Politics & Policy

Cracked Safe

Gutting the Patriot Act.

Right after September 11, Congress rushed through a bill, called the Patriot Act, to provide law enforcement with new powers to investigate terrorism. Since then, critics on the left and right have been making all sorts of complaints about the act. Often, these complaints have been based on misunderstandings about the law–sometimes pretty basic ones, as when it has been held responsible for such unrelated phenomena as the detention of enemy combatants.

Now the critics are moving forward with a bill to correct what they see as Patriot’s specific mistakes. The critics have surrendered the moral high ground on the ridiculous-acronym question: Their bill is called the Safe Act. Now there is nothing wrong with the idea of modifying Patriot. Surely such a vast bill contains ill-considered provisions that should be amended or even eliminated. John Berlau recently made a persuasive argument (persuasive, at least, to this non-expert) that the banking-secrecy provisions of the act were unwise.

According to its proponents, the Safe Act is the moderate bill that would correct Patriot’s excesses. Steve Lilienthal, director of the Center for Privacy and Technology Policy at the conservative Free Congress Foundation (Paul Weyrich’s organization), says that the Safe Act would make “sensible and prudent revisions” to the law, called the Patriot Act. It is a “common sense bill” that would merely “ensure the PATRIOT powers are being used in the very way that Congress intended.”

Senators in both parties are sponsors of the Safe Act: Republicans Larry Craig, Mike Crapo, Lisa Murkowski, and John Sununu, have joined forces with Democrats Dick Durbin, Russ Feingold, Ted Kennedy, and Ron Wyden.

Thursday, the Department of Justice issued a letter saying that the Safe Act is not the innocuous proposal it’s made out to be. Attorney General John Ashcroft said that the bill would leave federal law-enforcement officials with fewer powers to investigate terrorism than they had before 9/11–and said that the department would recommend a veto if the bill went to the president.

Take the bill’s treatment of “sneak and peek” searches. Critics of Patriot have howled that it allows federal courts to issue search warrants without providing immediate notification for their targets. A majority of the House actually voted for an amendment last year that restricted this authority–although it’s clear that most of those voting for the amendment had no idea what they were voting on and that the amendment would not win a majority today.

The complaints are not exactly true, since the power to issue sneak-and-peek warrants pre-dates Patriot. Delayed notice can be authorized in one of five conditions: 1) when notification would endanger someone’s life; 2) when it would cause the target to flee; 3) when it would result in the destruction of (or tampering with) evidence; 4) when it would cause the intimidation of potential witnesses; and 5) when it would “otherwise seriously jeopardize[e]” an investigation or “unduly delay[] a trial.” The Safe Act would make it impossible to issue such warrants in the last two cases. In other words, targets in terrorism investigations would have to be notified even if notification would allow them to intimidate witnesses or otherwise jeopardize the investigation. Not for nothing do law-and-order types call this Safe Act provision a “terrorist tip-off” policy. This is not just a retrenchment of Patriot; it’s tougher on law enforcement than pre-Patriot law.

Current law lets the judge who issued the warrant extend the delay in notification “for good cause shown.” The Safe Act restricts the conditions for an extension to the first three listed above. Again, this is more restrictive on law enforcement than pre-Patriot law.

The Safe Act also restricts the ability of terrorism investigators to demand (with court approval) the production of business records relevant to the investigation. The court would have to find “specific and articulable facts to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” This is a higher standard for terrorism investigations than for regular criminal investigations, where “relevance” is the applicable standard, and it would apparently immunize lone-wolf terrorists who are merely sympathizers with a foreign power (or just plain wackos).

The Justice Department’s letter goes into other objections to the Safe Act. (For what it’s worth, I’m not convinced by one Justice complaint: the complaint that the Safe Act sunsets necessary provisions of Patriot. But I can certainly see why, based on the congressional record so far, Justice worries that a momentary lapse of judgment by ignorant congressmen would result in the non-renewal of needed powers.) The ACLU has issued a statement in response. The statement boasts that Ashcroft must be scared that the bill will pass and ridicules the contention that the law would leave law enforcement with fewer powers to fight terrorism than it had on 9/10. It provides no rebuttal to the claim.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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