Tax Planning

The Next PATRIOT Act

  • author Mark Nestmann
  • calendar February 2, 2021

“A crisis is a terrible thing to waste.”

While this statement was first attributed to Stanford economist Paul Romer in 2004, politicians have long used crises to justify new laws that crush peoples’ rights. In today’s America, the crisis of the day is “domestic terrorism.”

After rioters broke into the national capital on January 6, 2021, incoming President Biden called them “domestic terrorists.” In its aftermath, Biden and his proxies are pushing for new authoritarian laws to take aim at (some) domestic terrorists. Biden was one of the principal supporters of the Patriot Act, enacted in 2001. Indeed, he’s boasted many times about being its original author, along with a similar proposal he introduced in 1995 after the Oklahoma City bombing.

For instance, a bipartisan coalition in Congress has introduced the “Domestic Terrorism Prevention Act of 2021.” The proposal would amend legislation used in fighting the War on (Some) Foreign Terrorists and amend it to include the War on (Some) Domestic Terrorists.

With a domestic terrorism statute in effect, anyone vigorously advocating any political viewpoint could be deemed a terrorist and imprisoned.  You can expect prosecution of anyone posting videos or other materials deemed to “incite violence.” That’s already a fact of life for young American Muslims who pledged their support to Islamic militant groups.

Consider how the original Patriot Act came into effect during a crisis atmosphere, only a few weeks after al Qaeda operatives carried out the suicide attacks on September 11, 2001. The law was rushed through Congress in days. Congressman Jim McDermott (D-WA) alleged that no Senator bothered to read the bill.  John Conyers, Jr. (D-MI) defended the proposal, saying, "We don't read most of the bills. Do you really know what that would entail if we read every bill that we passed?"

The Patriot Act itself contains 10 sections (titles). Some of the most controversial provisions were in Title II, relating to expanded surveillance procedures against suspected terrorists. For instance, Title II expands the authority of domestic intelligence agencies to collect "foreign intelligence information" from US citizens. This part of the law also expands the government’s wiretapping and surveillance authority in a terrorism investigation.

Since 2001, some of Title II’s provision have been struck down by the courts, expired, or amended. But in 2013, explosive revelations from NSA whistleblower Edward Snowden proved that the agency had gone far beyond their authority by tapping directly into the server hubs of leading internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs.

Title V, which greatly expands the authority of the FBI to issue “national security letters,” was also controversial. The NSL mechanism permits the FBI to force companies to disclose customer information through an administrative subpoena, with no search warrant required. The FBI can obtain telephone logs, e-mail histories, financial and bank records, and credit reports this way. It may retain the records indefinitely, even when they prove irrelevant to an investigation. The FBI may even prohibit the recipient of an NSL from disclosing its existence "to any person" other than the recipient's lawyer, with five years’ imprisonment as the prescribed punishment.

Libraries were one of the major targets of NSLs. In just the first three years after enactment of the Patriot Act, law enforcement officials made more than 200 requests for library records, thereby involving an activity  – freedom of speech – protected by the First Amendment. One inquiry occurred after a library patron checked out a biography of Osama bin Laden. Another occurred after a student requested a copy of Mao Tse Tung's Little Red Book through an inter-library loan.

This is how the Patriot Act is making America safe from terrorism.

But it’s the parts of the law which we don’t hear as much about that are even more dangerous. Such as Title III, which relates to money laundering. It forces financial institutions to act as unpaid informants on their customers to help identify suspected terrorists. But uncovering financial transactions linked to terrorism is extraordinarily difficult, because people with legiti­mate sources of income may finance organizations deemed to be supporting terrorism.

Ferreting out that purpose requires an extraordinary level of surveillance. For instance, when the FBI tried to determine how terrorists might use the banking system, it came up with this profile: a large deposit followed by small cash withdrawals. Yet tens of millions of Americans use their bank accounts in this way to deposit their paychecks and then pay their bills.

Not surprisingly, the surveillance systems put into effect to enforce the Patriot Act snagged many law-abiding citizens. Consider Walter Soehnge, of Providence, RI. In 2006. Soehnge came under suspicion of terrorist activity because he paid off a $6,522 credit card bill. Because this was much larger than his normal monthly payment, it was reported as a potentially “terrorist-related transaction.” His account was then frozen.

Title III also gives Uncle Sam unprecedented civil forfeiture authority over the domestic “correspondent accounts” of any bank in the world. If an alleged terrorist deposits money at an overseas bank, the government can seize an equivalent sum of money in the bank’s US correspondent account. However, the first time the government used this authority was in an insurance fraud investigation. A husband and wife alleged to be involved in the fraud opened a $2 million bank account in Belize. The Justice Department promptly used its new power to freeze $1.7 million in the correspondent account of the Belize bank.

Current proposals to make anti-terrorist legislation apply to (some) domestic actors are aimed at far-right provocateurs. But, once enacted, they can be used against anyone. As investigative journalist Glenn Greenwald (who helped Edward Snowden expose wrongdoing by the NSA) recently wrote:

There are times when powers of repression and censorship are aimed more at the left and times when they are aimed more at the right, but it is neither inherently a left-wing nor a right-wing tactic. It is a ruling class tactic, and it will be deployed against anyone perceived to be a dissident to ruling class interests and orthodoxies no matter where on the ideological spectrum they reside.

If anything, Congress should stand up and end the War on (Some) Terrorists, repeal the Patriot Act and the aggressive civil forfeiture sanctions that accompany it, and return some measure of privacy and personal security to the American people.

Unfortunately, that’s not likely to happen, because politicians in both parties find the War on (Some) Terrorists a convenient way to distract voters from real issues. Yes, the events of January 6, 2021 in Washington, D.C. were disturbing. But the legal framework already in place is more than sufficient to deal with what President Biden calls “domestic terrorism.” More than 170 cases have already been opened to investigate the January 6 capital riot. Charges brought so far include conspiracy, obstruction of a congressional proceeding, unlawful entry, and disorderly conduct.

Knee-jerk reactions to a crisis didn’t work out well with the first Patriot Act. Law enforcement and intelligence agencies didn’t need a whole new set of powers then. When they got them, they used their new authority mainly against people with no connection whatsoever to “terrorism.”

There’s no reason to anticipate different results with a domestic terrorism statute. As Albert Einstein once said, insanity is “doing the same thing over and over again and expecting different results.”

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