Nat Hentoff writes another in his line of anti-Patriot Act screeds in his "Sweet Land of Liberty" column printed in this morning's Washington Times. The column compares nicely to yesterday's column in the Washington Post entitled "In Defense of the Patriot Act" by Heather MacDonald. MacDonald's main point is to criticize the ACLU's brief challenging the constitutionality of the Patriot Act. Based on MacDonald's selected quotes, the ACLU brief appears to be written in the hysterical prose of a public relations campaign, rather than a well reasoned legal argument. In particular MacDonald points out that searches and wire taps under the Patriot Act cannot be conducted without the a court order. There is judicial oversight in every case.

Hentoff, to his credit, concedes that there is judicial oversight, though he repeatedly refers to the court that oversees espionage and counterterrorism as a "secret court" (query: just how secret can it be if Hentoff keeps talking about it). The central vaue in Hentoff's piece is that he raises the question of the legal standard that must be met before certain actions can be taken in investigations. I don't know the answer to this and would appreciate any information my fellow bloggers might have. According to Hentoff, the standard is somewhere below "probable cause" but his description of the standard, that "all the FBI must claim is that records and other "tangible things" are wanted to investigate foreign intelligence, clandestine intelligence or international terrorism," strikes me as either disingenuous or misinformed. Is he saying that a naked assertion that the information is needed for an investigation is enough? The court requires no information about the investigation or anything else? I find this hard to believe.

Both columns deserve a read.

UPDATE: Hentoff's article is here, MacDonald's is here.
- posted by Anonymous @ 9:48 AM