July 8, 2004 | Commentary on Political Thought
How ironic that the primary law intended to
protect Americans from terrorism has been subjected to countless
Indeed, you would never know the U.S.A. Patriot Act passed with overwhelming support in Congress right after the September 11, 2001 attacks (commonly known as "9/11"). Many have backpedaled on their support. And if two amendments to an appropriations bill, pending vote this week, manage to succeed, lawmakers will seriously weaken the Act and increase the dangers to the citizens they represent.
Critics argue the various provisions of the Patriot Act greatly infringe upon American liberties while failing to deal effectively with terrorism. Its very name now serves as a symbol for all domestic antiterrorist law enforcement actions. It has become convenient shorthand for any questions that have arisen since September 11 about the conflict between civil liberty and national security.
Too much of the debate, though, has focused not on what the Patriot Act truly does, but on what some people perceive it to do. Most of the proposals for reform mistake the appearance of potential problems and abuse (the myth) with the reality of no abuse at all. Factual analysis, however, shows the case for change has not been made.
The proposed amendments are emblematic of this trend. They purport to provide necessary changes, yet their major provisions lack any factual basis for concluding that changes are necessary.
One section of the Patriot Act that is under attack is Section 213, which authorizes delayed notification of the execution of search warrants. Critics call this "sneak and peek." Normally, search warrants require police to notify immediately an individual whose home or office has been searched. But long before September 11, courts allowed delayed notification if immediate notification would hinder the ongoing investigation by causing the suspects to flee, injure witnesses, or destroy evidence. More than 20 years ago, the Supreme Court ruled that the Constitution does not require immediate notice. The Court called the argument to the contrary - basically the argument against Section 213 - "frivolous."
Delayed-notification warrants are a long-existing crime-fighting tool used to fight organized crime and drug trafficking rings. Section 213 merely applies this technique to terrorist investigations as well. As in the past under common law, the police must get specific authorization for a delayed-notification search warrant from a federal judge or magistrate - under identical standards and procedures for getting any search warrant. And the law makes clear that investigators must ultimately give notice of the search. The amendment to defund Section 213, which should be known as the "Terrorist Tip-Off Act," will notify terrorists they are under investigation. What sense would that make?
Perhaps no provision of the Patriot Act has excited greater false commentary than Section 215, the so-called angry librarians provision. Before the Act, law enforcement agencies could obtain business records and other similar evidentiary items in furtherance of the traditional investigation of a variety of federal crimes. Law officers needed only to obtain a grand jury subpoena for such actions. Section 215 merely extends this provision to terrorist crimes and adds a further protection for the citizen - a judge's order must authorize such evidence gathering.
Interestingly, Section 215 does not specifically apply to library records, but could include them, in addition to such documents as airline manifests, international banking records, and receipts of all sorts.
History shows libraries are included for good reason. In the 1997 Gianni Versace murder case, the 1990 Zodiac gunman investigation, and the hunt for the Unabomber, law enforcement officials sought records from specific libraries, which produced important evidence in those cases. Since the Patriot Act merely authorizes the court to issue similar orders in national security investigations, an amendment to exempt libraries completely from the Act would make such facilities a safe haven for terrorists, including giving them unfettered access to the Internet. Again, what could make less common sense?
The Patriot Act has become something of a political football. Inflammatory TV commercials show hands ripping up the Constitution, with a voice-over blaming Attorney General John Ashcroft. Print ads show an elderly gentleman leaving a bookstore with text decrying the use of government powers to get his reading list. But the hysteria is based on false premises, embodied in the proposed amendments.
We should not make laws based on an unproven and overwrought fear. Most of the steps taken after September 11 to combat terrorism follow those previously authorized to fight serious criminal activity. And there is no evidence of any abuse of Patriot Act provisions.
Capitulating to hysteria is pandering, not leadership. Government's obligation is a dual one: to protect civil safety and security against violence and to preserve civil liberty. This is not a zero-sum game - we can achieve both goals if we empower government to do sensible things while exercising oversight to prevent any real abuses of authority.
Edwin Meese III, a former U.S. attorney general, is the Ronald Reagan Distinguished Fellow in Public Policy at The Heritage Foundation and chairman of its Center for Legal and Judicial Studies.
Originally published in The Washington Times