The Patriot Act and American Civil Liberties

The first subject of tonight's Republican National Security Debate was the continuing and strengthening of the Patriot Act. It certainly was no great surprise that there would be nearly universal support (with the exception of Ron Paul and John Huntsman.) What I do think was interesting was the approach taken to mollify concerns about privacy and civil liberties.

In short, the nearly universal strategy (with the exception of some batshit-crazy comments from Bachmann about phones being wired into walls and Miranda rights for foreign citizens) was to characterize the Patriot Act as something that applies primarily to foreign citizens and in particular foreign terrorists. Here are a few examples (see full transcript):

Gingrich: I think it's desperately important that we preserve your right to be innocent until proven guilty, if it's a matter of criminal law. But if you're trying to find somebody who may have a nuclear weapon that they are trying to bring into an American city, I think you want to use every tool that you can possibly use to gather the intelligence.

Romney: And that is Congressman Paul talked about crime. Newt Gingrich was right. There are different categories here. There's crime and there are rights that are afforded to American citizens under our Constitution and those that are accused of crime. Then there's war. And the tool of war being used today in America and around the world is terror. There's a different body of law that relates to war... And that means, yes, we'll use the Constitution and criminal law for those people who commit crimes, but those who commit war and attack the United States and pursue treason of various kinds, we will use instead a very different form of law, which is the law afforded to those who are fighting America.

This is an effective strategy. It certainly plays perfectly into the fears Americans have of future terrorist attacks, but also directly addresses concerns about the erosion of personal liberties.

Unfortunately it is also extremely misleading, inaccurate and ultimately dangerous. The Patriot Act is in fact a direct assault on the privacy and 4th Amendment rights of American citizens. The details on this are really too numerous to present here, but for an overview of how the Patriot Act effects American citizens, see this recent overview from the ACLU. Here is one excerpt:

The Patriot Act applies the distinction between transactional and content-oriented wiretaps to the Internet. The problem is that it takes the weak standards for access to transactional data and applies them to communications that are far more than addresses. On an e-mail message, for example, law enforcement has interpreted the "header" of a message to be transactional information accessible with a PR/TT warrant. But in addition to routing information, e-mail headers include the subject line, which is part of the substance of a communication - on a letter, for example, it would clearly be inside the envelope.

In some cases, it is certainly possible that candidates taking this position actually believe what they are saying. But I really have a hard time believing that either Gingrich or Romney do not know any better. Of course they do, and at least in Gingrich's case, knew just how far they could go in finessing their response so that voters would hear what they wanted, but they would not veer too far from being technically correct. Still not sure how these guys sleep at night...