January 6, 2005 | Commentary on Department of Homeland Security
True conservatives understand the danger that comes from big government. Thus, conservative critics of the Patriot Act are right to be cautious about the expansion of executive power. But critics may err when they equate a possible potential for abuse with the actual existence of abuse.
Sen. John E. Sununu, co-sponsor of the SAFE Act, which would change some provisions of the Patriot Act, argues either implicitly or explicitly that the growth in executive power is a threat, whether or not the power has, in fact, been misused in the days since the anti-terrorism campaign began. He and his fellow conservative critics of the Patriot Act fail to acknowledge the safeguards that were enacted as part of the Patriot Act. A healthy skepticism of any growth in the government, however well founded, shouldn't disregard the potential for executive power to be used beneficially.
Thus, while caution is appropriate, a common-sense approach would weigh the abstract possibility of abuse against the reality of the Patriot Act's enhanced ability to combat terrorism. Therefore any proposal for change in the Patriot Act should be justified by need, not change for its own sake.
To date the Inspector General of the Department of Justice has reported that there have been no abuses of the Patriot Act - none. This finding has been verified by the conclusion of others who have examined the record, including members of Congress. Why then the rush to amend the law and further limit essential governmental investigative powers? If it isn't broke, why try to fix it?
Our concern with the SAFE Act then, is not so much with its modest changes, though they will do little good. Rather our concern is that the changes are bred of fear disassociated from reality and thus add nothing more than another layer of bureaucratic impediments to the anti-terror campaign.
Take, for example, the SAFE Act's requirement changing the current rule that notification of a search may be delayed for a reasonable period of time and substituting an arbitrary seven-day delay period. Proponents of the change say that the current reasonableness standard is unnecessarily vague. But the standard of reasonableness is common in the law - judges have used a "reasonable man" standard in deciding whether someone is civilly liable for negligence for hundreds of years, and a "reasonable suspicion" standard for police interactions with citizenry for nearly 50 years.
In other words, the "reasonableness" standard is . . . well, pretty reasonable. The change proposed by the SAFE Act creates an arbitrary, one-size-fits-every-case rule that creates additional burdens for the appearance of more protection without really achieving anything worthwhile.
Another example of how one might overreact to the potential for abuse lies in the SAFE Act's proposal that counter-terrorism investigators not be allowed to have access to business records until they show "specific and articulable" facts that justify the access. That sounds well and good, but the proposal would actually make it harder to get business records in terrorism investigations than in investigations of offenses like drug trafficking and organized crime.
As it stands now, the SAFE Act appears to be based essentially on an unproven compendium of complaints about the Patriot Act. Some provisions of that act, such as the integral information-sharing rules, will sunset next year. If Congress does nothing, we will go back to the time before 9/11, when our intelligence and law enforcement agencies couldn't "connect the dots." Our most pressing need, then, is to make the Patriot Act permanent, not to weaken its provisions with unnecessary changes.
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 careful oversight to prevent any real abuses of authority. The Patriot Act, with its reasonable provision of authority to allow the government to act effectively and its multiple protections for civil liberties, meets this goal.
The SAFE Act, though, is little more than feel-good legislation. It would erect unnecessary administrative barriers to effective counter-terrorism activity while doing little, if anything, to better protect civil liberties. What's safe about that?
Edwin Meese III, a former U.S. attorney general, is chairman of the Center for Legal and Judicial Studies at The Heritage Foundation. Paul Rosenzweig, an adjunct professor of law at George Mason University, is a senior legal research fellow at Heritage.
First Appeared in The Union Leader, NH