On Tuesday, the House of Representatives voted down a proposal to renew three expiring parts of the USA PATRIOT Act, only to reverse course a few days later. Tuesday’s vote was a grave mistake, and the Senate should take care not to repeat it. The Patriot Act is a critical weapon in our struggle against al-Qaeda, and Congress shouldn’t unilaterally disarm.
Notwithstanding the law’s controversial reputation, these sections of the Patriot Act are actually fairly modest. They simply let counterterrorism agents use some of the same tools that regular cops have been using for decades. And they contain elaborate safeguards to prevent abuses. (Full disclosure: I helped write the Patriot Act when I was a lawyer at the Justice Department.)
Take, for instance, Patriot’s “roving wiretaps” authority.
Sophisticated criminals like drug dealers and mobsters sometimes try to thwart surveillance by repeatedly switching cell phones. The result is a drawn-out game of cat and mouse. Investigators would get a court order to tap a suspect’s new phone only to find out that he’d already switched to an even newer one. So it was back to the judge for a fresh warrant.
In 1986, Congress solved this problem by letting investigators track criminals with roving wiretaps — court orders that apply to particular people, instead of particular devices. That means agents can monitor a suspect regardless of what phone he’s using, without heading back to court first.
The Patriot Act allows the same thing in national-security investigations. The basic idea is to level the playing field between criminal cases and terrorism cases. If a roving wiretap is good enough for Tony Soprano, it’s good enough for Mohamed Atta.
In addition, the law contains strict safeguards to protect civil liberties. As in the criminal context, a court order is necessary. FBI agents can’t decide by themselves to eavesdrop on every phone or e-mail account a person uses. They have to appear before a court and convince it that there’s probable cause, among other things.
Or consider the so-called “libraries” provision.
In criminal cases, grand juries routinely subpoena documents from businesses such as credit-card companies and online retailers. The Patriot Act lets agents get the same business records in terrorism cases — but only if they persuade a judge that the documents are relevant.
This provision isn’t aimed at libraries, though it conceivably might be applied to them. Still, that isn’t as bad as it sounds. It’s not uncommon for grand juries to demand library records in criminal cases. That happened a half-dozen times during the Unabomber investigation. And a grand jury in New York subpoenaed library records in the 1990 Zodiac gunman case.
In fact, Patriot’s protections are even stronger than the analogous rules from the law enforcement world.
Federal prosecutors can issue grand jury subpoenas more or less on their own, but the Patriot Act requires the FBI to get a judge’s permission first. In addition, the act expressly bars the government from investigating Americans “solely upon the basis of activities protected by the first amendment.” It also imposes special limits when investigators seek records from libraries, bookstores, and other sensitive enterprises. The grand jury rules offer no such guarantees.
Finally, there’s the “lone wolf” fix, for terrorists whose ties to overseas groups may be a bit murky. (This tool wasn’t part of the original Patriot Act; it was added in 2004.)
The FBI faced exactly this predicament in the weeks before 9/11. Agents suspected that Zacarias Moussaoui — then in custody on immigration charges — was an Islamist terrorist. But they hadn’t yet connected him to al-Qaeda, so they couldn’t search his apartment or laptop. The 9/11 Commission later speculated that, if agents had been able to investigate Moussaoui, they might have unraveled the entire September 11 plot.
Patriot fixes this problem. It allows investigators to apply for a court order to monitor a suspected terrorist even if they haven’t yet found enough evidence to prove that he’s a member of a foreign terrorist organization.
Again, the Patriot Act contains robust protections for civil liberties. Investigators can’t start monitoring a lone wolf unilaterally; they must appear before a judge and convince him to authorize the surveillance. Just as importantly, this tool doesn’t apply to American citizens or even many types of aliens. It only applies to temporary visitors to this country — tourists, holders of student visas, and the like.
Fortunately, the House quickly fixed its mistake. Last week’s special vote required a two-thirds supermajority, and the tally fell a few members short. But the reauthorization bill easily passed on Monday, when it was brought back to the floor for an ordinary, simple-majority vote. Now it’s up to the Senate to act before parts of the Patriot Act expire at the end of the month.
Let’s hope it does so promptly. Al-Qaeda hasn’t given up. Neither should we.
— Nathan A. Sales is a law professor at George Mason University. He served in the George W. Bush administration at the Justice Department and as deputy assistant secretary of homeland security for policy.