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Changing the Law by Changing the Law
11/05/2003

John Cole is very upset about news that a provision of the Patriot Act has been invoked in an investigation of a Las Vegas strip-club owner's financial... umm... dealings with some local politicians. Before I read John's comments, I had been holding on to this one because I've gone back and forth on whether to blog it.

There simply isn't enough information to be upset either way. All we know is that something in the Patriot Act was cited to subpoena financial records (requiring a judge's sign-off, I presume). One curious part that makes me wonder how accurate the reporters' (and lawyers') sources could be is that the investigation appears to involve bribery and corruption, yet:

Sources said the FBI sought the records under Section 314 of the act. That section allows federal investigators to obtain information from any financial institution regarding the accounts of people "engaged in or reasonably suspected, based on credible evidence, of engaging in terrorist acts or money laundering activities."

Even divorcing "money laundering" from terrorism, this section would seem a bit of a stretch to apply in this case — particularly since the thrust of the act's language in this section has to do with "the specific purpose of encouraging regulatory authorities and law enforcement authorities to share with financial institutions information regarding individuals, entities, and organizations engaged in or reasonably suspected based on credible evidence of engaging in terrorist acts or money laundering activities." In other words, it seems intended to allow investigators to give information, not get it.

Furthermore, the heated reactions seem even more premature when one notices that Section 315 adds the following language to the definition of "specified unlawful activity" in a different law that deals with laundering:

bribery of a public official, or the misappropriation, theft, or embezzlement of public funds by or for the benefit of a public official

In other words, while it is entirely possible that the Patriot Act has been improperly used in this instance, it is also possible that the FBI utilized an entirely different law that was changed as part of the Patriot Act. In that case, no new powers would have been used; existing investigative capabilities merely now apply to public officials' corruption. That might seem like a distinction without a difference to those who are already convinced that the Patriot Act is an inroad for fascism, but look at it this way: the language was added to Title 18, Part I (Crimes), Chapter 95 (Racketeering), Sec. 1956 (Laundering of monetary instruments). Skim through Section 1956(c)(7)(B), and you'll see a law that looks entirely self-contained — without reference to the Patriot Act.

It's easy to get lost in all the numbers and letters of these discussions, but what I'm trying to convey is that, while you could argue that this change of language shouldn't have gotten into the Patriot Act, it isn't exactly abuse of the law to use a law as it is currently written. Furthermore, I'm not a law person, but it seems to me that our lawmakers would (should) know enough about how these things work to have been able to spot the fact that the "bribery of a public official" wouldn't have been limited to terrorist investigations.

ADDENDUM:
While I'm on the topic, I wanted to note what seems to be either a bit of a slip or a bit too much poetic license for political effect:

Sen. Harry Reid, D-Nev., said Congress intended the Patriot Act to help federal authorities root out threats from terrorists and spies after the Sept. 11, 2001, attacks.

"The law was intended for activities related to terrorism and not to naked women," said Reid, who as minority whip is the second most powerful Democrat in the Senate.

Just to be clear, here, Senator Reid, the topic at hand has to do with the corruption of government officials, not the naked ladies on whose behalf any bribes might have been made.

Posted by Justin Katz @ 08:56 PM EST