Thursday, October 21, 2004

The Patriot Act, overwhelmingly passed by Congress after September 11, 2001, alarms the American Civil Liberties Union, The Washington Post, the New York Times, government officials in 152 communities, and three states that have passed resolutions condemning this emergency measure.

To these critics, the bill smells of a George Bush plan to undermine civil liberties. In the second presidential debate last week, John Kerry said, “I believe in the Patriot Act,” but took a swipe at “the way that the Patriot Act has been applied.”

A closer examination of facts suggests the paranoia is unjustified. Most of the Patriot Act is devoted to improving information-sharing between the intelligence services and law enforcement. The anti-Patriot Act hysteria stems from a few provisions that merely fine-tune investigative powers granted the government under pre-existing law. The never-used library provisions extend FBI power for warrantless records searches without judicial scrutiny — even on people not themselves terror suspects. The “sneak and peek” provisions authorize the FBI after obtaining a warrant to secretly search homes, cars or offices of anyone, provided the investigation relates to terrorism. The significant change is the search is kept secret. Only law enforcement knows of it.

But is this so horrible? Remember, we are at war. If someone starts reading cookbooks on how to build a dirty bomb, isn’t this something the authorities should look into? As for sneak-and-peak, it must be authorized by a federal judge satisfied the authorities have reason to suspect terrorism.

In other words, the streamlined investigative provisions make it simpler for FBI agents to obtain from phone companies, Internet service providers and other communications companies relevant information, such as e-mail subject lines and cell phone logs, that might foil a terrorist plot. But even these can be used only after getting administrative subpoenas known as National Security Letters. The Act bars recipients of the letters from disclosing to their customers or anyone else that the government scrutinized the records. This prevents alerting terrorists that they are under inquiry. It also guarantees protection of innocent persons’ privacy.

Already the Act seems to be producing results. Since 2001, the Justice Department says, as a result of terrorism investigations, it has charged at least 310 defendants with criminal offenses, 179 of whom have been convicted. Many fewer terrorists are on the loose, thanks in part to the Act. Results like this help explain why dedicated public servants like former New York Mayors Rudolph Giuliani and Ed Koch, ex-CIA director James Woolsey and 66 other prominent citizens have written congressional leaders in support of the Act.

As noted, even Mr. Kerry supports the Patriot Act, despite trying to use it to advantage in the second debate. He voted “Aye” when it passed overwhelmingly and only says he would tweak the measure, make it “stronger” on money laundering and “smarter” on library and “sneak-and-peek” searches.

So what’s all the fuss about anyway? After all, we are at war; and, indeed, the Patriot Act is benign as compared with the deeds of such noted libertarians as Abraham Lincoln, who suspended the writ of habeas corpus during the Civil War, and Frankin Roosevelt, Earl Warren and Hugo Black who authorized the Japanese-American internments during World War II.

A Manhattan federal judge last month, dealing with a predecessor statute, invalidated Patriot Act procedures for getting information from an Internet service provider. The media were delighted. The Washington Post blared, “Key part of Patriot Act ruled unconstitutional.” The New York Times trumpeted, “Judge strikes down section of the Patriot Act.” No such luck. Both papers later admitted they were wrong. Both papers published a “correction” on the Internet the next day. The court decision focused not on the Patriot Act, but on the Electronics Communications Privacy Act of 1986, broadened in 1993 and again by the Patriot Act in 2001.

The knee-jerk reaction of both The Post and the New York Times reveals a tendency to fire before they aim or are ready. Perhaps they see the Patriot Act as a club to bash Attorney General John Ashcroft. There is much not to admire in Mr. Ashcroft, but, as the September 11 commission observed: “The choice between security and liberty is a false choice, as nothing is more likely to endanger America’s liberties than the success of a terrorist attack at home. Our history has shown us that insecurity threatens liberty. Yet if our liberties are curtailed, we lose the values that we are struggling to defend.”

I have read the act carefully, and agree with 99 senators that it is a reasonable way to strengthen intelligence and law enforcement against our sworn enemies while doing no significant damage to traditional liberties.

James D. Zirin is a lawyer in New York

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