April 15, 2004 | WebMemo on Department of Homeland Security

A Patriotic Day: 9/11 Commission Recognizes Importance of the Patriot Act

Nothing is more important than preventing another catastrophic terrorist attack on Americans. Nothing. That is why the 9/11 Commission's work-a comprehensive, objective review of how our law enforcement and intelligence operations can be improved to prevent a recurrence-is so vital. Whenever a team loses the game, it always reviews the videotape to see how it can improve.

 

During a recent public hearing of the 9/11 Commission, present and former government officials and even the Commissioners themselves emphasized the importance of one new tool adopted after September 11: the USA Patriot Act. They all agreed that the Patriot Act is an essential weapon in the nation's global war on terrorism. Congress should take note and, as President Bush called for in the State of the Union Address, act now to reauthorize provisions in the law due to expire next year.

Confronting the Wall
The Commission is supposed to act in a nonpartisan manner, and-despite controversial testimony by former National Security Council staffer Richard Clarke that has triggered a rancorous series of hearing-recent sessions have provided an important and appropriate discussion of the underlying challenges of structure and strategy that limited both the Clinton and Bush administrations in effectively going after Bin Laden's murderous al Qaeda network.

One key discussion point, in particular, should not be lost. Officials from both administrations acknowledged that before September 11 a "wall" of legal and regulatory policies prevented effective sharing of information between the intelligence and law enforcement communities. For example, as Attorney General John Ashcroft noted, in 1995 the Justice Department embraced legal reasoning that "effectively excluded" prosecutors from intelligence investigations. At times, for prudential reasons, Justice Department officials even raised the "wall" higher than was required by law, to avoid any appearance of "impermissibly" mixing law enforcement and intelligence activities.

 

We now know that the erection of this "wall" had tragic costs. The "wall" played a large role in our pre-September 11 inability to "connect the dots" of intelligence and law enforcement information. As one frustrated FBI investigator wrote at the time, "Whatever has happened to this-someday someone will die-and wall or not-the public will not understand why we were not more effective and throwing every resource we had at certain 'problems.'"

 

Largely in response to these problems, Congress passed the USA Patriot Act in the wake of the September 11 attacks. Though often derided by its detractors as a knee-jerk reaction to the September 11 tragedy, the law represented reforms that, as witnesses before the commission correctly noted, had long been needed to improve U.S. counterterrorism efforts.

 

The bipartisan supporters who passed the Act should be gratified to hear representatives from the Clinton and Bush administrations, including former FBI Director Louis Freeh and Attorney General Janet Reno, reaffirm the importance of the Patriot Act in improving the government's ability to share information and pursue terrorists.

 

Not only was the legislation needed, it has proved its worth in practice. The law has facilitated dozens of reported terrorist investigations by removing both real and imagined barriers that kept the people trying to protect us from working together. And to date, as the Department of Justice Inspector General has reported, there has not been a single instance of abuse of the powers granted in the Act.

 

Liberty Presupposes Security

Safeguarding the civil liberties of American citizens is vitally important, as important during war as during periods of peace. But so too is preserving our security. For, as Thomas Powers has written, "In a liberal republic, liberty presupposes security; the point of security is liberty." The Patriot Act preserves both. Hysterical criticisms that the Act was unnecessary and is a threat to a healthy civil society have proven unfounded, and calls for repeal or significant revision are just wrongheaded.

 

Instead of second-guessing the Patriot Act, Congress should focus on passing legislation to reauthorize the powers granted in the law that are due to sunset in 2005; among these are the very provisions that brought down the "wall" in the first place. As the most recent 9/11 hearings have made clear, transnational terrorist threats will be with us for years to come. In 2006, we will still need the powers of the Patriot Act to protect Americans.

 

James Jay Carafano, Ph.D., is Senior Research Fellow in Defense and Homeland Security in the Kathryn and Shelby Cullom Davis Institute for International Studies, and Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies, at The Heritage Foundation.

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