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Since 2008 – Progress Through Politics

'This is Surreal'

As the USA PATRIOT Act comes under review for expiring provisions by the Senate Judiciary Committee an interesting exchange took place between recently seated Senator Al Franken (D-Minn) and assistant attorney general of the Justice Department’s National Security Division, David Kris:

Franken, who opened by acknowledging that unlike most of his colleagues in the Senate, he’s not a lawyer, but according to his research “most Americans aren’t lawyers” either, said he’d also done research on the Patriot Act and in particular, the “roving wiretap” provision that allows the FBI to get a warrant to wiretap an unnamed target and his or her various and changing cell phones, computers and other communication devices.

Noting that he received a copy of the Constitution when he was sworn in as a senator, he proceeded to read it to Kris, emphasizing this part:  “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

Daphne Eviatar – Al Franken Reads the 4th Amendment to Justice Department Official Washington Independent 24 Sep 2009

Pretty explicit indeed.  And the assistant attorney general’s response?

Kris looked flustered and mumbled that “this is surreal,” apparently referring to having to respond to Franken’s question. “I would defer to the other branch of government,” he said, referring to the courts, prompting Franken to interject: “I know what that is.”

Daphne Eviatar – Al Franken Reads the 4th Amendment to Justice Department Official Washington Independent 24 Sep 2009

Franken apparently wasn’t satisfied by that response and one isn’t surprised.  One is inclined to agree with Kris’ comment regarding the surreality of the exchange, however, though probably for entirely different reasons.  In what Orwellian fantasy of bureaucratic or Beltway rationalisation is that explicit wording of the Constitution irrelevant, ambiguous or secondary to the smokescreen of law enforcement imperatives created by an insider’s notion of our ‘public safety?’  And even more especially when the details of these risks, when cited, are shrouded behind classified restrictions on grounds of national security.  One is even tempted to wonder about the coincidence of timing of the recently publicised terrorism case, not to mention the consequent security alerts sent nationwide, and these hearings.

It is puzzling that the Republicans, whose ideology should enshrine the individual freedoms of citizens to act without the intrusion of the state, should be leading the charge on this.

And why is it an unwritten rule of modern states that once a freedom, which our ancestors thought highly enough of to specifically guarantee, is compromised for the sake of expediency that it becomes an accretion of the power of the state which must be pried loose by legislative force?  Sometimes it seems if we grew a little backbone on the whole issue of domestic terrorism and let it fall within the existing Constitutional legal framework and ‘business as usual’ law enforcement we would all be better off.

Every boat has to be hauled up, careened and have the barnacles scraped off once in a while and it seems we are well overdue.  Give ’em hell, Al.


  1. Kris attracted significant public attention when he released a 23-page legal memorandum, in his personal capacity, sharply criticizing the George W. Bush administration’s legal argument that it had authority to conduct warrantless domestic wiretapping due to the Authorization for Use of Military Force Against Terrorists passed by Congress on September 18, 2001. [2] [3] [4] Law professor Marty Lederman called Kris’s memo “by a large measure the most thorough and careful — and, for those reasons, the most devastating — critique anyone has offered of the DOJ argument that Congress statutorily authorized the NSA program.” [5] He also makes shorter arguments regarding the Fourth Amendment implications of the warrantless domestic spying and the administration’s “unitary executive theory” of Article 2 of the U.S. Constitution. Kris wrote the memorandum in January 2006, and released it to journalists on March 8, 2006. Kris had also exchanged a series of emails with Courtney Elwood, an associate counsel to Attorney General Alberto Gonzales, debating the legal arguments, which were released by the Electronic Privacy Information Center after obtaining them under the Freedom of Information Act. [6]

    Kris had been a high-ranking DOJ lawyer in the Bush administration for several years, and had appeared before Congress to advocate for the administration’s positions regarding the Foreign Intelligence Surveillance Act (FISA) and the USA PATRIOT Act. [7] He had furthermore previously appeared before Congress in his personal capacity, after leaving the DOJ, to continue advocating for the government to have enhanced flexibility under FISA and the PATRIOT Act. [8] This background caused his strong criticism of the administration’s legal claims to be considered particularly notable. [9]

    From the Wiki.

    • NavyBlueWife

      We switched from erring on the side of civil liberties to erring on the side of a police state and paranoia.  The executive branch in the last administration ran away with all sorts of power that it never had in previous administrations.  It’s a challenge to rein in all back in, especially since the Congress and courts refused to do so while it was happening.

      I haven’t read this book, but your comments reminded me of this interview that I watched.  A lot of people took advantage of our fright after 9/11 to use it for their own power grabs.  I think the Patriot Act was a very good example of overreaching.

      • NavyBlueWife

        I’ve heard about the shipping container problem over and over again.  Guess we’ll have to wait until something blows up for anyone to do anything about it.

        I haven’t read Klein’s book, but I do like that the interview made me think a bit on the whole topic.  When someone is in shock and deep suffering, the best that person can do is trust that whomever comes along will act in their best interest.  When I went through Hurricane Hugo 20 years ago in South Carolina, I remember being appalled at the number of people who came into town to take advantage of people who had just been struck down by tragedy.  It seems to occur on the basic level of stealing from businesses who have been boarded up to politicians who steal away civil liberties.  I’m sure that lots of people have done some sort of social scientific stuff on why people take advantage of others when they are weakest, but I am still horrified by it.

  2. NavyBlueWife

    Read the article.  I thought Franken’s approach was surreal as well, and honestly, I wouldn’t even know how to respond.  I am not for much of the Patriot Act, and I can also tell you that the case law for the 4th Amendment is so dense that I wouldn’t even know where to begin to address Franken’s question.  Not knowing Kris at all, I can only suspect that he was calling it surreal because of the breadth and depth of the case law that Franken touched on…it takes a semester in one class devoted to criminal procedure law school to even begin.  The definition of “probable cause” is enough to make anyone’s head spin.  Seems easy at first glance, but it really isn’t.  Every situation, every set of facts, it different, and trying to draw parameters to balance civil rights with law enforcement is…daunting, to say the least.

    Warrants follow a crime, not necessarily a person.  For example, a police department may receive an anonymous tip that drugs are being housed in a warehouse.  No one knows who the hell the drugs belong to…that’s part of the investigation, so in that instance, the warrant doesn’t have a specific person to be targeting.  It does, however, have a specific location.

    I get at what Franken is trying to do…but I’m not sure what to make of Kris’s answer….because I would have probably sat there with a deer in the headlights look as well (assuming that was his response).  Guess I would have had to watch the exchange for body language clues, but I take the underlying article to attribute some sort of nefarious tendency to Kris.

    • Shaun Appleby

      The New Yorker ran a profile of Klein late last year.  I’m a little skeptical of her passion for self-promotion but I guess the same could be said for just about any public personality who bubbles up through the miasma of popular political culture.

      As for the terrorism threat it strikes me as curious that our arguably biggest vulnerability to the kind of threats our enemies seem inclined to perpetrate, the literally millions of inbound shipping containers, remain largely uninspected:

      The George W. Bush administration gives WMD top priority, a concern reflected in the National Strategy for Maritime Security.  The smuggling of a WMD or components in a shipping container into a U.S. port is one of the most specifically and frequently mentioned scenarios by legislators in Washington, D.C.

      Richard Farrel – Maritime Terrorism Naval War College Review Summer 2007

      Unlike the ‘stroke of the pen’ solutions that legislation offers this has proved an intractable problem even though it was one of the original recommendations of the terrorism commission.  Congress has already passed a law regarding this threat, that’s the easy part, but implementation remains problematic:

      A U.S. anti-terrorism law requiring all shipping containers to be scanned before embarkation “will further slow down international trade dynamics and, consequently, world growth,” according to the World Customs Organization.


      Asia, which accounts for 75 percent of U.S. imports, would be hit hardest by the measures. In addition, the European Commission said Monday that scanning all containers will be “costly, inefficient towards improving security, and may disrupt cargo traffic.” Implementation of the legislative plan would effect more than 600 ports globally.

      While scanning technology is expected to be up to the challenge by 2012, and some of the larger and more advanced ports could be ready for implementation, there are many unknown factors that may hinder the application or effectiveness of this legislation, the study shows.

      The cost of infrastructure and equipment, port risk management, hiring and training staff, the ability to monitor, interpret and asses every image in a timely manner, are but a few of the areas identified by the study as problematic.

      Due to these complex factors the effectiveness of applying a blanket approach to ensure the security of shipments is questionable, the study shows.

      Anti-Terror Law Will Cripple U.S. Trade Says Group Newsmax 10 Jun 08


      If we can take a relaxed enough view of this clearly immediate threat, never mind we are relying on foreign agencies to perform the scanning, which is interesting, to allow the passage of over a decade from 9/11 to the implementation of a solution one has got to wonder at our priorities.  Something like seven million shipping containers reach the US annually.  Maybe Klein has a good point.

    • anna shane

      on civil liberties.  We erred on competence.  As you noted, the info was all there, it ought not to have succeeded.  Due only to no one thoughtful to report acts to.  

  3. Hollede

    It is really good to have you back at the Moose:~D

    Thank you for the latest on the Patriot Act and the update on my favorite Senator’s activities. Give ’em hell Al indeed.

  4. sfnhltb

    emphasizing this part:  “no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    “That’s pretty explicit language,” noted Franken, asking Kris how the “roving wiretap” provision of the Patriot Act can meet that requirement if it doesn’t require the government to name its target.

    As no persons or things are to be seized it seems fairly clear they don’t need to be named. Only the place to be searched would need to be described, in this case a phone number presumably has to be considered a “place” because of the archaic nature of your laws.

    Seems like fairly stupid political grandstanding to me, you would think after 8 years better arguments about the stupid kneejerk PATRIOT laws could be (and no doubt have been) raised.

  5. creamer

     If we accept that American politicians 1st reaction to anything is how it affects their re-election, it seems easy to understand how difffucult it is to roll back the Patriot Act. The question to them is not does/has this kept us more safe, but does it appear to. After 9/11, both sides tries to blame the other. Bush blamed Clinton. Clarke said Bush ignored warnings. The Bush administration proably over reacted and now we are left with politicians who worry more about short term ramifications of another attack more than the long term affects of a more intrusive security state.

     Is it unfair for the American political animal to fear the reaction of the electorate if he/she pushes back the Patriot act only to have it followed by a terrorist act on our shores?

     Do we even have a means to measure the effectivness of the current law/rules?

     Does the apparent low volume of dissent on this issue represent an acceptance by the majority of Americans?

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