With this ruling, the First Amendment and the Fourth Amendment mean very little anymore. Of course, the PATRIOT Act has long come under criticism for violating the Fourth Amendment in countless ways, and multiple criticisms have been leveled at the secret courts, surveillance powers, and investigatory powers—not to mention drone programs and the secret “kill list” erected upon them. True patriots and lovers of freedom everywhere know that once constitutional freedoms are compromised, it is only a matter of time before they are further eroded and eventually eradicated. Now that maxim is manifested in legal precedent.
This ruling is a perfect example of that downward path into the ninth circuit of judicial hell. As justsecurity.org reports, alleged protections written into the PATRIOT Act have been blown through like they were not even there. And I would argue it is because they were never really there to begin with. They were promises written in vague language that any crafty lawyer could navigate without difficulty.
That’s exactly what Judge John D. Bates has done: craftily weaved his way through the language so as to circumvent the First Amendment, and by it, the Fourth as well. “No law . . . abridging the freedom of speech”? Ha. “Secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Ha. Not if you know someone who knows someone who might know a terrorist. It doesn’t matter whether everything you say and do is protected by the First Amendment or not. As long as the activities of someone else are being investigated, you can be pulled in through some form of guilt-by-association, and the FBI can investigate you and seize your property. Again, this is true now even if everything you do and say is 100 percent perfectly legal and there is no probable cause against you. And this is true, according to the opinion we are about read, even if the court itself concludes that your own personal activities are protected by the First Amendment.
This may sound extreme, but you can read it for yourself. It comes directly from the very words of Judge Bates’s opinion which has just recently been declassified. That (heavily redacted) opinion states,
A more difficult question is whether the application shows reasonable grounds to believe that the investigation of [redacted] is not being conducted solely upon the basis of activities protected by the first amendment. None of the conduct or speech that the application attributes to [redacted]—appear to fall outside the ambit of the first amendment. Even [redacted]—in particular his statement that [redacted]—seems to fall well short of incitement to imminent violence or “true threat” that would take it outside the protection of the first amendment. Indeed, the government’s own assessment of [redacted] points to the conclusion that it is protected speech. . . . Under the circumstances, the Court is doubtful that the facts regarding [redacted] own words and conduct alone establish reasonable grounds to believe that the investigation is not being conducted solely on the basis of first amendment.
The Court is satisfied, however, that Section 1861 also permits consideration of the related conduct of [redacted] in determining whether the first amendment requirement is satisfied. The text of Section 1861 does not restrict the Court to considering only the activities of the subject of the investigation in determining whether the investigation is “not conducted solely on the basis of activities protected by the first amendment.” Rather, the pertinent statutory text focuses on the character (protected by the first amendment or not) of the “activities” that are the “basis” of the investigation.
According to the application, the government is investigating [redacted] not only on the basis of his own personal words and conduct (which, as noted, suggest sympathy toward, if not support of international terrorism), but also on the basis of the admitted or suspected [redacted]. . . .
I think most people, when they cite that statutory language, believe it means that Americans won’t be subjects of terrorism investigations for the First Amendment protected things they say or do.
They would be wrong. Judge Bates’ alternate interpretation allows for Americans exercising only constitutional protected rights to nevertheless be investigated under section 215 so long as there’s an independent, constitutionally unprotected basis for the overarching terrorism investigation.
(Which, we must add, there always will be.)
The takeaway is, Americans are being investigated for their First Amendment protected activity, so long as someone’s else’s related conduct is not protected, even where the relationship between the American and the other party is too attenuated to support suspicion of aiding and abetting or conspiracy.
And, of course, “related” is a matter of opinion of the court based on the “facts” laid before it by the FBI or whoever requests the review. The Tenth Amendment Center piles on due criticism:
In the document, Federal judge John D. Bates wrote an opinion stating that law-abiding citizens are fair game for investigation by the FBI under Section 215 of the Patriot Act, as long as it takes place within the context of a greater international terrorism investigation. This obviously gives a great deal of discretion to the feds to abuse the rights of Americans. . . .
The idea that we can rely on government employees to protect our rights from being violated by other government employees is really a silly concept. It is impossible for politically connected judges beholden to those who put them into prestigious positions of power to consistently defend the freedoms of the people. The situation creates a conflict of interest that usually results in decisions slanted in favor of excessive state power.
Judge John D. Bates was appointed to the U.S. District Court for D.C. by George W. Bush in December of 2001, only a couple months after he signed the PATRIOT Act into law. Fellow W appointee Chief Justice John Roberts later appointed Bates to the secret Foreign Intelligence Surveillance Court in 2006. This opinion was issued on February 19, 2013. Roberts then promoted Bates as Director of the Administrative Office of U.S. Courts the following July.
JustSecurity.org notes that this opinion is the opposite of what was originally promised by proponents of the PATRIOT Act.
For people who were reassured that section 215’s language would protect law abiding Americans from getting sucked into counterterrorism investigations, this is another tchotchke for your Curio Cabinet of Naïveté. But the FISC, to its credit, declassified this opinion and now Congress and the public have a chance to understand what “law” is actually being applied.
It may be the opposite of what was promised, but it is no surprise. It is exactly what its prescient critics saw coming. It is time to repeal the PATRIOT Act and all subsequent legislation that violates the First and Fourth Amendments.