Orin Kerr replies that this is what happened:
the FBI opened a bioterrism investigation after an investigation of a person who fell unconscious led to the discovery of lots of biology equipment in an art professor's home. Evidently, the FBI suspected that the equipment might be part of a biological weapons lab, and opened an investigation. I gather that the alleged "intimidation" is that the grand jury issued subpoenas ordering three artists to testify, and the artists reported that they were very intimidated by the subpoenas (understandably, I might add). What's the connection to the Patriot Act? The Patriot Act expanded the biological weapons statute; if the biology equipment had been a bioweapons lab and not an art project, possession of the bioweapons lab would have violated the Patriot Act. Was the Patriot Act "used to intimidate" anyone here? I don't think that's a fair conclusion. First, it seems that the law enforcement officers opened an investigation in good faith; second, the officers could have used another criminal statute as the predicate offense to open an investigation if the Patriot Act had not been passed.
Tabarrok and Kerr are talking past each other; the 'used to' locution is ambiguous and they're each using it in different ways. There's an intentional reading, where the Patriot Act has been used to intimidate artists only if the Feds were thinking, 'hey, let's go intimidate some artists.' There's also a nonintentional reading, where the Patriot Act has been used to intimidate artists if some artist-intimidation happens, even if the Feds were just thinking 'let's go see if there are any weapons over there.' The latter is what happened. (The former doesn't really make sense -- why would anyone want to intimidate a bunch of artists?) Now, is it good to live in an America where this can happen? I'm in more of a philosophy of language mood than a political philosophy mood now, so I'll let you decide.
2 comments:
The article that Alex T. linked to includes this passage:
"Ms. da Costa told the Times that the bacteria was produced legally in "cooperation with a microbiology lab in Pittsburgh to create a transgenic E. coli that was completely harmless." In an interview with newbrainframe.org, an Italian art website, she said she found the subpeona alarming.
""I have no idea why they're continuing (to investigate)," said da Costa, one of those subpoenaed. "It was shocking that this investigation was ever launched. That it is continuing is positively frightening, and shows how vulnerable the PATRIOT Act has made freedom of speech in this country.""
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It seems clear what the charge is in this context: it's the intentional reading, not the nonintentional reading. Otherwise, what's the relevance of the vulnerability of freedom of speech? The suggestion is that the content of the artists' speech (a collective, in this case) led to the investigation.
On the more important issue: I think it's a good thing that there are laws against private bioweapons labs, and that the FBI and local police departments believe that the unusual and private production of biological material in an apartment where a woman has died is worthy of further investigation, even if some feelings are hurt in the event.
I too am happy that there are laws against private bioweapons labs in America. It's a different question whether the government had enough evidence in this case that their action was justified.
The person in the cited article might be making the charge that's based on the intentional reading. But Tabarrok might not be. Maybe he thinks it's still bad if the government's goal was merely to figure out what was going on, but they launched too big an investigation on too little evidence and the artists got intimidated.
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