid. Maybe. Take two:
I was trying to get at the idea that it's a particularly ham-handed name that, in the wake of 9/11 and novels like 1984, is bound to make suspicious people freak. It has a vaguely ominous "Ministry of Truth" ring to it. With overtones of the House Committee on Un-American Activities.
Incidentally, I agree with your prior post that the name can't justly be blamed for "pressuring" people to vote in favor of it.
And this is limited to the Patriot Act...?
Note there is a political unidirection here again, like in most of the issues raised on this site. The Patriot Act is associated with Bush, therefore, everything sensational that can possibly be twisted must be hysterically attributed to it by the media.
Had the Patriot Act been an even more poorly written piece of legislation, but authored by the Dems to protect Gaia from the evils of capitalism, do you think the reporting would be relentlessly positive or negative about it, despite trillions of dollars of disruption to the economy?
Way too many people freaked out about this and it's nice to actually know the charges and the evidence before you complain about civil liberties violations.
Some people pretend that 16-year-olds are harmless. The kid looks pretty shady in the pictures they've shown but the news reports tried to portray the kid as an awesomely nice kid and super patriot. Apparently he's a super asshole.
They felt pressure to enact an anti-terrorism law but somehow managed to pass a generic-law-enforcement powers law -- that's truly amazing!
The name is Orwellian, of course, because the law takes a good thing (giving the gov't more power to investigate and prosecute terrorist threats) and assigned that meaning to something entirely different -- giving the gov't power power to investigate and prosecute Americans.
True but this hardly makes Patriot Act coverage unique. Or even legal coverage unique. Law enforcement, gun-related, environment-related, and education-related stories seem to be particular prone to this, despite the fact that most errors could be prevented with a brief Google search or call to a friend who didn't share the reporter's priors.
Sensationalism sells. Which story is going to make your name as a reporter: "Patriot Act abuses on the rise!" or "Patriot Act largely irrelevant to 99.99% of Americans."
Sure:
Sneak and peak warrants (50 U.S.C.
§ 1804 and 50 U.S.C. § 1823): unconstitutional
NSL's (18 U.S.C. § 2709) -- unconstitutional
I think an additional caveat you might add that could gain some traction would involve the consequences of too frequent wolf-cries on the public's vigilance toward actual wolves.
How about among the Federal Courts?
You mean in judicial rulings? Courts, at least, tend to identify the particular provision of the Patriot Act provision in question and explain with precision what is wrong with it. Such decisions also tend to specify whether the provision in question is new to the Patriot Act or whether it is a pre-existing law, changed in some way (perhaps not even in a material way) by the Patriot Act.
By contrast, most media and blogger and forum-posting commentary displays no precision whatsoever about what specific provision of the Act is objectionable. Moreover, many (if not most) stories and comments decrying some part of the Patriot Act are actually talking about some provision of law that preexisted the Act and was changed, if at all, in cosmetic or non-material way.
The criticisms are especially overblown among the Federal Courts.
That phenomenon, authorities falsely stating that they are acting pursuant to The PATRIOT Act, has been very widespread. I'm not going to look up all the local news stories, but anybody reading papers or the web saw plenty of them shortly after the law was passed. The general gist was "Man arrested for something silly. Cops say they are authorized by The PATRIOT Act."
That is why I think Prof. Kerr's derision of "the media" and the general public is misplaced. If a public official tells a reporter "We were authorized by The PATRIOT Act", then the reporter is not being hysterical to report that fact. The reporter is reporting a fact. Ordinary citizens are not being hysterical to believe that a government official is making an truthful statement.
The culprits are the government officials, not "the media" nor "hysterical" citizens.
Actually, it's entirely possible that they are. Certainly they are being credulous.
Granted, but that seems to be true about 90% of everything anyway.
You mean when Frank Melton drove around Jackson with a police badge, carrying a concealed weapon and raiding houses with a warrant, the Jackson Free Press ought not topublish his ridiculous assertions (and willful violation of the law)?
I think you missed the "without comment" part of my post, Oren. A paper should do exactly what that one did -- probe whether the claim is supported, demonstrating a rational level of skepticism.
At least in the federal courts people have to prove something and present evidence. Most librarians who rant about it (and there are a good number that do, i just heard one yesterday at a training I attended) will never actually point to a specific instance where the act actually was ever used in a library setting. But the mere possibility that an inverstigation could possibly be used to have someone look at a persons library records meant the sky was falling.
All that aside however--the kid was taken away from his home in North Carolina and has been held in a juvenile facility in Indiana for two months already.
I know nothing about federal juvenile justice--but a quick look at the statutes suggest that he should only be held if "detention of such juvenile is required to secure his timely appearance before the appropriate court or to insure his safety or that of others" 18 USC § 1534 and, in any event, "Whenever possible, detention shall be in a foster home or community based facility located in or near his home community." § 1535
I'm not saying the Patriot Act claptrap is justified, and from reading the link the kid seems like an odious jerk (and the mother may have known what he was doing)--and the sealing of the record prevents us from knowing the reasons for the detention, but I think the mom may have a point to be upset on having her kid yanked several states away--presumably until trial.
Considering that a librarian who is forced to turn over records will be under a gag order, how does this mean anything?
Besides, let's suppose the law has never been used against libraries. Would that matter? Suppose the law said "the government can shoot all Jews" but so far the law has only been used to take down a couple of serial killers who happened to be Jewish. Would you then feel better about that law, just because the government doesn't (yet) take advantage of this law in all the ways they could?
Great scene from Arrested Development like this. Paraphrasing, Prosecutor tells investigation target that the PATRIOT Act allows for any statements made during a mock trial television program are admissible in a real court of law, subject to the discretion of the presiding judge or the Executive Producer.
Just perfect in almost every way?
You may not "believe it", but you certainly should print it. The official said it. His irresponsibility should be published.
The real problem is government officials of the mind "Question authority, and the authorities will question you!"
Officials who presume unlawful powers are likely to become very hostile and aggressive when questioned about it. Since they have already demonstrated their willingness to act in excess of their lawful powers, a prudent citizen will avoid a confrontation on the official's terms.
So the reporter reports the facts.
The op-ed page can point out that the official was lying, mistaken, or confused. If the editor has the courage and the column space.
I remember reading all the outrage, and then reading the act itself and realizing that it was 99.5% misplaced. Trying to point this out on blogs, of course, was useless.
The name was a horrible mistake. Anyone who understand the American left must realize that "patriotism" to them is a right-wing code word for anti-left or jingoistic or something equally evil (to them). It too easily brings to mind Samuel Johnson's
The PR deafness of the administration (especially Ashcroft) on this was awful.
Because the press coverage of the PATRIOT Act was irresponsible, sensationalist and full of outright lies.
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I'm wondering about the speedy trial provision, 18 USC 5036. And now there is a motion that he be tried as an adult (aka transferred to a criminal proceeding), and I haven't heard of his prior felony conviction. I also wonder WHEN he was charged/indicted under 18 USC 844(e).
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March 6, 2009 - Juvenile Arrested in Bomb Threat
May 7, 2009 - Juvenile Information Filed
We disagree. I expect more of citizens and reporters than that. And I disagree that it is bias for the media to question government statements about the law. Some government statements about the law are easily provably false, and should be called out as such. Saying so is not bias, and need not be limited to the editorial page. If, for instance, local police arrest a man in a courthouse for disorderly conduct for wearing a jacket that says "Fuck the War," and the police say that they were entitled to do so and that wearing the jacket was not a protected exercise of the First Amendment, only the most dull, ignorant, and complacent journalist would fail to point out that the Supreme Court found an almost identical expression to be protected 30 years ago in Cohen v. California.
Saying ". . . and that's the kind of thing we expect from this administration" can be reserved for the editorial page. Fact-checking assertions about what the law does or does not provide? That's absolutely appropriate in good reporting.
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I chase news stories that catch my fancy, and I have NEVER, not one time, found a report that satisfies those criteria. Anybody who wants to understand the story PROPERLY, must, absolutely must, perform independent research and analysis.
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In this case, look at how effectively the statement "He was not CHARGED under a provision of the USA PATRIOT Act" is, at casting ridicule at earlier stories. And still, the available facts don't admit understanding the event.
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That's rare. The more common case is that the statements use technical language that is not false. At the same time, the statement is incomplete or states an obvious truth. And when the statement is an error (I'm thinking of Fitzgerald's "Libby was the first leaker"), one side of the argument runs off as though the case falls apart once the error is corrected.
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US v. Juvenile Male, 74 F.3d 526 (4th Cir., 1996)
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FN8 begins "In United States v. Doe, 882 F.2d 926 (5th Cir., 1989), the court held that the thirty-day speedy trial clock pursuant to Sec. 5036 began to run when the juvenile was 'first placed in physically restrictive custody.' Id. at 928.," so there is, at least in appellate history, a divergence on how the statute is to be applied.
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A Kentucky man who claimed to have a bomb aboard a Los Angeles-bound airliner ... 120 days in a county jail.
You should really read the cited decision more closely.
I didn't say that I thought it bias to question a policeman's statements. I said that reporters would be accused of bias for such questioning. Every reporter who has ever taken on a police department in print has probably been publicly accused of "anti-police" bias.
I also think it is worth emphasizing that arguing with a cop on the street over what the law is, is utterly foolish. It will only anger the cop, and he can and often will write up the debate into a charge of resisting arrest. When I was practicing law in the 1990s, I had clients whose arrest was sparked because they argued law with a cop instead of saying "yes, sir" and doing precisely as they were told, however legally absurd.I also wish reporters would take on false official assertions of law, but I can certainly understand why they don't do it on the spot.I agree that fact-checking official assertions of law is the right thing, and certainly is not bias. But I can understand why a local reporter, with a relatively little known or murky point of law, which includes details of "The PATRIOT Act", and righteously indignant local cops, would result in the reporter deciding that discretion is the better part of valor. Better to just write the facts than to deal with the flood of parking tickets, traffic stops and general harassment that too often follow dissing a local cop in print. If the reporter is from out of town, he might be less vulnerable.
A story that involved federal officers and got more national play, but may be of dubious provenance (officers' statements are hearsay from the arrestee), is this one that Declan McCullagh carried in 2002.
my experience is often the exact opposite . imagine that.
for example, (not uncommon example) i recall a certain fellow officer made several arrests pursuant to pedestrian stops. in those stops, he was stopping people for walking with the their back to traffic on a highway. that's an infraction. if there is no sidewalk, you either have to walk OFF the trafficway, or walk against traffic.
anyway...
he sent several case reports in.
at one point, he was talking to a prosecutor and learned all of his cases had been dropped. he asked why. she said that based on how he wrote his reports, it was clear that he was making stops of these people on the side of the road vs. social contact, and since he didn't have RSusp. the prosecutor's dumped them.
the prosecutor had no idea that the pedestrian offense WAS an offense. the officer clearly spelled out what each pedestrian did, but FAILED to mention that it was a violation of RCW bla bla bla.
i learned a valuable lesson from this. generally speaking, i make sure to spell out violations of law that are even slightly out of the ordinary, so prosecutors can catch on.
iow, "i observed XXXX doing XXXX in violation of RCW XXXX".
ime, prosecutors and defense attorneys are frequently more ignorant than the average cop on specific criminal laws. courtroom procedure, rules of evidence, etc. they know way more. but criminal law? ime, they are usually less knowledgeable
-Horrendous violation of rights allegedly authorized by PATRIOT Act.
-Orin Kerr points out that it wasn't the PATRIOT Act, but some other law.
-Horrendous violation of rights is forgotten.
Of course, sometimes when the facts are known, there was no violation of rights. A credible bomb threat is and should be a serious crime, and an intelligent sixteen year old certainly could construct a working bomb - although there'd be ten thousand kids that just wanted to see something go BOOM to one that really intended harg. OTOH, if the Justice Dep't is flouting the laws concerning juvenile pre-trial detention, etc...
Not all the incidents involve police, some are security guards. I found no recent incident reports directly quoting police citing "The PATRIOT Act".
One source with many reports of public and private attacks on photographers is the blog: War on Photography. Recent incidents tend not to involve direct statements by police about "The PATRIOT Act", but do involve equally inaccurate statements which appear to be derived from "PATRIOT Act" myths. For example this recent incident, "You can't take photos of CalTrain since the attack."
This 2005 memo to the National Press Photographers Association (PDF) does at least suggest that in the past police have harassed photographers by specifically mis-citing "The PATRIOT Act":
It has nothing to do with the PATRIOT act but IMO it's an extremely serious violation of human rights. I think I'll have to add New Hampshire to the list of places I'll never visit.
I repeat: the specific provision at issue in the opinion you cite dates to 1986. If you'd care to identify which particular section of the PATRIOT Act you think was implicated, I'm sure we'd all be grateful.
S2709 was amended to make the NSLs more broadly available, that implicates the gag rule in an obvious way: it might have been justified under the very narrow 1986 requirements (since those requirements actually had the target be relevant to a criminal investigation, modified by PA505(a)(2)(B) to be virtually meaningless) and are now unconstitutional with respect to the broad 2001 requirements.
Tell me, how many NSLs were issued before 2001 and how many challenges to 2709 issued from those uses?
While we are at it, do you want to comment on the other case I cited (all flowing from Mayfield)?
And yes - I hate the Patriot Act too.
It is categorically false that 2709's requirements ever "actually had the target be relevant to a criminal investigation." On the contrary, the test as of 1986 was whether the communications service records sought were those of a "foreign power" or an "agent of a foreign power" for purposes of a "foreign counterintelligence investigation." Either you don't know what the statute said (and still says), or you know but don't understand that an FCI investigation is different from a criminal investigation. (I leave aside a third possibility, that you understand the distinction and are deliberately mischaracterizing the statute.)
On your other point, it is correct that the 2001 Act expanded the availability of NSLs. However, your claim that the 2709 gag rule "might have been justified under the very narrow 1986 requirements" (which you've misstated) is your own idle speculation, and appears nowhere in Judge Hall's opinion. What the court found unconstitutional was not which officials could issue NSLs, or what basis they used; rather, the court focused exclusively on the automatic and inflexible effect of the rule gagging the recipient. And no matter how much smoke you blow, the gag rule at issue was enacted 15 years before the Patriot Act.
How about reporters, and bloggers, who simply, credulously, and without follow-up accept the accused's mother's claim about what the case is about?
The inevitable update:
I do too, Alexia. However, I also long for the days when two teenaged misfits could or would not walk into a high school (Columbine among others) and shoot and kill a lot of people. Those days are gone and now, a 16 year old of reasonable intelligence, is perfectly capable of setting off a bomb and has to be treated accordingly.
Really? How about Truth Commission? OK, that is not legislation, but it is terribly Orwellian, no?
Fact checking a politically insignificant citizen is less likely to result in negative repercussions for a reporter than taking on "city hall" by embarassing an official.
A more generalized version:
An objective person would see a pattern repeated many times:
- Horrendous crimes/violation of rights allegedly perpetrated by Bush/Cheney/conservatives
- Proof obtained that no such thing ever happened
- Left moves on to the next overblown/false charge
- Original debunked crimes/violations become staple of the left's revised history anyway
Why, pray tell, wasn't the law thrown out as unconstitutional 14 years ago then?
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