Stop the Patriot Act

Reason Magazine 

Making a Meth of the PATRIOT Act

Legislative mission creep will turn runny noses and lobster fishing into terrorist acts

John Berlau

If you thought al Qaeda or Iraqi insurgents were the major threats facing America, Rep. Charlie Dent (R-Pa.) says you’re wrong. According to Dent, “The growing availability of methamphetamine is a form of terrorism unto itself.” Many of Dent’s colleagues apparently agree, so they’ve attached surveillance, “smuggling”, and “money laundering” provisions to the reauthorization of the USA PATRIOT Act.

These vast new police powers, contained in a new “Combat Methamphetamine Act” (CMA) and other provisions, serve no purpose in the ongoing and serious struggle against terrorism. One proposal could place millions of Americans who purchase cold medicine on a huge government watch list; another could broaden powers that have been used to prosecute people for catching lobsters whose tails are too short. What could possibly be Congress’ motivation in adding stuff like this to a mammoth piece of counterterrorism legislation (ironically, as part of an agreement negotiated with wavering Senators to put more checks on the government’s PATRIOT Act powers)? The answer is, to tweak the parlance of pundits, very September 10th. The CMA pushes Congress’s favorite pre-9/11 bipartisan activity: escalating the never-ending War on Drugs.

Ironically, some Democrats who objected to National Security Agency wiretaps in December actually championed provisions that step on privacy in the name of stopping meth. Sen. Dianne Feinstein, (D-Calif.), who voted for a filibuster after the revelation of the National Security Agency’s domestic spying program in December, co-sponsored the CMA and helped insert it into the PATRIOT Act conference report after failed attempts to pass it through other legislation. The new provisions were stalled with the filibuster and temporary PATRIOT extensions, but now appear to be poised for passage with the compromise bill.

The CMA would move cold medicines such as Sudafed behind the counter, on the grounds that their active ingredient, pseudoephedrine, is a potential meth component. In DiFi’s words, the solution to this non-problem would include “requiring purchasers to show identification and sign a log book.”

Once you sign for your medicine, your name becomes part of “a functional monitoring program” that would “allow law enforcement officials to track and ultimately prevent suspicious buying behavior of ingredients for meth production,” according to a Feinstein press release describing a similar stand-alone bill.

Provisions such as these have already been enacted at the state level, and they’ve attracted criticism from groups not normally opposed to strong measures in the war on terror or the war on drugs. The conservative groups Frontiers of Freedom and the American Legislative Exchange Council, along with Dennis Vacco, New York State’s Republican former Attorney General, have criticized state bans on over-the-counter cold medicine.

But the federal CMA goes further than even many of the state laws have. In North Carolina, a state not notorious for being soft on drugs, lawmakers exempted liquid and gelcap forms of medicines with pseudoephedrine, as well as children’s versions of the medicine, from behind-the-counter rules. The federal CMA makes no such exceptions.

The PATRIOT Act’s new anti-meth provisions don’t end there. One would classify “methamphetamine precursors” such as pseudoephedrine in the same manner as “Schedule II” drugs” like opium in order to set domestic “production quotas.” And there are enhanced penalties and broadened definitions for “smuggling” and “money laundering” with no terrorism prerequisites.

The Heritage Foundation, which supports the PATRIOT Act and general drug-control measures, nevertheless charges that even the current loose definitions of money laundering and smuggling are leading to the “overcriminalization” of petty regulatory violations. A Heritage paper cites an astonishing example of how far combating meth could take the PATRIOT Act from its ostensible business of combating terrorism. Fisherman David McNab is now serving a multi-year sentence because smuggling and money laundering charges were tacked on to a minor environmental violation in bagging lobsters that were less than 5.5 inches in length. “The lobsters were ‘smuggled’ in plastic bags for all to see,” Heritage authors Paul Rosenzweig and Ellen S. Podgor note. “The proceeds from the sale of the lobsters were ‘laundered’ because they were deposited in a bank.” (A good description of the McNab case is also available in Gene Healy’s Cato Institute book Go Directly to Jail: The Crminalization of Almost Everything, but one detail is worth noting here: McNab wasn’t even guilty of attacking American lobster interests: He was fishing in Honduras, and the smuggling charge stems from his violation of the “Lacey Act,” a law that prohibits importation of wildlife that was taken in violation of foreign law.)

Sadly, even with some checks on the PATRIOT Act, these new liberty-threatening items are poised to slip by as “bipartisan” and “non-controversial.” But one force that might stop them is a coalition of genuine civil libertarian critics of the PATRIOT Act combined with PATRIOT supporters who think that new anti-terrorism powers should be limited to terrorism cases. For if bending the PATRIOT Act to combat meth isn’t legislative mission creep, nothing is.