Heritage Foundation Leadership for America

The clock is ticking. In the wake of the terrorist attacks on Washington and New York in September 2001, Congress passed the USA Patriot Act. Some of the provisions in the act provided additional authorities for the sharing of information between law enforcement and intelligence agencies and granted additional powers to fight terrorism, mostly law enforcement tools that had already been used to fight other serious crimes. Congress stipulated that these powers would expire this month unless they were reauthorized by law. Congress will have to act quickly. There only a few legislative days left before the end of year break.

Necessary Law

The Congress performed yeoman’s service in studying the Patriot Act legislation. Both chambers have held tough, comprehensive hearings. Both studied how the law has been implemented to ensure that have been no systemic abuses of individual liberties and that the authorities granted to law enforcement had actually proved useful in counterterrorism investigations. Both added additional safeguards to ensure that there is appropriate judicial and congressional oversight. And both passed legislation (as they did with the original Patriot Act) with broad bipartisan support. A joint conference committee negotiated differences in the two bills. Now some additional concerns have been expressed in the Senate. These need to be resolved.

What’s Missing?

There was one important provision that did not make out of conference. The original Patriot Act established the requirement that a significant percentage of all homeland security grants be distributed automatically to each state, big or small, regardless of national priorities or risks. Current funding formulas guarantee each state .75 percent of the funds available. As a result, 40 percent of these funds are immediately tied up, leaving only 60 percent for discretionary allocations. As the 9/11 Commission’s report rightly stated, the current system is in danger of turning homeland security funding into “pork-barrel” spending, making spending on security just another state entitlement program. In conference, an initiative to restructure the system and allocate money according to risk and needs rather than an archaic formula was rejected by Senate conferees. This is the third time the Senate has turned back House legislation to reform the grant system. And it is just wrong.

Move On

Congress needs to act now. As we speak, terrorism investigations are ongoing. The last thing law enforcement agents need is an “authority gap” when they don’t know what they can legally do until new legislation is passed. The terrorists are not going to take a break over the holidays. We shouldn’t have to either.

It is too late to restore homeland security grant reform to the legislation, but it is not too late to send a bill to the President that preserves the tools needed to fight global terrorism and the safeguards required to protect individual liberties. Meanwhile, Congress will have to come back next year and fix the funding formula so that we stop wasting our tax dollars and spend our money instead on things that make us most safe.

James Jay Carafano, Ph.D., is Senior Research Fellow for National Security and Homeland Security, and Alane Kochems is Policy Analyst for National Security and Defense, in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.