April 14, 2005,
Several provisions of the Patriot Act the antiterrorist law enacted in the weeks after September 11 are scheduled to expire this year unless Congress renews them. Critics of the act, on both the left and the right, want Congress to make several modifications to the law. But their suggested changes would be harmful.
What they most want to change is Section 215 of the Patriot Act. That section allows federal judges to order that records be provided to law enforcement when those records are sought for the purpose of fighting international terrorism. While the act does not specifically mention library records, it does not exempt them, either, so critics have latched on to the idea that the FBI is going to be poring over John Q. Public’s reading list. But criminal prosecutions can look into library records, too, when they are relevant to an investigation. Grand juries can subpoena records without the judicial and congressional oversight that Section 215 provides for. The law also specifically requires that no investigation can proceed “solely upon the basis of activities protected by the First Amendment to the Constitution.” The Patriot Act forbids recipients of an order from disclosing that they got it. The secrecy here is unavoidable: Terrorism investigators cannot do their jobs while constantly tipping off the suspects.
The Department of Justice reported in September 2003 that Section 215 had not been used up to that point. Reports on its use have been transmitted to Congress twice a year since then, but remain classified. So this provision does not appear to have been abused. The relative infrequency of its use does not, however, establish that law enforcement does not need it. If the law makes libraries a place where terrorists can conduct their operations in relative safety, we can be sure that terrorists would take note.
The New York Times makes another complaint about Section 215: “It lets the government seize an entire database all the medical records of a hospital, all of the files of an immigration group when it is investigating a single person.” It’s a strained argument. Orders for records under the section can be judicially reviewed, and the standard for review includes that the order be reasonable in scope.
The Patriot Act’s provision concerning “delayed-notification” or “sneak-and-peek” searches has also come under attack. Even though it is not up for renewal this year, a bipartisan coalition of congressmen wants modifications. The law allows terrorism investigators to get a warrant for delayed-notification searches when they can persuade a judge that immediate notification would endanger someone’s life, cause a suspect to flee, result in the destruction of evidence, cause the intimidation of witnesses, or “otherwise seriously jeopardize” an investigation. (The judge decides how long notification can be delayed, although investigators can apply for extensions.)
The critics want to pare back that list of causes: They don’t want to allow delayed notification just because investigators and judges believe that immediate notification might result in witness intimidation or jeopardize an investigation. This is an unreasonable, and dangerous, position. The critics complain that judges rarely turn down requests for delayed-notification searches but we can be sure that if they were turned down regularly, the critics would regard the denials as proof that investigators were overzealous in requesting them.
[lobbying against the Patriot Act]
that fought antiterrorist bills
during the 1990s.”
The ACLU objects to the law’s definition of “domestic terrorism.” It has complained that this definition “could subject political organizations to surveillance, wiretapping, harassment, and criminal action for political advocacy,” and “might allow the actions of peaceful groups that dissent from government policy, such as Greenpeace, to be treated as ‘domestic terrorism.’” But the definition clearly applies, as the Justice Department notes, only to groups that “engage in criminal wrongdoing that could result in death.” If a political group is engaged in such conduct, then it ought to be subject to surveillance.
The critics of the Patriot Act, when not simply distorting its provisions, have not shown any appreciation of the preconditions for effective law enforcement. The government has an obligation to protect the public from terrorist attack and if these provisions were not in place, and an attack were to occur, Washington would be consumed by justifiable finger-pointing over why such reasonable measures were not taken. The critics have offered only hypothetical examples of abuses. Much of the criticism comes from people who claim that we should approach the war on terrorism as a matter for law enforcement rather than military action. All too often, they’re against law enforcement, too.
Press accounts of the political debate over the Patriot Act have routinely referred to the critics as an “unusual” left-right coalition. It is not so unusual as that. It is the same coalition that fought antiterrorist bills during the 1990s, and that fought Patriot itself in 2001. Congress largely brushed it off both times, and would be amply warranted in doing so again.