8:36 a.m. June 13, 2013

The PATRIOT Act Isn't Just For Terrorists.

Here’s some free legal advice from a high-priced defense attorney: don’t commit any crimes.

Naturally, you will ignore me. You will commit a crime. Then you will call me, and the process of figuring out the best way to get you out of your mess begins. Your first question, always: how is this fair? Maybe followed by: Don’t I have rights? And after a long conversation: Who passed that law?

The answers, in order: “it’s not fair”, “you sort of do” – and “the people you keep voting for.”

I’ve known a lot of prosecutors in my life and while wildly varying in approach to life, competence, depth of stick up posterior and drink-a-beer-withability, there is one thing they all have in common, they don’t expect to lose. Ever.

I’ve secured acquittals in cases from theft to murder. Some prosecutors are gracious in defeat, some are dicks, but virtually all of them instantly fall into some level of vindictive thinking. The spared defendant now will slouch towards eternity with a target on his back (for further reference, see the Curious Case of Orenthal James Simpson). New, more far-reaching laws will be lobbied for so that the “mistake” that allowed a “guilty” man to walk free will never happen again.

Law books in every State grow every year, that growth driven oftentimes by insecure prosecutors who can’t fathom how (their) righteousness doesn’t always prevail over (your) evil – if only they had (better) tools to do the Lord’s work.

Enter the USA PATRIOT act.

Back in 2002, like most semi-cynics with a preference for coffeehouse ranting over rubber-to-the road protest, I rolled my eyes at the USA PATRIOT act as an obvious reactionary (to that one big thing) law. It was just too long to read (132 pages) - just obvious enough to be written off as another half-baked idea eroding liberties, but ostensibly, only the liberties of terrorists. And since I haven’t ever represented a terrorist (and since I love my country), I gave it a semi-slide.

Then, less than a year after its passage, the US PATRIOT act made its first headlines here in Las Vegas not for uncovering or prosecuting terrorists but relating to Federal charges surrounding the efforts of a local strip-club titan to bribe legislators.

This was apparently one of the first uses of the US PATRIOT act in an actual prosecution. Affectionately dubbed “Operation G-Sting” by the local press, the case revealed that US PATRIOT (specifically Section 314, page 37) can be used to allow warrantless searches of financial records for people suspected by the authorities to be involved not just in terrorism, but also money laundering. This, in a case that was already wacky on the Fourth Amendment front: the FBI had been able to obtain a Court Order to disable one of the suspects OnStar Auto Security and Navigation system aboard his Hummer and turn it into a listening device. (“Ding. This is OnStar, may I help indict you?”).

So, yes. It turned out the US PATRIOT act wasn’t just useful for preventing 9/12, it could be used to bring down stripper pimps and corrupt politicians (thanks to their new tool, Federal prosecutors were able to secure convictions against all the government officials – all of whom did Federal prison time). It was at that point I decided to actually read the document to see what else my non-terrorist clients might be facing.

Apparently, US PATRIOT act is not just a rhetorical device invoking our duty to love our country, it’s an acronym, albeit a mightily clumsy one. In its entirety, the UNITING AND STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM act of 2001. Yeah, that’s a mouthful, but explicitly it relates to terrorism. If only titles could be adequately judged to assess the content of the book. A careful read provides no such limitations and indeed is clearly designed to give tools to all prosecutors so that they never, ever lose, but giving them unprecedented powers in negotiations.

The age-old adage amongst attorneys is that if your criminal case goes Federal, you are royally screwed. The US Attorney has many tools designed to hasten plea bargains. Foremost, the penalties under Federal sentencing guidelines (even advisory as they’ve become) are remarkable. A state prosecuted drug dealer may get five years – in Federal court he might get life.

Next, in Federal cases, the prosecutor doesn’t have to provide the bulk of “discovery” (evidence against a person) until after the person has been formally charged and there is a significant penalty for waiting to enter a plea negotiation until after charges have been filed. Finally, the Federal Prosecutors enjoy great leeway in tailoring the charges upward in severity with a very broad Federal net of crimes involving computers or phones or any wire transmission in any way. In other words, they not only have the tools they need, they own the hardware store and the manufacturing plant.

Thus, that psycho ex-girlfriend who threatens to blow up your cruise ship if you leave her, is now a terrorist and she has to do years in Federal prison even if she never bought a peppercorn of explosives. Thus, if you check out the wrong library books, you could be facing some additional scrutiny. Thus, if naked pictures of kids show up on your computer. Thus, thus, thus.

Many courts, along with the American Bar Association, have indicated, “the responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.” As one court noted at the turn of the last century, “we make due allowance for the zeal which is the natural result of such a legal battle as this, and for the desire of every lawyer to win his case; but these should be overcome by the conscientious desire of a sworn officer of the court to do his duty, and not go beyond it.” With the US PATRIOT act and others of its ilk, the goal posts of justice get moved to provide legal cover to do what hitherto was unimaginable. Except they imagined it, and had the best excuse in the world to enact it. Everyone is a Patriot.

The Boston Globe on November 8, 2003, reported that a Justice Department spokesman named Mark Corallo said that the Intercept and Obstruct Terrorism Act was “not meant to be just for terrorism.” Of course, it wasn’t. And as time goes by, we see exactly what kind of labyrinths these tools build.