December 28, 2005,
It's difficult to know which is worse: When Congress disgraces itself by throwing federal dollars at indefensible parochial projects like the notorious "bridge to nowhere," or when it tries to grapple with serious issues facing the nation. The debate over the Patriot Act, the most important counterterrorism tool passed by Congress since Sept. 11, has revolved around absurd trivia, distorted and hyped by some members of Congress who either don't know better or are deliberately dishonest.
Janet Reno has endorsed the Patriot Act. The 9/11 Commission has called it a vital tool in the war on terror. The Justice Department maintains that it was crucial to breaking up terror cells in Seattle, Portland, Ore., Buffalo, N.Y., Virginia, and Detroit. Key provisions of the act were set to expire at the end of 2005, and should by all rights have with perhaps a few minor tweaks been renewed with something like universal acclamation.
Instead, Senate Democrats filibustered its renewal (with the support of four Republican defectors), and when Republicans didn't have 60 votes to break it, Senate Minority Leader Harry Reid exulted to a group of supporters, "We killed the Patriot Act." That's like saying: "I've got great news. I just set law enforcement back years and reinstated the arbitrary constraints that kept us from having any chance of preventing 9/11. Drinks are on me!"
The central provisions of the act are unquestionably desirable. It tears down "the wall" between law enforcement and intelligence that kept them from effectively communicating prior to 9/11 because of phantom civil-liberties concerns. (One frustrated FBI agent presciently warned, when he couldn't share information about what turned out to be two of the 9/11 hijackers, that because of the wall, "Somebody, someone will die.") It gives counterterrorism agents the same tools that have been used against drug dealers and the mob for years: a roving wiretap that follows an individual even if he repeatedly changes phones, and the ability to conduct no-notice "sneak-and-peek" searches. Not to apply these powers in the fight against terrorism would be suicidal.
Patriot Act critics focus chiefly on something called Section 215. It allows investigators to obtain records from a third party say, from a bank if they are relevant to a probe of a given target. Opponents of the Patriot Act make this provision sound as if it has brought the dark night of tyranny to America. They never mention it without saying it could be used to get library records, as if all counterterrorism agents care about is the reading habits of terror suspects. Liberal Rep. Jerrold Nadler (D., N.Y.), says Section 215 empowers the government to act as the "thought police."
Despite all the clamor, the government has apparently never used Section 215 to obtain library records. Even if it did, it wouldn't be scandalous. Library records were sought in the cases of the Unabomber and the Zodiac and Versace killers, with Americans' civil liberties remaining intact. It is conceivable that such records could be sought someday in a terrorism investigation because, as Deroy Murdock has reported, five of the 9/11 hijackers used computers and the Internet at libraries.
A judge has to sign off on a 215 order, which is more of a check than what exists on other investigative tools. Prosecutors routinely use grand-jury subpoenas, which judges don't approve, in criminal cases. Administrative subpoenas, which the FBI can use in health-care-fraud cases, don't require a judge or a grand jury. The implication of the Democrats' position on Section 215 is that they want investigators to have more leeway tracking down health-care cheats than terror suspects.
Most other criticisms of the act are even more piddling and less meritorious. A temporary deal has been cut to keep the key provisions of the act set to expire at the end of the year alive for a few more weeks. Then, the debate will pick up again. Warning: More misunderstandings and demagoguery ahead.