I'm a bit surprised that there aren't purpose limitations in the enabling legislation for the most controversial new government investigative authorities.
The Wiretap Act has an explicitly enumerated list of offenses for the investigation of which wiretaps may be authorized:
The default is that a wiretap is not available to investigate an arbitrary crime. (Of course, there's been a lot of creep and wiretap authority has been expanded to more and more crimes.) This is based on the idea that a wiretap is uniquely and intensely invasive compared to other law enforcement techniques.
I don't see why that pattern hasn't been repeated with other investigative authorities. In the case of section 213 of the Patriot Act, described here, the effect of the new law was to amend 18 USC §3103a
to allow for "delayed notice" when a search warrant was used. But that section authorized the issuance of warrants for "any property that constitutes evidence of a criminal offense in violation of the laws of the United States" (emphasis added), that is, for the investigation of any Federal crime. Presumably it would have been easy for section 213 to have taken a Wiretap Act-like approach and said that the delayed notice procedure was available for investigation of crimes x, y, and z, but not other crimes.
(I work with the author of the original article, but we haven't discussed this topic.)
Legislative drafting ought to be the pinnacle of legal endeavor, but sadly this is not the case. Indeed, a glance at the House's legislative drafting guidelines show that assessment of constitutionality is barely discussed, and then only insofar as it pertains to the mechanics of passage.
While the constitutionality of a proposed bill is properly a matter for debate on the floor of the legislative chamber, in practice a great deal of debate seems to consist of procedural maneuvers at the expense of substantive discussion - and as you say, the substantive changes wrought by a bill are often couched in the form of obscure and minor-seeming tweaks to existing legislation that can result in dramatic changes of scope or authority despite their superficial blandness.
When some lawmakers openly admit they don't even read the laws they are voting for, it is no wonder things are passing that people afterwards go "wtf these guys were thinking?" It's like writing code without any review, testing and debugging - just type it in and ship to production. But it's about fighting terrorism - so who has the time to do it right? And of course then when people see the exploits and try to fix it, they get the pushback - you are siding with terrorists? So when we get lucky and somebody writing the law really cares about not breaking things - we can get reasonable limits. Otherwise, best case we can hope Supreme Court will eventually patch it, once it gets there, which probably will take another 10-15 years.
>It's like writing code without any review, testing and debugging
Well, most PMs don't personally review/test/debug. They assume their people have done it for them, which I'd guess is how senators operate. So in and of itself, not reading the laws isn't intrinsically bad. If they had proper oversight of their teams and knew there was enough QA in the process, they could rely on summaries from their teams.
I suspect that 0.5% is not the fraction of searches that most Congress members voted for when authorizing this law after 9/11 --
"The 2013 report confirms the incredibly low numbers. Out of 11,129 reports only 51, or .5%, of requests were used for terrorism. The majority of requests were overwhelmingly for narcotics cases, which tapped out at 9,401 requests."
This is always the case with these kinds of authorizations - a few years pass, people forget, and suddenly an anti-terrorism "narrowly targeted" drone strike via the "disposition matrix" becomes the go-to strategy for all police SWAT teams.
This is exactly what we saw in Ferguson recently..
I think some of the most interesting findings is how focused the government is on tackling the drug trade.
You have to wonder, what is the fear of drugs which is driving this? Would a nation with unrestricted drug trade would descend into anarchy and lawlessness? That productivity would tank, and all our money/growth would shrivel up? Are they wrong? It does seem like this would be more terrifying than a few civilian deaths from terrorist attacks.
It's not a fear of drugs, it's that the Drug War gets all the aggressive laws and cool toys. It enables self-aggrandizement, ambition, and big budgets.
It used to be god's will and then they were savages, then it was eugenics. Then they were socialists and now they are terrorists.
This train will keep rolling until we as a people decide with our wallet and ballot "your cover story is bullshit. Stop making up things to deny people sovereignty and stop inventing new euphemisms for war."
We as individuals need to be proactive for a meaningful outcome. You can be part of the obstruction and direct the seas of change.
Shifts in the status quo only come as a result of personal convictions and a consistent imposition of values. Nobody ever changed things without actually changing the things they do.
> Notice how convenient it is that ISIS showed up and suddenly we need to go to war with them just as Al Qaeda and that war were winding down?
Take off the tinfoil hat. It's not "convenient", it's what happens when a superpower withdraws from a region creating a huge power vacuum. What are you suggesting, that ISIS is a shadowy plot by Halliburton and the Illuminati?
Quite apart from which, the US does need to sort shit out in Iraq, seeing as the current mess is their fault.
I don't think "standard issue dictator likes posturing" and "roving bands of religious crazies armed with Western equipment murdering women and children for sport" are quite the same level of mess.
Well, you know what they say; a gun in the first act goes off in the second. Given these tools, the agencies equipped with them are not going to sit around not using them.
The Wiretap Act has an explicitly enumerated list of offenses for the investigation of which wiretaps may be authorized:
http://www.law.cornell.edu/uscode/text/18/2516
The default is that a wiretap is not available to investigate an arbitrary crime. (Of course, there's been a lot of creep and wiretap authority has been expanded to more and more crimes.) This is based on the idea that a wiretap is uniquely and intensely invasive compared to other law enforcement techniques.
I don't see why that pattern hasn't been repeated with other investigative authorities. In the case of section 213 of the Patriot Act, described here, the effect of the new law was to amend 18 USC §3103a
http://www.law.cornell.edu/uscode/text/18/3103a
to allow for "delayed notice" when a search warrant was used. But that section authorized the issuance of warrants for "any property that constitutes evidence of a criminal offense in violation of the laws of the United States" (emphasis added), that is, for the investigation of any Federal crime. Presumably it would have been easy for section 213 to have taken a Wiretap Act-like approach and said that the delayed notice procedure was available for investigation of crimes x, y, and z, but not other crimes.
(I work with the author of the original article, but we haven't discussed this topic.)