Politics & Policy

Patriot Games

House and Senate conferees have finally struck a deal to reauthorize all 16 Patriot Act antiterrorism measures set to expire at the end of this year. Fourteen would be made permanent, demonstrating how essential these tools are–and how empty have been claims lodged against them by civil-liberties extremists. Unfortunately, a small cabal of senators–led by Democrats Russ Feingold, Dick Durbin, and Ken Salazar, along with Republicans Larry Craig, John Sununu, and Lisa Murkowski–is threatening a filibuster that would derail the reauthorization unless Patriot is significantly watered down. Other Democrats are suggesting a three-month renewal–hoping to weaken the act without appearing to oppose it. In doing so, they engage in partisan brinksmanship at the expense of our national security.

The Patriot Act’s most urgently needed improvement was its dismantling of the infamous “wall” that prevented information-sharing between intelligence and law enforcement. This self-imposed barrier to competent threat analysis was a legacy of the Clinton administration’s subordination of public safety to privacy “rights”–and even the supposed rights of non-Americans plotting terrorist attacks. The wall may, for example, have prevented the FBI from locating two 9/11 hijackers the month before they struck. Thanks to Patriot, the wall came down and agents were able to start “connecting the dots.” The government now reports that it has disrupted several terror plots and, in a series of successful prosecutions, broken up cells in New York, Portland, Virginia, and elsewhere. Reauthorization of the Patriot Act would make permanent this information sharing, whose importance is such that it should never have been subject to a sunset clause in the first place.

Beyond the wall, Patriot essentially did two things. It empowered national-security agents to use the same tools that had been available for decades, without controversy, to criminal investigators; and it brought tools that had been antiquated in line with twenty-first-century technology. Among other things, it provided wiretap authority to investigate terrorism offenses, homogenized different standards for gathering evidence of voice and e-mail communications, and harmonized rules for investigative access to broadband and dial-up e-mail. One wonders, again, why these sensible techniques were slated for sunset. The reauthorization deal makes them permanent.

The deal also extends two controversial provisions, but with new four-year sunsets (which will, unfortunately, guarantee a continuing campaign against them). The first is the “library records” section. This provision–which doesn’t even mention libraries, and actually targets business records–has been hyperbolically attacked by the ACLU and by librarian associations, who raise the specter of government thought-police snooping into the reading habits of ordinary Americans. Long before Patriot, though, criminal investigators had broad subpoena authority–including the power to subpoena library records–that resulted in no obvious abuses. Why should our national-security agents be barred from using this same tool? It makes no sense to turn libraries (which several of the 9/11 hijackers used, presumably to do research) into safe havens for terrorists when experience shows that evidence concerning terrorists’ reading material (e.g., jihadist writings and bomb manuals) was a staple of terrorism prosecutions throughout the 1990s. The reauthorization reasonably preserves the “library records” investigative power, but also facilitates congressional oversight and exacts a more thorough showing from the government before agents are authorized to look at records. And recipients of overly intrusive orders to produce evidence will, under the reauthorization, be allowed to challenge them in federal court.

The second provision involves roving wiretaps, which allow investigators to continue court-approved eavesdropping when targets switch phones (as they frequently do to defeat surveillance). Though this tool has been available to agents investigating crimes like drug trafficking since the 1980s, civil-liberties extremists howled at its extension to national-security investigations tracking foreign terrorists. Their claims that Patriot would permit indiscriminate interceptions over broad geographic areas were overstated, given that eavesdropping is not permitted absent a judicial finding of probable cause that an agent of a foreign power is the target. In any case, the reauthorization responds to civil-liberties concerns by–once again–improving oversight and raising standards for the government’s required showing.

“The Patriot Act did not

invent sneak-and-peek

warrants; they have been

around for years.”

The deal would also resolve the kerfuffle over “sneak-and-peek” search warrants, which allow agents to enter a suspect’s premises to conduct a search (as all search warrants do) but–in order to avoid tipping the suspect off about the investigation–allow notice of the search to be delivered long after it has happened. Contrary to the opposition’s suggestion, the Patriot Act did not invent sneak-and-peek warrants; they have been around for years, available if a judge is satisfied beforehand that there is both probable cause and a valid reason for delaying notice. All Patriot did was impose a single, national standard for delaying notice–replacing a hodgepodge of judge-made rules that varied from jurisdiction to jurisdiction. Appropriately, the reauthorization does not restrict the use of sneak-and-peek, but imposes reasonable time limits on the extent of delay, with extensions possible only when a good cause for them has been shown.

The reauthorization also makes laws prohibiting material support to terrorists permanent; extends through 2009 powers to investigate lone-wolf terrorists unconnected to known groups; beefs up enforcement for crimes against land, sea, and air-transportation systems; and strengthens anti-money laundering laws that target terrorist financing.

In short, it accords due deference to individual freedom while recognizing that the right of our citizens to life, liberty, and property cannot be secured without victory in the long war we are fighting. It should be enacted promptly.


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