The proverbial rubber is about to meet the road. This week, the U.S. Congress will determine whether the USA Patriot Act – the most important piece of domestic security legislation adopted since 9/11 – will be reenacted in a slightly weakened form, or allowed to have a number of its key provisions lapse.
Since the consequences of the latter would be manifestly detrimental to the War for the Free World, legislators opposed to the Act have offered to extend it for a short period – a gambit they hope will allow them to dumb it down still further. Make no mistake, however: The effect of additional delay and more negotiations will not be to improve either the bill or the national security. To the contrary, it would likely jeopardize both.
That would be particularly true if the Patriot Act’s most vociferous critics on the Left and their less numerous (and most unlikely) bedfellows on the Right were to have their way. They have tended to characterize the Act as an assault on the basic freedoms enshrined in the Bill of Rights and have sought far-reaching changes in the tools it provides law enforcement to detect and prevent terrorist plots inside the United States.
In reality, the Patriot Act is an eminently sensible overhaul of the government’s antiquated counter-terror arsenal, an overhaul that reflects the realization that we cannot hope to fight a 21st century war using 20th century legal instruments. Consider two of its elements whose repeal the critics have most insistently demanded: 1) the so-called "library records" provision (Section 215) and 2) the authorization of what have been derided as "sneak-and-peek" search warrants (Sec. 213).
Libraries as Terrorist Safe-havens? The dust-up over government access to library information is truly a manufactured controversy. For one thing, libraries are not mentioned anywhere in the pertinent Patriot Act provision. Moreover, law enforcement has been authorized for decades in ordinary criminal cases to subpoena library records (along with any other business records). This has not translated into any noticeable impact on Americans’ reading habits. All the Patriot Act did was make business records (including those maintained by libraries) available on roughly the same terms in national security cases as they have long been in criminal cases.
The reason for this should be obvious: It makes no sense to enshrine libraries as safe havens for terrorist planning.
In fact, as we now know, many of the September 11 hijackers used American and European libraries for preparation in the run-up to the attacks. Relevant literature (such as bomb manuals and jihadist materials) has been a staple of terrorism prosecutions for more than a decade. Privacy extremists of organizations like the American Civil Liberties Union (ACLU) have nonetheless reacted to the Patriot Act’s much-needed business records law as if the Gestapo had seized office in the United States.
Tip-off Terrorists? Similarly, the Patriot Act did not – as its critics would have us believe – create new and unsavory "sneak-and-peek" warrants. It does, however, allow agents to search premises but delay notification of the search to subjects of a terrorism investigation.
The Patriot Act’s notification provision is no different in principle from the legal notice that was previously required to be given to persons intercepted in a court-ordered wiretap. In such situations, notification of the target has routinely been delayed for weeks or months after the eavesdropping ends.
Doing so can be absolutely critical to the arrest and prosecution of suspected perpetrators: Delayed notification allows the government to complete its investigation without giving the subjects the sort of heads-up that would certainly cause them to flee or destroy evidence.
What the Patriot Act did, in the so-called "sneak-and-peek" arena, was to establish consistent standards that the federal courts must follow in determining whether to permit delayed notification. Previously, a hodge-podge of different rules were applied in various jurisdictions. This is precisely the sort of fairness and equal protection Congress should provide – yet, it has been criticized sharply for doing it in the Patriot Act.
The Bottom Line
With regard to both the business records and delayed notification sections of the Patriot Act (among others), the stance taken by the American Civil Liberties Union and like-minded critics seems to have an ulterior motive. They are not only opposed to such legislation in the Patriot Act. They appear intent on reopening settled case law regarding the use of these authorities with respect to crimes unrelated to terror.
The Congress should not encourage, let alone facilitate, such efforts by holding open the Patriot Act for further revision and adulteration. The original Patriot Act as a whole infringed only modestly on our civil liberties and did not meaningfully intrude on the privacy rights of law abiding Americans. We need to keep in mind, moreover, that if its precautions fail to prevent some further terrorist attack, we are likely to see impassioned demands for greater security measures, at the expense of our freedoms. Since few, if any of us relish that prospect, we need to make sure the Patriot Act retains its core provisions and authorities – and remains an effective tool for securing the home front in the War for the Free World.