- The Washington Times - Wednesday, August 20, 2003

Attorney General John Ashcroft is under heavy fire for his efforts to ensure there is not a repetition of September 11. Mr. Ashcroft, in a speech at the American Enterprise Institute on Tuesday, began a long-overdue campaign to rebut critics of the Patriot Act, who assert, we believe incorrectly, that the administration is using its powers in a manner that violates the Constitution and runs roughshod over individual liberty.

Four weeks ago, the House voted 309-118 to approve an amendment to the Commerce-State-Justice Departments appropriations bill cutting off funds for enforcing Section 213 of the Patriot Act — a provision authorizing the government to conduct searches in criminal investigations without notifying the property owner until after the search has been conducted. The administration hopes to prevail upon the Senate to remove the provision in conference when Congress returns next month. But Rep. C. L. “Butch” Otter, Idaho Republican, and primary sponsor of the aforementioned amendment, declares that it “is the first of a whole group of assaults that we’re going to make on the Patriot Act.” He adds: “We’re going to have to tear it down piece by piece.”

This is a move that would be irresponsible in the extreme. In a letter to House Speaker Dennis Hastert, Assistant Attorney General William Moschella states that the Otter amendment “would have a devastating effect on the United States’ ongoing efforts to detect and prevent terrorism, as well as to combat other serious crimes.” Under the Patriot Act (and longstanding practice in criminal investigations prior to September 11), the federal government has had the authority to delay notification in carrying out searches. This applies in very limited circumstances — such as instances where immediate notification may endanger potential witnesses, cause the subject of an investigation to flee or result in the destruction of evidence. In every case, the government is required to demonstrate probable cause to a federal judge.

The Otter amendment would effectively destroy a critical tool of law enforcement in preventing terrorist attacks. To illustrate the point, Mr. Moschella provides several hypothetical examples based on actual cases. Take the September 11 attacks, for example: The government develops probable cause to demonstrate that a suspect is involved in a conspiracy to hijack aircraft and crash them into buildings. He has documents and a computer in his hotel room that could identify the co-conspirators and the targets of the plot. If a court authorized the delayed-notice provision, law enforcement could enter and search the hotel room and make copies of the documents without exposing the investigation to the suspect and his unknown co-conspirators. “Furthermore, we know that terrorists often accelerate their plots if one of their associates is identified or arrested,” Mr. Moschella observes. “Providing an immediate tip-off to a terrorist such as a Mohammed Atta that his room or computer has been searched does nothing to … protect civil liberties of American citizens, and potentially could imperil the lives of thousands of innocent Americans.”

Mr. Moschella cites other examples of how the Otter amendment would undermine investigations of terrorism, child pornography rings and narcotics trafficking, and hints that President Bush may veto the Commerce-State-Justice appropriations bill unless the Otter amendment is removed in conference. The president may well have to exercise the veto option if common sense does not prevail in Congress. The specific provision falls well within constitutional standards of search and seizure. Not only is this manifestly reasonable, but it cannot be carried out unless a judicial magistrate makes a finding that there is probable cause to support the claims of the policeman. These would meet the requirements of the law if the crime were merely theft. Given that the Patriot Act is targeted on investigating and preventing mass-murder terrorist activity, it is not only reasonable, but absolutely necessary.

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