The proverbial rubber is about to meet the road. This week, the U.S. Congress will determine if the U.S.A. Patriot Act — the most important domestic security legislation since September 11, 2001 — will be re-enacted in slightly weakened form or allowed to lapse in a number of its key provisions.
Since the consequences of the latter would be manifestly detrimental to the War for the Free World, legislators opposed to the Act have offered to extend it for a short period — a gambit they hope will allow them to dumb it down still further. But make no mistake: Additional delay and more negotiations will not improve either the bill or the national security. To the contrary, they likely would jeopardize both.
That would be particularly true if the Patriot Act’s most vociferous critics on the Left and their less numerous (and most unlikely) bedfellows on the Right get their way. They tend to characterize the Act as an assault on the basic freedoms enshrined in the Bill of Rights and have sought far-reaching changes in the tools it provides law enforcement to detect and prevent terrorist plots inside the United States.
In reality, the Patriot Act is an eminently sensible overhaul of the government’s antiquated counterterror arsenal, an overhaul that reflects the realization we cannot hope to fight a 21st-century war using 20th-century legal instruments.
Consider two elements critics have most insistently demanded be repealed: (1) the so-called “library records” provision (Section 215) and (2) the authorization of what have been derided as “sneak-and-peek” search warrants (Sec. 213).
The dust-up over government access to library information is truly a manufactured controversy. For one thing, libraries are not mentioned anywhere in the pertinent Patriot Act provision. Moreover, law enforcement has been authorized for decades in ordinary criminal cases to subpoena library records (along with any other business records). This has not had any noticeable effect on Americans’ reading habits.
The Patriot Act only made business records (including those of libraries) available on roughly the same terms in national security cases as they have long been in criminal cases.
The reason should be obvious: It makes no sense to enshrine libraries as safe havens for terrorist planning.
In fact, as we now know, many of the September 11 hijackers used American and European libraries to prepare the run-up to the attacks. Relevant literature, including bomb manuals and jihadist materials, have been staples of terrorism prosecutions for more than a decade. Privacy extremists of organizations like the American Civil Liberties Union (ACLU) nevertheless have reacted to the Patriot Act’s much-needed business records law as if the Gestapo had seized office in the United States.
Similarly, the Patriot Act did not — as its critics would have us believe — create new and unsavory “sneak-and-peek” warrants. It does, however, allow agents to search premises but delay notification of the search to subjects of a terrorism investigation.
The Patriot Act’s notification provision is no different in principle from the legal notice previously required to persons intercepted in a court-ordered wiretap. In such situations, notification of the target has routinely been delayed for weeks or months after the eavesdropping ends.
Doing so can be absolutely critical to the arrest and prosecution of suspected perpetrators: Delayed notification allows the government to complete its investigation without giving the subjects a heads-up that would certainly cause them to flee or destroy evidence.
The Patriot Act, in the so-called “sneak-and-peek” arena, established consistent standards federal courts must follow in determining whether to permit delayed notification. Previously, a hodgepodge of different rules were applied in various jurisdictions. This is precisely the sort of fairness and equal protection Congress should provide — yet, it has been criticized sharply for doing so in the Patriot Act.
On both the business records and delayed notification sections of the Patriot Act (among others), the stance of the American Civil Liberties Union and like-minded critics seems to have an ulterior motive. They not only oppose such legislation in the Patriot Act. They appear intent on reopening settled case law on use of these authorities on crimes unrelated to terror.
Congress should not encourage, let alone facilitate, such efforts by holding open the Patriot Act for further revision and adulteration. The original Patriot Act as a whole infringed only modestly on our civil liberties and did not meaningfully intrude on the privacy rights of law-abiding Americans. We need to keep in mind, moreover, that if its precautions fail to prevent some future terrorist attack, we are likely to see impassioned demands for greater security measures at the expense of our freedoms. Since few, if any of us relish that prospect, we need to ensure the Patriot Act retains its core provisions and authorities — and remains an effective tool for securing the home front in the War for the Free World.
Frank J. Gaffney Jr. is president of the Center for Security Policy, a columnist for The Washington Times and lead-author of “War Footing: 10 Steps America Must Take to Prevail in the War for the Free World,” from which this article was adapted.