June 17, 2005 | Commentary on Department of Homeland Security

Law Strikes Right Balance

On June 14, 1985, TWA Flight 847 took off from Athens bound for Rome. Shortly after takeoff, two men in masks commandeered the plane. Negotiations began, and the FBI was able to intercept communications between the hijackers and possible co-conspirators in the United States.

During a stop in Beirut, the hijackers grew impatient, killed an American Navy diver from Maryland named Robert Stethem and dumped his body on the tarmac on live TV. At this point, the Justice Department announced its intention to capture and prosecute those responsible. This meant the "primary purpose" of the intercepts no longer was foreign intelligence-gathering. It was now, clearly, prosecution.

As a result, because the rules prohibited using intelligence-gathering techniques in a situation in which intelligence-gathering was not the main purpose, the FBI did what it thought it had to do and turned off its listening devices.

As lawmakers take up renewal of the Patriot Act, we're going to hear a lot about the potential for police or prosecutorial abuse in several of its provisions. And, to be sure, many of the provisions will require constant and consistent oversight.

But free societies constantly make tradeoffs between freedom and security, and the calculus in those decisions changes with the circumstances. It appears the balance struck by the Patriot Act has been about right. It has brought an end to law enforcement officials making the kinds of decisions the FBI did in the TWA Flight 847 case, and it has done so with no discernible damage to civil rights.

The "wall" that formerly existed between intelligence and law enforcement when it came to sharing information has been the main casualty of the Patriot Act. And what did that wall do for us? Coleen Rowley, the FBI whistleblower, says it prevented the FBI from "connecting the dots" before 9/11.

The Patriot Act replaced the "primary purpose" standard with one that allows intelligence-style information-gathering techniques, such as the intercepts in use that day in Beirut, if intelligence-gathering is a "significant" purpose of the investigation. In other words, now, any information lawfully gathered during a foreign or domestic counterintelligence investigation can be shared with other federal agencies.

Let's hope this spirit of reasonableness governs the debate over whether to renew the Patriot Act. The debate ought not stray into alleged shortcomings of the war on terror. It should address three questions: Do the provisions of the Patriot Act that require renewal help in the war on terror? Are they being abused? Is there sufficient oversight over the agencies involved in protecting us from the terrorist threat?

The answer to the first question is obvious. According to the Justice Department, we've identified and disrupted more than 150 terrorist threats, captured or killed nearly two-thirds of al-Qaida's known leadership, ended the terror careers of 3,000 operatives, broken up terrorist cells in Buffalo, Detroit, Seattle, Portland, Ore., and Northern Virginia, charged 379 people in the United States with terrorism-related crimes, convicted more than 200 of them and frozen $136 million in assets around the world.

As for the second question, consider the remarks of Democratic Sen. Dianne Feinstein of California on the Senate floor in 2003. "I've tried to see what has happened in the complaints that have come in," she said. "And I've received, to date, 21,434 complaints about the Patriot Act." These, she said, turned out to be unrelated civil liberties gripes or complaints about a "Patriot Act II" that doesn't yet exist. "I have never had a single [verified] abuse of the Patriot Act reported to me. My staff e-mailed the ACLU [American Civil Liberties Union] and asked them for instances of actual abuses. They e-mailed back and said they had none."

As for the third question, the law, though hastily written, contains a bevy of safeguards against abuse. Courts still must approve sneak-and-peek warrants - and even then, law enforcement has to demonstrate a clear likelihood that evidence would be destroyed or witnesses harmed for this special type of enforcement.

To be sure, one man's giving aid and comfort to the enemy is another's lawful expression of First Amendment rights. The Patriot Act did not outlaw criticism of our government, and it cannot and should not be construed as such. But when senators such as Ms. Feinstein and Delaware Democrat Joseph R. Biden Jr., who said the Justice Department "is doing a pretty good job" of implementing the Patriot Act, are trying to cool the rhetoric, someone must be doing something right.

James Jay Carafano and Paul Rosenzweig are senior legal research fellow for national security and homeland security and senior research fellow, respectively, at the Center for Legal and Judicial Studies at the Heritage Foundation. They are co-authors of " Winning the Long War: Lessons from the Cold War for Defeating Terrorism and Preserving Liberty."

About the Author

James Jay Carafano, Ph.D. Vice President for the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

First appeared in the Baltimore Sun