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Originally posted by DanUCSB
Don't have time to get into the whole of it, but one of the things that irks the shit out of me is this whole 'bad laws are okay because they haven't used them' argument. What the hell is that?
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I agree with your statement. However, it does not reflect the argument made.
Certain provisions of the USA PATRIOT Act may be "controversial," as ROTCNY said, but that is not the same as saying it is a bad law. Noting that they have not been applied is intended to expose the hypocrisy of people like Gore and the ALA who claim the darkness has descended already. This is a separate issue from whether, if applied, these provisions are "good" or "bad" laws.
Section 215 of the Act is notorious, for example, because it supposedly will allow the government to snoop on your library records or porn movie rentals. Worse, they don't even need probable cause.
Guess what? Before the USA PATRIOT Act, the government didn't need probable cause to subpoena business records. Federal Rule of Criminal Procedure 17(c): "A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive."
No mention of probable cause.
For a subpoena in the trial context, the Government must establish the relevancy, admissibility, and specificity of the information sought (
U.S. v. Nixon, 418 U.S. 683 (1974)).
For a grand jury subpoena, the requirement is far less stringent. Probable cause is specifically ruled out as a standard. The Supreme Court held unanimously in
US v. R. Enterprises, Inc., 498 U.S. 292 (1991), that "the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists." The Fourth Amendment exclusionary rule and the hearsay rule in the Federal Rules of Evidence also don't apply in grand juries.
Section 215 of the Act extended this power to subpoena records to the FISA Court. It requires the FBI to make an application to the court for an order to produce records.
Although I say "extended this power," prior to the PATRIOT Act it was not clear what the requirements were for such a request. As noted, in contexts such as a grand jury, the warrant/probable cause requirement under the Fourth Amendment doesn't apply. In trials, the Nixon test did require a demonstration of relevance and admissibility (and given the exclusionary rule, this would imply probable cause in most cases), but this doesn't apply to grand juries.
The previous "standard", if any, was Executive Order 12333 (1981), which delegated to the Attorney General "the power to approve the use for intelligence purposes,..., of any technique for which a warrant would be required if undertaken for law enforcement purposes." This extended to intelligence investigations the tools of criminal investigations, with the same restrictions. The main thing this provision of EO 12333 did was allow search warrants to be issued for intelligence surveillance. But EO 12333 is silent on whether intelligence investigations could use the techniques of law enforcement not subject to the warrant requirement. The provision could be read either way. Section 215 in substance does little more than clear up this issue in favor of giving the FISA court roughly the latitude a grand jury has.
Another "notorious" aspect of Section 215 is its secrecy requirement: "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section." Besides being perhaps a prudent measure in a terrorism investigation, the secrecy rule also mirrors grand jury rules - Federal Rule of Criminal Procedure 6(e) imposes secrecy requirements on grand juries.