The Patriot Act and Criminal Law:

Alex Tabarrok responds to my analysis of his Patriot Act criticism. Alex concludes that I have committed “the lawyer’s vice,” namely, “to miss the forest for trees.” He writes:

The point is that laws passed for one purpose are often used for other purposes not originally intended (RICO, anyone?). . . . In this case, the Patriot Act and the general increased willingness to defer to law enforcement have not to my knowledge led to many arrests of terrorists but have been used for all manner of other purposes.

I think this response sets up a bit of a straw man: the idea that the Patriot Act was designed solely to arrest terrorists, with the apparent implication being that any use of the Patriot Act in criminal cases is somehow illegitimate or abusive. I’m not sure if any supporter of the Patriot Act has ever claimed that the Patriot Act has no application in the field of criminal law. If they have, they were wrong. As I have written elsewhere, many of the provisions enacted into law in the Patriot Act were proposals relating to criminal law that had been considered and debated in Congress since the Clinton Administration. Many of the criminal law provisions are dual-use: they can be used in terrorism investigations, but can also be used in routine criminal investigations. Because there are lots more criminals than terrorists, and criminal cases tend to be much more public than terrorism investigations, it shouldn’t be suprising that we hear more about the Patriot Act in criminal cases than in terrorism cases.

  Supporters of the Patriot Act have not tried to hide the fact that many of the sections relate to criminal law. Indeed, in the DOJ’s recent report on cases in which the Patriot Act authorities were used, some related to terrorism but many did not. I happen to think that many of the sections of the Patriot Act are good ideas, when addressed on the merits. A few may have gone too far and should be tweaked, but most were good ideas that are neutral on civil liberties. (In this assessment I believe I am joined by Anthony Romero of the ACLU, who has stated that “much of the Patriot Act is neutral legislation for civil liberties,” but that “it contains about a dozen provisions that simply go too far.” ) But to the extent that provisions of the Patriot Act are being used in criminal investigations, that’s not only true but quite by design.

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