When Assistant Attorney General Christopher Wray stepped down as head of the Justice Department’s Criminal Division a few days ago, The Washington Times reported his allegation that critics have “misled the public” about the secretive search powers authorized and expanded by the Patriot Act. As a former Member of Congress who voted in favor of the legislation in 2001, I believe many provisions in the Act are appropriate for the government to uncover and prosecute acts of terrorism.
I believe just as strongly, however, that other provisions go far beyond this vital mission and undermine our constitutional freedoms and Fourth Amendment rights. In making this point openly, whether in Town Hall-style debates with Justice Department officials, or in testimony before the House and Senate Judiciary Committees, I am hardly “misleading” anyone.
When Congress passed the Patriot Act just 45 days after September 11, we recognized that some of the powers allowed were extraordinarily intrusive and eroded our normal system of checks and balances. As such, we made sure certain sections of the act would sunset on Dec. 31, 2005. The current call for review and expiration of these sections is therefore not a “mistake,” as charged by Mr. Wray, but a sound, deliberate, and lawful decision — passed by Congress and signed by President Bush. In fact, Attorney General Alberto Gonzales himself has said he is willing to discuss possible amendments to the law (although he has not yet embraced the types of reforms we believe are needed).
Justice Department officials, like Mr. Wray, also tend to obscure the reality that some of the powers authorized for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” as the Patriot Act was sold to the American people, are really being used in non-terrorism cases. Through the ongoing oversight hearings Congress is holding, we have learned more about the government’s increasing use of secret search powers not in terrorism cases but in run-of-the-mill criminal cases. One of the most controversial portions of the act is Section 213, the “sneak and peek” provision. This allows law enforcement agents to secretly search our homes and offices, take whatever they wish, and yet not notify us for weeks, months or indefinitely.
Mr. Wray also asserts that “the American people should know that every provision is subject to oversight by the courts.” This is not the case. Some of the expanded Patriot Act power allows law enforcement alone to order disclosure of extensive records; without going before a judge, and without having to show any specific and articulable facts connecting the records to a foreign terrorist. Under Section 505, the FBI can issue National Security Letters (also known as “administrative subpoenas”) to obtain financial records, credit reports and Internet service provider (ISP) information, without court approval; moreover, the recipient is gagged by statute from disclosing the search. A federal court recently ruled that this power goes too far, noting that “an unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society.”
One of the biggest spin maneuvers by supporters of the Patriot Act is the claim that only the extreme left opposes any of the law’s provisions. For instance, in a recent Times op-ed piece, Douglas MacKinnon, press secretary for Bob Dole when he was a senator, said that “if our Congress does allow the Patriot Act to expire, those cheering louder than those on the far left will be those who mean us the greatest harm.” Such venomous hyperbole should have no role in this debate.
I am chair of a coalition called Patriots to Restore Checks and Balances (PRCB), which includes the American Conservative Union, Gun Owners of America, and many other leading conservative organizations, all of which support our military and our law enforcement, but all of whom also believe that modest, substantive reforms to certain parts of this sweeping legislation are necessary to keep those powers in balance. We believe that allowing federal agents to secretly search individuals’ homes and businesses without notification, poses a grave threat to the fundamental freedoms our Fourth Amendment was written to protect.
We believe in traditional conservative values, like accountability. Putting sunsets in the law helps ensure greater accountability, no matter who occupies the White House, by creating incentives for the Justice Department and the FBI to tell the American people how the extraordinary powers are being used. To date, for example, the Justice Department has failed to disclose how many U.S. citizens’ homes, businesses or records have been secretly searched under the Patriot Act provisions, such as Section 213, or even how many National Security Letter searches have been executed.
To fix these controversial sections of the law, PRCB supports the bipartisan SAFE Act. This legislation would maintain those Patriot Act provisions that are truly necessary to keep Americans safe, while placing important checks on those expanded authorities that are out of line with the Constitution. Primary sponsors of the SAFE Act include Sen. Larry Craig, Idaho Republican — a solid conservative and fellow NRA board member; hardly a “flaming liberal” and certainly as staunch an anti-terrorist as you’ll find in the Congress.
When leading conservative groups share some of the same concerns as organizations on the other end of the ideological spectrum, I think it’s time for Congress to ignore the hyperbole of the defenders of the status quo and pay attention.
Bob Barr, a former Republican member of the House of Representatives from Georgia, is a columnist for United Press International.