Bad Lawyering

The USA Patriot needs fewer friends like local US Attorney Mary Beth Buchanan. The defense of the law that appears under her byline in today's P-G is so badly reasoned that it might be fair to conclude the law shouldn't be renewed -- despite the fact that it includes some sensible stuff -- on the ground that the arguments used its proponents are so inept.

Here's the logic of the piece. First, since the Patriot Act was passed, the Justice Department has followed the relevant rules in seeking permission to search for stuff that older law allegedly didn't allow. Second, because federal judges are required to approve Justice Department requests, there is an outside check on law enforcement. Third, the Justice Department only searches for stuff relating to terrorists, so law-abiding citizens have nothing to fear. And fourth, while the Justice Department has been doing this, there have been no major terrorist attacks on American soil since 9/11. Therefore, the Patriot Act is obviously a good thing.

Alas, that logic would barely earn a "C" in one of my classes. The piece gets some points for spelling "Patriot Act" correctly, and there is a stirring photo of Attorney General Alberto Gonzales.

Let's take apart the argument.

First, the fact that the Justice Department has followed the rules doesn't mean that the rules are good ones.

Second, federal judges are given very little discretion to deny Justice Department requests, so those judges are hardly in the position of protecting civil liberties. I am heartened, however, to read that the Bush Administration is so supportive of a truly independent federal judiciary and one that is committed to meaningful protection of civil liberties.

Third, if the Justice Department is really after terrorists, I'd assume that it would want to use its Patriot Act authority to track records of gun sales. Yet the article makes a big deal out of the fact that Section 215 (the most controversial and sweeping of the Patriot Act's provisions) has never been used to obtain gun sale records! It has been used, however, to obtain driver's license records. Hmmm.

Fourth, anyone who has gone through airport screening during the last three-and-a-half years has seen the weaknesses of our security apparatus first hand. Given the relative ease with which terrorists could strike here, it's unlikely that the Patriot Act is responsible for the absence of post-9/11 terrorism.

Conclusion: There are strong arguments to be made that current political and technological conditions justify overhauling wiretap and surveillance laws. Until the Patriot Act, those laws had been last updated in the late 1980s. We should be very, very suspicious, however, when we hear an argument that we should trust law enforcement to behave itself. Even if we assume that law enforcement has behaved itself in the past, there is no reason to believe, automatically, that it will behave itself in the future. That's why the Framers of the Constitution wrote the Bill of Rights.


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Pittsblog 2.0 is written by Mike Madison, a law professor at the University of Pittsburgh. Send email to michael.j.madison[at] Mike also blogs at, on law and technology. Chris Briem of Null Space drops by from time to time.

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