Politics & Policy

Safe Is Sound

Ramesh Ponnuru’s article “Cracked Safe” makes clear his own misunderstanding of the concern that many people–including such noted conservatives as Paul Weyrich–hold about the Patriot Act. It is not that they “misunderstand” the law but their years in Washington have taught them much of the law’s true impact will be determined by how law enforcement decides to use the powers that it has been handed. In short, they understand only too well the kind of abuses the Patriot Act invites by its wide-open phrasing and its failure to build adequate checks and balances into its provisions.

Weyrich, for one, has made very clear that the Patriot Act in some form or another is likely to remain on the books for a very, very long time because the threat that we face from terrorism will continue indefinitely. We agree that it is imperative law enforcement has the tools it needs to take the fight to terrorists who wish to do America harm. It is equally important to make sure that law enforcement does not start using the powers that Congress intended to be used to fight terrorism to do other things. They may very well have a good reason for wanting the power for domestic law enforcement. If so, they need to make a specific case to Congress to grant them that power to use in non-terrorism related cases.

True, as Ponnuru writes, the Section 213 power for delayed-notification searches (“sneak and peek”) has been ruled constitutional by several federal circuit court decisions prior to passage of the Patriot Act. But a 1995 Supreme Court decision by Justice Clarence Thomas that was issued after those decisions calls into question the constitutionality of sneak-and-peek searches because he maintained the “notice” aspect of executing a search warrant is inherent in the Fourth Amendment. The catch-all sneak and peek provision in the Patriot Act is sweeping in its power–essentially a catch-all that can be applied in any and cases, regardless of whether it is related to terrorism–therefore undermining the intent of the Fourth Amendment, which recognizes the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It is too easily forgotten that at one time British soldiers were able to enter at will the homes of any colonist and to conduct a search. In fact, the colonists’ anger against the British for these searches helped lead to the Revolutionary War.

Ponnuru fails to acknowledge that the FBI has the ability, provided by the Foreign Intelligence Surveillance Act, to conduct completely secret searches (with no notice, ever). The Patriot Act’s sneak-and-peek provision was a way to slip the power to the FBI to conduct secret searches in all criminal cases without ever having to pass a bill through Congress on a stand-alone vote. Such an attempt would have sparked a vigorous debate over the merits of sneak-and-peek searches, but it would also have been one in which the public would have been fully informed about the consequences of such a law and been able to make their views known to Congress.

Then, there is Ponnuru’s charge that under the Safe Act, federal law enforcement would be unable to examine library and business records, in investigations involving so-called “lone wolf” terrorists. What Ponnuru fails to say is that there are powers already available under the traditional criminal law -enforcement measures to pursue such terrorists.

This brings up an important point. The FBI had plenty of power pre-Patriot to pursue terrorists pre-9/11 but failed to use what it had effectively. Then, they received a great deal more through the Patriot Act but little oversight was built into the act to provide checks and balances. Indeed, that oversight can work both ways. It can help to guarantee that the bureau is making effective use of the powers that it has been given, not squandering it. It can also make sure the powers are being used in cases that truly warrant their use–namely catching terrorists.

Fortunately, Ponnuru appears receptive to the use of sunset provisions which are applied to sixteen of the act’s 150-plus provisions, requiring Congress to extend their use past December 31, 2005. Nor should we place so little trust in Congress. After all, they passed the Patriot Act in October 2001. The bill had been rewritten by a bipartisan coalition in the Judiciary Committee under the chairmanship of Jim Sensenbrenner (R., Wisc.) to include concerns regarding constitutional liberties. Then, the House leadership, in an unprecedented act, rewrote the bill to take out the measures, and sent it right to the floor for a vote. Perhaps if the version of the Patriot Act passed by the Judiciary Committee had been sent to the floor, there would be much less concern over it now. Believers in constitutional liberties would have much less cause for concern and Attorney General Ashcroft and company would still be waging the War on Terrorism.

Simply put, a little understanding up front by the Justice Department, which has been handed extraordinary powers by the USA-Patriot Act, would go a long way to putting the concerns of the public to rest and even winning greater trust. Unfortunately, they appear intent on pursuing a different path.

Steve Lilienthal

Director, Center for Technology Policy

Free Congress Foundation

Washington, D.C.

RAMESH PONNURU REPLIES: What is it about the intimidation of witnesses by terrorists that Steve Lilienthal finds so appealing? Seriously. The Patriot Act, in line with previous law, allows terrorism investigators to ask judges for delayed-notification warrants when an immediate tip-off would cause the intimidation of potential witnesses. The Safe Act, which Lilienthal champions, takes away the ability of investigators to get delayed-notification warrants in such cases. That would leave them with a restriction they didn’t face on September 10, 2001.

My article mentioned this defect of the Safe Act. Lilienthal chooses to ignore it.

Instead he wanders down various blind alleys. He claims that “a 1995 Supreme Court decision by Justice Clarence Thomas…calls into question the constitutionality of sneak and peek searches because he maintained the ‘notice’ aspect of executing a search warrant is inherent in the Fourth Amendment.” The reference here appears to be to Wilson v. Arkansas–at least that’s the case other members of Lilienthal’s anti-Patriot Act coalition use to make this point. But that case says zilch about delayed-notice searches.

Wilson concerned whether investigators have to knock and announce a search before conducting it. What Wilson held was that “although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry.” In other words, delayed-notification searches are sometimes, but not always, constitutionally permissible. What does the case say about a statute, such as the Patriot Act, that establishes conditions under which investigators may ask judges to authorize a delayed-notice search? Nothing negative. Wilson suggests that a knock-and-announcement can be dispensed with when nobody is home. Obviously, those are the only circumstances under which the FBI would even attempt a delayed-notification search.

Lilienthal’s history lesson is certainly interesting. What does it have to do with the Patriot Act? The reasons given by historians over the years for the American Revolution are many and varied. So far as I know, no account has ever attributed it to British troops’ failure to provide prompt notice and a copy of the warrant after executing a search. (And just to be clear: Nothing in the Patriot Act allows law-enforcement authorities to search a person’s home without first obtaining a judically approved warrant.)

Lilienthal’s complaint that the delayed-notification provisions of Patriot passed only because Patriot had so many other provisions is silly. Congress routinely passes laws with multiple provisions. Nothing in the Constitution says it can’t. Lilienthal’s argument is with the legislative process itself.

Lilienthal says that it is okay for the Safe Act to restrict terrorism investigators’ ability, under Section 215 of the Patriot Act, to obtain records about suspected “lone wolf” terrorists. The Safe Act, he says, leaves intact provisions outside the Patriot Act that give them the powers they need. What he is getting at here, it seems, is that grand-jury subpoenas can be used to get the same information that 215 subpoenas can. Two points here. First: There are some cases in which grand-jury subpoenas won’t do. Take the case, admittedly rare but impossible to be assumed to be nonexistent, in which the government wants to investigate and prevent suspected terrorism and does not yet have criminal prosecution in mind. Grand-jury subpoenas can arise only out of criminal investigations, so without 215 subpoenas the information would be off-limits. Also, the recipient of a grand-jury subpoena is allowed to tell anyone that the subpoena has been served. Section 215 forbids disclosure. So, for example, the bank can’t tell the suspected terrorist that the feds are looking into his records.

Second: If the legal power conferred by 215 is substantially the same as the traditional grand-jury subpoena, why does Lilienthal object to the former? If prosecutors can use a grand-jury subpoena to find out if Mohammed Atta is involved with the mob, or committing Medicaid fraud, why can’t it use a 215 subpoena to find out if he is planning to fly into the World Trade Center? Grand-jury subpoenas come with no more civil-liberties protections than 215 ones do. I assume that Lilienthal’s complaint must turn on the non-disclosure requirement mentioned above. But that requirement is reasonable in the context of a foreign-intelligence investigation and not likely to lead to a police state.

Finally, there is Lilienthal’s contention that “little oversight was built into the [Patriot] act.” Not true. Section 215 itself provides that “on a semiannual basis, the Attorney General shall fully inform” the House and Senate Intelligence Committees “concerning all requests for the production of tangible things under” that section. The number of requests as of last September was zero. So much for John Ashcroft’s civil-liberties rampage. (Anti-Patriot Act types have it both ways on this, of course. Zero use of 215 powers proves for them that they’re not needed ever–as though the war on terrorism, which they all say they take with the utmost seriousness, will never have to deal with remote contingencies.)

Lilienthal and his confreres should think about taking a different path themselves. They should start by apologizing to Clarence Thomas for dragging the poor justice, who has done nothing to deserve the indignity, into their coalition.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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